[Senate Hearing 109-168]
[From the U.S. Government Printing Office]

                                                        S. Hrg. 109-168



                               before the

                       COMMITTEE ON THE JUDICIARY

                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION


                       APRIL 5, AND MAY 10, 2005


                          Serial No. J-109-10


         Printed for the use of the Committee on the Judiciary


24-293                 WASHINGTON : 2005
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                       COMMITTEE ON THE JUDICIARY

                 ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
                       David Brog, Staff Director
                     Michael O'Neill, Chief Counsel
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director

                            C O N T E N T S


                         TUESDAY, APRIL 5, 2005


Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................    37
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin, prepared statement..................................   247
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa, 
  prepared statement.............................................   280
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......    15
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     3
    prepared statement...........................................   283
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     1


Gonzales, Alberto R., Attorney General, Department of Justice, 
  Washington, D.C................................................     5
Mueller, Robert S., III, Director, Federal Bureau of 
  Investigation, Department of Justice, Washington, D.C..........     9

                         QUESTIONS AND ANSWERS

Responses of Alberto R. Gonzales to questions submitted by 
  Senators Specter, Kennedy, Durbin, Grassley, Biden, Feingold, 
  Kyl, and Leahy (June 29, 2005).................................    59
Responses of Alberto R. Gonzales to questions submitted by 
  Senators Specter, Kennedy, Biden, Feingold, Kyl, and Leahy 
  (October 20, 2005).............................................   114
Responses of Robert S. Mueller III to questions submitted by 
  Senators Grassley, Kyl, Leahy and Feingold.....................   192

                       SUBMISSIONS FOR THE RECORD

Gonzales, Alberto R., Attorney General, Department of Justice, 
  Washington, D.C., prepared statement...........................   249
Moschella, William E., Assistant Attorney General:...............
    report on applications to Foreign Intelligence Surveillance 
      Court, April 1, 2005.......................................   287
    report on translation services, April 1, 2005................   289
Mueller, Robert S., III, Director, Federal Bureau of 
  Investigation, Department of Justice, Washington, D.C., 
  prepared statement.............................................   304

                         TUESDAY, MAY 10, 2005


Biden, Hon. Joseph R., Jr., A U.S. Senator from the State of 
  Delaware.......................................................   331
Cornyn, Hon. John, a U.S. Senator from the State of Texas........   321
Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................   322
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.   316
    prepared statement...........................................   441
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................   315


Barr, Bob, former Representative in Congress from the State of 
  Georgia........................................................   333
Cole, David, Professor of Law, Georgetown University Law Center, 
  Washington, D.C................................................   334
Collins, Daniel P., Munger, Tolles and Olsen, LLP, Los Angeles, 
  California.....................................................   336
Craig, Hon. Larry E., a U.S. Senator from the State of Idaho.....   318
Dempsey, James X., Executive Director, Center for Democracy & 
  Technology, Washington, D.C....................................   338
McCarthy, Andrew C., Senior Fellow, Foundation for the Defense of 
  Democracies, Washington, D.C...................................   340
Spaulding, Suzanne E., Managing Director, The Harbour Group, LLC, 
  Washington, D.C................................................   342

                         QUESTIONS AND ANSWERS

Response of Dan Collins to a question submitted by Senator Biden.   361
Response of Suzanne E. Spaulding to a question submitted by 
  Senator Leahy..................................................   363

                       SUBMISSIONS FOR THE RECORD

American Booksellers Association, American Library Association, 
  Association of American Publishers, PEN American Center, 
  Washington, D.C., joint letter.................................   365
American Jewish Committee, Richard T. Foltin, Legislative 
  Director and Counsel, Washington, D.C., letter.................   367
Ashcroft, John, former Attorney General, Department of Justice, 
  Washington, D.C., letter.......................................   369
Barr, Bob, former Representative of Congress from the State of 
  Georgia, prepared statement and letter.........................   378
Cole, David, Professor of Law, Georgetown University Law Center, 
  Washington, D.C., prepared statement...........................   389
Collins, Daniel P., Munger, Tolles and Olsen, LLP, Los Angeles, 
  California, prepared statement.................................   406
Dempsey, James X., Executive Director, Center for Democracy & 
  Technology, Washington, D.C., prepared statement...............   426
League of Women Voters, Kay J. Maxwell, President, Washington, 
  D.C., letter...................................................   440
McCarthy, Andrew C., Senior Fellow, Foundation for the Defense of 
  Democracies, Washington, D.C., prepared statement..............   444
Moschella, William E., Assistant Attorney General, Department of 
  Justice, Washington, D.C.:
    letter, May 3, 2005..........................................   479
    letter, May 6, 2005..........................................   486
Salazar, Hon. Ken, a U.S. Senator from the State of Colorado, 
  prepared statement.............................................   489
Senate Bill of Rights Caucus, statement of principles and 
  attachment.....................................................   491
Spaulding, Suzanne E., Managing Director, The Harbour Group, LLC, 
  Washington, D.C., prepared statement...........................   493



                         TUESDAY, APRIL 5, 2005

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:30 a.m., in 
Room SD-216, Hart Senate Office Building, Hon. Arlen Specter, 
Chairman of the Committee, presiding.
    Present: Senators Specter, Hatch, Kyl, Sessions, Cornyn, 
Coburn, Leahy, Kennedy, Feinstein, Feingold, and Schumer.

                   THE STATE OF PENNSYLVANIA

    Chairman Specter. Ladies and gentlemen, the hour of 9:30 
having arrived, the Senate Judiciary Committee will not proceed 
to this hearing on the PATRIOT Act, and the Committee welcomes 
Attorney General Alberto Gonzales for his first appearance 
before this Committee after his confirmation and, similarly, we 
welcome FBI Director Robert Mueller to take up this very 
important subject.
    I have had a considerable number of comments about my 
health, some on the way walking in this morning, so just a 
brief comment. I have had about a third of the treatments. I am 
doing fine. The doctor predicts a full recovery. I have been on 
the job. In the last 2 weeks during the recess, I could not 
travel a road and spent most of the time here in Washington on 
the job. The most noticeable effect has been the involuntary 
new hairstyling.
    Senator Leahy. I think it looks great.
    Chairman Specter. Well, Patrick, we are practically tied at 
this point.
    Chairman Specter. But I am assured that within a few months 
I will be back to a head of hair comparable to Attorney General 
Gonzales, maybe not quite comparable, but close.
    The hearing on the PATRIOT Act poses very fundamental 
questions of security for our country, with appropriate concern 
for constitutional and civil rights. There is no doubt that the 
fundamental responsibility of Government is to protect its 
citizens, and in the United States, with our deep tradition for 
civil rights and constitutional law, that concern for security 
has to be balanced by new regard for civil rights.
    The report, which was just issued last week by the 
Commission on Intelligence Capabilities of the United States 
regarding weapons of mass destruction, contains some very 
disquieting conclusions which bear directly upon the efficacy 
of the PATRIOT Act and our overall efforts as security.
    Without going into the conclusions in any depth at this 
time, a couple point up the basic concern where the Commission 
reported that the clashes between the various intelligence 
agencies, concentrating specifically on the CIA and FBI, exist 
not only in regards to which agency gets credit for 
intelligence reports, but also in the field where lives are at 
stake. The Commission went on further to say, ``The failure of 
the CIA and FBI to cooperate and share information adequately 
on cases could potentially create a gap in coverage of these 
threats like the one on September 11th, which the attack 
plotters were able to exploit.''
    The Committee will be engaging in comprehensive oversight 
really on the model that the Committee used on Ruby Ridge about 
a decade ago. A team has already met with Director Mueller on 
the issue of coordination, set up where I contacted him, 
personally, and we met with representatives of our staffs on 
February the 1st. The report which Director Mueller gave was 
significantly more optimistic with respect to the coordination 
than as has been the report of the Commission last week. That 
is something that we will want to consider during the course of 
these hearings but, as noted, the principal focus of the 
hearings is on the PATRIOT Act itself.
    In my view, there are very, very important provisions in 
the PATRIOT Act which need to be reauthorized, not all perhaps, 
but some very important provisions. The wall separating the 
Foreign Intelligence Surveillance Act is down and has been 
very, very useful in law enforcement so that evidence obtained 
pursuant to the Foreign Intelligence Surveillance Act warrant 
can be used in a criminal proceeding. The provisions on 
nationwide search warrants are certainly necessary. The 
material support for terrorist prohibition is a very important 
    There have been questions raised by both the right and the 
left on the political spectrum about some of the other 
provisions, as we all know, with respect to the authority to 
seize tangible things. The illustration of that has been the 
library books, so to speak, and we will hear from the Attorney 
General and the Director on this subject.
    The question arises, in my mind, as to whether the 
traditional standards for probable cause ought not to be used 
in obtaining materials of that sort, a concern that I expressed 
to Attorney General Gonzales during his confirmation hearings 
and I have expressed also to Director Mueller. The issues of 
the so-called sneak-and-peek provisions, where there are five 
exceptions, and one of the exceptions is so broad that it could 
be a coverall to not have a limit of time as to when the 
subject of the sneak-and-peek is informed. That is something 
which we will take a look at.
    The roving wiretaps provision has also been subject to 
certain challenges to the identity of the person, whether a 
description is sufficient and how many technical means can be 
used to obtain.
    Those are all issues which we will look into during the 
course of this hearing.
    We have asked the Attorney General and Director to limit 
their opening remarks to 10 minutes, with their full statements 
made a part of the record. We will work through until 1 o'clock 
or a convenient break point about that time, and the Attorney 
General and the Director have already been asked to be 
available in the afternoon because I think we will have a large 
attendance at this session with questions. We will have 7-
minute rounds of questions. I am right up to 7 minutes now, and 
I want to yield, at this point, to my distinguished ranking 
member, Senator Leahy.

                        STATE OF VERMONT

    Senator Leahy. Thank you very much, Mr. Chairman. I do feel 
this is an extremely important meeting, and it is good to have 
oversight. I was delighted, also, to hear your comments about 
going back to the kind of oversight we did with Ruby Ridge. I 
agree with you that that was an example of how oversight can 
and should be done, and we should go back to that.
    On a September morning, as we all know, three-and-a-half 
years ago nearly 3,000 lives were lost on American soil. Our 
lives, our lives as Americans, changed instantly. In the 
aftermath of the 9/11 attacks Congress moved quickly--some have 
said too quickly--to give Federal authority substantial new 
powers to investigate and prosecute terrorism. The USA PATRIOT 
Act was signed into law just 6 weeks later.
    Some of us sitting here today contributed to the PATRIOT 
Act. We worked together in a bipartisan manner, and with common 
resolve to craft a bill that we hoped would make us safer as a 
Nation. Freedom and security are always in tension in our 
society, but we tried our best to strike the right balance. Now 
it is time to return to this discussion to assess what aspects 
we got right and what modifications need to be made.
    I negotiated many of the provisions of the PATRIOT Act and 
am gratified to have been able to add several checks and 
balances that were not in the initial proposal. The White House 
broke its word on some agreements that we had mutually reached 
to strike a better balance on some of the PATRIOT Act's 
provisions. It is also true that additional checks and balances 
that I and others sought, had the White House agreed to them, 
would have yielded the same benefits to our law enforcement 
efforts, but with greater accountability. In the final 
negotiating session, former House Majority Leader Dick Armey 
and I joined together to insist that we add a sunset for 
certain governmental powers that have great potential to affect 
the civil liberties of the American people. That is why we are 
here today because that sunset provision ensured that we would 
revisit the PATRIOT Act and shine some sunlight on how it has 
been implemented.
    Before we rush to renew any controversial powers created by 
the PATRIOT Act, we need to understand how these powers have 
been used and whether they have been effective. A few weeks 
ago, we celebrated the first national Sunshine Week with a 
hearing on open Government and bipartisan calls for 
accountability. We should do the same in our oversight.
    We should bear in mind the 9/11 Commission's counsel about 
the PATRIOT Act. They wrote, ``The burden of proof for 
retaining a particular governmental power should be on the 
Executive to explain, A, that the power actually materially 
enhances security, and, B, that there is adequate supervision 
of the Executive's use of the powers to ensure protection of 
civil liberties.''
    We are in a new Congress with a new Chairman of this 
Committee. Chairman Specter has a distinguished record as a 
steadfast advocate and practitioner of meaningful oversight--of 
meaningful oversight. We have before us a new Attorney General 
who has pledged to work with us on a number of issues, 
including the PATRIOT Act. The American people deserve to be 
represented by a Congress that takes its oversight 
responsibilities seriously. The breakdown of cooperation 
following the passage of the PATRIOT Act has fostered distrust. 
We can change that by working together to achieve the right 
balance in our Antiterrorism Act by allowing the appropriate 
amount of sunshine to light what we are doing.
    We have heard over and over again there have been no abuses 
as a result of the PATRIOT Act, but it has been difficult, if 
not impossible, to verify that claim when some of the most 
controversial surveillance powers in the act operated under a 
cloak of secrecy. We know the Government is using its 
surveillance powers under the Foreign Intelligence Surveillance 
Act more than ever, but everything else about FISA is secret. 
This difficulty of assessing the impact on civil liberties has 
been exacerbated greatly by the administration's obstruction of 
legitimate oversight.
    Now, whether or not there have been abuses under the 
PATRIOT Act, the unchecked growth of secret surveillance powers 
and technology, with no real oversight by the Congress to the 
courts, has resulted in clear abuses by the executive branch. 
We have seen secret arrests and secret hearings of hundreds of 
people for the first time in U.S. history; detentions without 
charges and denial of access to counsel; misapplication of the 
material witness statute as a sort of general prevention 
detention law; discriminatory targeting of Arabs and Muslims; 
selective enforcement--selective enforcement--of the 
immigration laws; and the documented mistreatment of aliens 
held on immigration charges.
    These abuses harm our national security as well as civil 
liberties. They serve as recruiting posters for terrorists, 
intimidate American communities from cooperating with law 
enforcement agencies, and when they misuse limited 
antiterrorism resources, they make it more likely real 
terrorists are going to escape detection.
    Beyond this, the administration has used brutal and 
degrading interrogation techniques against detainees in 
Afghanistan, Iraq, and Guantanamo Bay. Those run counter to 
past American military traditions. Information about these 
disgraceful acts continue to trickle out in large part only 
because of a persistent press and the use of FOIA not by the 
oversight this Congress should do.
    In yet another example of abuse, recent press reports 
provide disturbing details about how the administration 
embraced the use of extraordinary rendition after the 9/11 
attacks. Several press reports detail the CIA's use of jets to 
secretly transfer detainees to places around the world where 
they were going to be tortured.
    In defending the administration's rendition policy, the 
President said, in his March 17 press conference, that ``we 
seek assurances that nobody will be tortured when we render a 
person back to their home country.'' That statement came only 
10 days after Attorney General Gonzales acknowledged that we 
cannot fully control what happens to detainees transferred to 
other Nations. He added that he does not know whether these 
countries have always complied with their promises.
    There are always going to be scandals and tragedies in a 
Nation's history. What makes America special is that we do not 
hide from our mistakes; we investigate them, we learn from 
them; and we make sure they do not happen again. When 
necessary, we change our laws to reflect the lessons we have 
learned. The spirit of openness and accountability are what 
bring us here today to reconsider portions of the PATRIOT Act.
    Mr. Chairman, I applaud you for doing this. The kind of 
oversight that you have is similar to what you did in Ruby 
Ridge, and we are going to be doing far, far better for the 
country, for the Committee, and for the Senate.
    Chairman Specter. Thank you very much, Senator Leahy.
    Attorney General Gonzales and Director Mueller, would you 
rise, please.
    Do each of you solemnly swear that the testimony you will 
present before the Senate Judiciary Committee will be the 
truth, the whole truth and nothing but the truth so help you 
    Attorney General Gonzales. I do.
    Director Mueller. I do.
    Chairman Specter. Attorney General Gonzales, we again 
welcome you here for the first of the oversight hearings. We 
note some of your recent comments showing some willingness to 
consider some modifications. They have been described in the 
media as technical, but we welcome that approach, and we look 
forward to your testimony.
    The floor is yours.

                  OF JUSTICE, WASHINGTON, D.C.

    Attorney General Gonzales. Thank you, Mr. Chairman. 
Chairman Specter, Senator Leahy and members of the Committee, I 
am pleased to be here with Director Mueller to discuss an issue 
relating to the security of the American people.
    Following the attacks of September 11th, 2001, the 
administration and Congress did come together to prevent such a 
tragedy from happening again. One result of our collaboration 
was the USA PATRIOT Act, which was passed by Congress with 
overwhelming bipartisan support. Since then, the Act has been 
integral to the Government's prosecution of the war on 
terrorism. Thanks, in part, to the act, we have dismantled 
terrorist cells, disrupted terrorist plots and captured 
terrorists before they could strike.
    Many of the most important authorities in the Act are 
scheduled to expire on December 31, 2005. It is important that 
these authorities remain available, in my judgment. Al Qaeda 
and other terrorist groups still pose a grave threat to the 
security of the American people, and now is not the time to 
relinquish some of our most effective tools in this fight.
    As Congress considers whether to renew these provisions, I 
am open to suggestions for clarifying and strengthening the 
act. I look forward to meeting with those, both inside and 
outside of Congress, who have expressed concerns about the act, 
but let me be clear that I will not support any proposal that 
would undermine our ability to combat terrorism effectively.
    All of us have the same objective, ensuring the security of 
the American people, while preserving our civil liberties. I, 
therefore, hope that we will consider reauthorization in a calm 
and thoughtful manner. Our dialogue should be based on facts 
rather than exaggeration. Because I believe that this 
discussion must be conducted in an open and honest fashion, I 
will begin my testimony today by presenting this Committee with 
new information recently declassified about the use of certain 
PATRIOT Act provisions.
    Of the 16 provisions scheduled to sunset, some members of 
this Committee had raised the most concern about Sections 206 
and 215. Section 215 granted national security investigators 
authority to seek a court order requiring the production of 
records relevant to their investigation. Just as prosecutors 
use grand jury subpoenas as the building blocks of criminal 
investigations, investigators in international terrorism and 
espionage cases must have the ability, with appropriate 
safeguards, to request production of evidence that can be 
essential to the success of an intelligence investigation.
    To be clear, a Section 215 order, like a subpoena, does not 
authorize Government investigators to enter anyone's home or 
search anyone's property. It is merely a request for 
information. A Federal judge must approve every request for 
records under Section 215, and the FISA Court has granted the 
Department's request for a 215 order 35 times, as of March 30, 
    Although prosecutors have long been able to obtain library 
records in connection with a criminal investigation, I 
recognize that Section 215 may be the act's most controversial 
provision principally because of fears concerning the 
theoretical use of the provision to obtain library records. 
However, I can report the Department has not sought a Section 
215 order to obtain library or bookstore records, medical 
records or gun sale records; rather, the provision, to date, 
has been used only to obtain driver's license records, public 
accommodation records, apartment leasing records, credit card 
records and subscriber information such as names and addresses 
for telephone numbers captured through court-authorized pen 
register devices.
    Going forward, the Department anticipates that our use of 
Section 215 will increase as we continue to use the provision 
to obtain subscriber information for telephone numbers captured 
through court-authorized pen register devices just as such 
information is routinely obtained in criminal investigations.
    Although some of the concerns expressed about Section 215 
have been based on inaccurate fears about its use, other 
criticisms have apparently been based on possible ambiguity in 
the law. The Department has already stated in litigation that 
the recipient of a Section 215 order may consult with his 
attorney and may challenge that order in Court. The Department 
has also stated that the Government may seek, and a court may 
require, only the production of records that are relevant to a 
national security investigation, a standard similar to the 
relevant standard that applies to grand jury subpoenas in 
criminal cases.
    The text of Section 215, however, is not as clear as it 
could be in these respects. The Department, therefore, is 
willing to support amendments to Section 215 to clarify these 
points. We cannot, however, support elevating the relevance 
standard under Section 215 to probable cause. According to our 
lawyers and agents, raising the standard would render Section 
215 a dead letter. As we all know, probable cause is a standard 
that law enforcement must meet to justify an arrest. It should 
not be applied to preliminary investigative tools such as grand 
jury subpoenas or Section 215 orders which are used to 
determine whether more intrusive investigative techniques 
requiring probable cause, such as electronic surveillance, are 
    Section 206, also, provides terrorism investigators with an 
authority long possessed by criminal investigators. In 1986, 
Congress authorized the use of multi-point or roving wiretaps 
in criminal investigations. Before the PATRIOT Act, however, 
these orders were not available for national security 
investigations under FISA. Therefore, when international 
terrorists or spies switch telephones, investigators had to 
return to the FISA Court for a new surveillance order and risk 
missing key conversations. In a post-9/11 world, we cannot take 
that risk.
    Section 206 fixed this problem by authorizing multi-point 
surveillance of international terrorists or a spy when a judge 
finds that the target may take action to thwart surveillance. 
As of March 30th, this provision had been used 49 times and has 
been effective in monitoring international terrorists and 
    Another important FISA-related PATRIOT Act provision is 
Section 207. Prior to the act, the Justice Department invested 
considerable time returning to court to renew existing orders 
granted by the FISA Court. Section 207 substantially reduced 
this investment of time by increasing the maximum time duration 
for FISA electronic surveillance and physical search orders.
    The Department estimates that Section 207 has saved nearly 
60,000 attorney hours. In other words, it has saved 30 lawyers 
a year's work, and this estimate does not account for time 
saved by FBI agents, administrative staff and the Judiciary. 
Department personnel were able to spend that time pursuing 
other investigations and oversight matters.
    Given Section 207's success, I am, today, proposing 
additional amendments to increase the efficiency of the FISA 
process, copies of which will be presented to this Committee 
today. Had these proposals been included in the PATRIOT Act, 
the Department estimates that an additional 25,000 attorney 
hours would have been saved in the interim. Most of these ideas 
were specifically endorsed in the recent report of the WMD 
Commission, which said that the amendments would allow the 
Department both to focus their attention where it is most 
needed and to maintain the current level of oversight paid to 
cases implicating the civil liberties of Americans.
    Finally, I would like to touch on another provision that 
has generated significant discussion--Section 213--which is not 
scheduled to sunset. It established a nationwide standard for 
issuing delayed-notice search warrants which have been used by 
law enforcement in criminal investigations and approved by 
courts for decades, as we all know.
    Under Section 213, law enforcement must always, always 
provide notice to a person whose property is searched. A judge 
may allow that notice to be temporarily delayed in a few 
circumstances, but that person will always receive 
notification. The Department uses this tool only where 
necessary. For instance, from enactment of the PATRIOT Act 
through January 31, 2005, the Department used Section 213 to 
request approximately 155 delayed-notice search warrants which 
have been issued in terrorism, drug, murder and other criminal 
investigations. We estimate that this number represents less 
than one-fifth of 1 percent of all search warrants obtained by 
the Department during this time. In other words, in more than 
499 of 500 cases, the Department provides immediate notice of a 
search. In appropriate cases, however, delayed-notice search 
warrants are necessary because if terrorists or other criminals 
are prematurely tipped off that they are under investigation, 
they may destroy evidence, harm witnesses or flee prosecution.
    I hope that the information I have presented will demystify 
these essential national security tools, eliminate some of the 
confusion surrounding their use and enrich the debate about the 
Department's counterterrorism efforts. The tools I have 
discussed today are critical in my judgment to our Nation's 
success in the war against terrorism. I am, therefore, 
committed to providing the information that this Committee and 
the American public need to thoroughly evaluate the PATRIOT 
Act. The Act has a proven record of success in protecting the 
security of the American people, and we cannot afford to allow 
its most important provisions to sunset.
    I look forward to working with the Committee closely in the 
weeks ahead, listening to your concerns and joining together 
again to protect the security of the American people. Thank 
you, Mr. Chairman.
    [The prepared statement of Attorney General Gonzales 
appears as a submission for the record.]
    Chairman Specter. Thank you very much, Attorney General 
    Senator Leahy. Mr. Chairman?
    Chairman Specter. Senator Leahy?
    Senator Leahy. I just would ask consent that the Attorney 
General has submitted testimony, which we all received, and 
testimony actually delivered here today both be in the record 
because there are some substantial differences.
    Senator Leahy. Without objection, the written testimony 
submitted will be made a part of the record. I think I noted 
that earlier, but, in any event, they will be made a part of 
the record.
    We now turn to the Director of the FBI. We welcome you, 
again, Director Mueller. Thank you for your courtesies of the 
recent meeting which you and I had with our respective staffs, 
and we will be pursuing that, among other matters.
    Now, we look forward to your testimony.


    Director Mueller. Thank you, and good morning, Mr. 
Chairman. Good morning, Senator Leahy and members of the 
Committee. I am pleased to be here today with the Attorney 
General to talk about the PATRIOT Act and how it has assisted 
the FBI with its efforts on the war on terror.
    The PATRIOT Act has, indeed, changed the way that we in the 
FBI operate, and it has assisted us, in many ways, in our 
counterterrorism successes. My formal statement was submitted 
for the record, and it focuses primarily on the 16 provisions 
that are scheduled to sunset at the end of this year. While I 
firmly believe it is very important to our national security 
that these provisions be renewed, I want to emphasize this 
morning the importance of the information-sharing provisions to 
the war on terror.
    Mr. Chairman, the information-sharing provisions are 
consistently identified by FBI field offices as the most 
important provisions in the PATRIOT Act. The ability to share 
crucial information has significantly altered the landscape for 
conducting terrorism investigations, allowing for a more 
coordinated and effective approach. Specifically, our field 
offices note that these provisions enable case agents to 
involve other agencies in investigations resulting in a style 
of teamwork that, first of all, enables us to be more effective 
and responsive in our investigative efforts, improves the 
utilization of our resources, allows for follow-up 
investigations by other agencies--for instance, when the 
subject of the investigation leaves the United States--and it, 
also, helps prevent the compromise of foreign intelligence 
    Even though the law prior to the PATRIOT Act provided for 
some exchange of information, the law was complex and, as a 
result, agents often erred on the side of caution and refrained 
from sharing information. The PATRIOT Act's information-sharing 
provisions, Sections 203 and 218, eliminated that hesitation 
and allows agents to more openly work with other Government 
entities, resulting in a much stronger team approach. This 
approach is necessary in order to effectively prevent and 
detect the complex web of terrorist activity.
    FBI field offices report enhanced liaison with State, 
local, tribal and, as important, other Federal agencies, 
including the intelligence agencies across the country. Our 
legal attache offices overseas report improved relationships 
with other intelligence agencies operating overseas.
    Prior to the PATRIOT Act, Federal law was interpreted to 
prohibit criminal investigators from disclosing criminal 
wiretap or grand jury information to counterparts working on 
intelligence investigations.
    Sections 203(a) and (b) of the PATRIOT Act eliminated these 
barriers to information sharing, allowing for routine sharing 
of information derived from these important criminal tools.
    Section 203(d) ensures that information developed through 
law enforcement methods other than grand jury testimony or 
criminal wiretaps can also be shared with intelligence partners 
at the Federal, State and local levels, as well as with our 
partners overseas.
    Section 218 of the PATRIOT Act was the first step in 
dismantling the wall between criminal and intelligence 
investigators. It eliminates the primary purpose requirement 
under FISA and replaces it with a significant purpose test. FBI 
agents working on intelligence and counterintelligence matters 
now have greater latitude to consult criminal investigators or 
prosecutors without putting their investigations at risk.
    Prosecutors are now involved at the earliest stages of 
international terrorism investigations, and prosecutors are 
often co-located with the Joint Terrorism Task Forces and are 
able to provide immediate input regarding the use of criminal 
charges to stop terrorist activity, including the prevention of 
terrorist attacks.
    Mr. Chairman, if these information-sharing provisions are 
allowed to sunset, the element of uncertainty and confusion 
that existed in the past will be reintroduced. Agents will 
again hesitate and spend precious time seeking clarification of 
complicated information-sharing restrictions. This hesitation 
will lead to less teamwork, less efficiency and, ultimately, 
loss of effectiveness in the war on terror.
    Experience has taught the FBI that there are no clear 
dividing lines that distinguish criminal, terrorist and foreign 
intelligence activity. Criminal, terrorist and foreign 
intelligence organizations and their activities are often 
interrelated or interdependent. FBI files contain many examples 
of investigations where information sharing between 
counterterrorism, counterintelligence and criminal intelligence 
investigations was essential to our ability to protect the 
United States from terrorist or intelligence activity and 
criminal activity.
    For example, the FBI investigated a group of Pakistan-based 
individuals who were participating in arms trafficking, the 
production and distribution of multiton quantities of hashish 
and heroin and participate in the discussion of an exchange of 
a large quantity of drugs for four stinger anti-aircraft 
missiles to be used by al Qaeda in Afghanistan. The operation, 
thanks to the ability to share information, resulted in the 
arrest, indictment and subsequent extradition of the subjects 
from Hong Kong to San Diego to face charges of providing 
material support to al Qaeda, as well as charges relating to 
their drug activities.
    In yet another example in the aftermath of September 11th, 
a reliable intelligence source identified a naturalized United 
States citizen from the Middle East as being a leader among a 
group of Islamic extremists operating in the United States. The 
subject's extremist views, affiliations with other terrorist 
subjects and heavy involvement in the stock market increased 
the potential that he was a possible financier and material 
supporter of terrorist activities.
    Early in the criminal investigation, it was confirmed that 
the subject had developed a complex scheme to defraud multiple 
brokerage firms of large amounts of money. A close interaction 
between the criminal and intelligence cases was critical to the 
successful arrest of the subject before he was able to leave 
the country, and it ultimately resulted in his guilty plea to 
criminal charges.
    The increased coordination and information sharing between 
intelligence and law enforcement agents facilitated by the 
PATRIOT Act has allowed the FBI to approach cases such as these 
as a single integrated investigation that allows us to see the 
full picture not separate pieces of a criminal case, separate 
pieces of an intelligence case, separate pieces of information. 
It allows us to work together to successfully bring together 
various pieces of information regardless of whether it is in 
the field of counterintelligence, terrorism or criminal and 
enables us to depend on that free flow of information between 
respective investigations, investigators, and analysts to 
successfully perform our responsibilities.
    Mr. Chairman, critics of the PATRIOT Act's information-
sharing provisions have suggested that they lack sufficient 
safeguards or that they can be used to circumvent 
constitutional safeguards by conducting a search or wiretap for 
the purpose of investigating a crime without demonstrating 
probable cause that a crime has been committed. These concerns 
ignore the considerable safeguards and limitations that are 
firmly in place.
    With respect to changes in the wiretap statute, Section 
203(b) only allows for the sharing of a certain limited class 
of information gathered under Title III, such as information 
relating to a serious national security matter. In addition, 
the Title III statute imposes substantial burdens on law 
enforcement and judicial approval prior to the initiation of 
the wiretap. Section 203(b) does not reduce these requirements. 
It simply permits the appropriate sharing of information after 
it is collected under court order.
    Mr. Chairman and members of the Committee, the provisions 
of the PATRIOT Act that I have discussed today are crucial to 
our present and future success in the global war on terrorism. 
By responsibly using the statute provided by Congress, the FBI 
has made substantial progress in our ability to proactively 
investigate, and prevent terrorism and to protect lives, while, 
at the same time and as important, protecting civil liberties.
    In renewing these provisions scheduled to sunset at the end 
of this year, Congress will ensure that the FBI will continue 
to have the tools we need to combat the very real threat to 
America posed by terrorists and their supporters.
    Mr. Chairman, thank you, again, for the opportunity to 
appear before you today, and I, too, am happy to answer any 
questions you might have.
    [The prepared statement of Director Mueller appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Director Mueller.
    We will now proceed with the 7-minute rounds in order of 
arrival, which is the custom of the Committee.
    Attorney General Gonzales, I am pleased to see some of the 
modifications which you have suggested would be acceptable to 
the Department of Justice with respect to the recipient may 
consult an attorney, the recipient may challenge in court not 
only documents relevant to national security investigations 
would be involved.
    I note that on the information provided by the Department 
of Justice there has not been a request under the ``tangible 
things'' category for library or medical records. That has been 
an area of substantial concern to some. Would you see any 
problem on specifically excluding, in a reauthorization of the 
PATRIOT Act, authority to obtain a library or medical records?
    Attorney General Gonzales. Mr. Chairman, let me try to 
reassure the Committee and the American people that the 
Department has no interest in rummaging through the library 
records or the medical records of Americans. That is not 
something that we have an interest in. We do have--
    Chairman Specter. Does that mean you would agree to 
excluding them?
    Attorney General Gonzales. We do have an interest, however, 
in records that may help us capture terrorists, and there may 
be an occasion where having the tools of 215 to access this 
kind of information may be very helpful to the Department in 
dealing with a terrorist threat.
    The fact that this authority has not been used for these 
kinds of records means that the Department, in my judgment, has 
acted judiciously. It should not be held against us that we 
have exercised, in my judgment, restraint. It is comparable to 
a police officer who carries a gun for 15 years and never draws 
it. Does that mean that for the next 5 years he should not have 
that weapon because he has never used it?
    Chairman Specter. Attorney General Gonzales, I do not think 
your analogy is apt, but if you want to retain those records as 
your position, I understand, and let me move on.
    The staff of the Judiciary Committee was briefed by the 
Department of Justice last month, and we were advised that it 
takes an average of 71 days to obtain a warrant under the 
Foreign Intelligence Surveillance Act. Does that sound right to 
    Attorney General Gonzales. Sir, I do not know whether or 
not that is an accurate number. Perhaps Director Mueller might 
have more information about that.
    Chairman Specter. Would you check on that?
    Attorney General Gonzales. I will check on that.
    Chairman Specter. Because if it is true, and I note 
Director Mueller's forehead furrowing a bit on that. It would 
certainly be very stale on the kind of information that a law 
enforcement officer would need. We have seen on oversight from 
this Committee before, going back to Wen Ho Lee, enormous 
problems in the Department of Justice on approval of warrants 
under the Foreign Intelligence Surveillance Act, and we have 
had some concerns with the FBI standard, which we go into back 
in June of 2002 with Director Mueller. That is a very vital 
weapon in the arsenal. The Committee would like to know how 
long it takes and to be assured that you are really on top of 
that issue.
    Director Mueller, on the so-called sneak-and-peek warrants, 
we have been provided with information just yesterday on some 
of the statistical data on the number of times these warrants 
were used. Sneak-and-peek means, for those who do not know, 
that there is no immediate notification given to the subject 
who has been the recipient of the search, of the secret search.
    There are some 92 instances where the catch-all category of 
``seriously jeopardizing an investigation'' was relied upon. 
There are in the statute a number of specific justifications 
for the delay, endangering life or physical safety, flight from 
prosecution, destruction or tampering with evidence, 
intimidation of a potential witness. The broad catch-all of 
``seriously jeopardizing an investigation'' is so broad that 
there are justifiable concerns that it can include practically 
    Could that category be eliminated or could you look to the 
situations where you have used that catch-all to be specific 
and have specific items, such as the first four, which give 
definable parameters to this delayed notification?
    Director Mueller. Mr. Chairman, I do not believe that we 
would be well served by eliminating that provision. There are a 
number of circumstances that do not fit easily into the first 
four. An example is a recent case we had. It was a drug-
smuggling operation from Canada in which individuals were 
bringing in a substantial amount of ecstasy from Canada. We had 
information, the DEA had information that this ecstasy was 
coming from Canada. They, quite clearly, did not want it on the 
streets, but they did not know all of the information as to 
whom it was to be distributed.
    When these distributors came to the United States, they 
stopped at a restaurant. As they stopped at the restaurant and 
ate their meals, the agents, pursuant to a warrant, were able 
to enter the car, pull out the ecstasy so it would never reach 
the street, strewn glass around, indicating that the car had 
been broken into, and the individuals came back on their way. 
That ability to delay notification of that entry into the car 
allowed us to arrest 103, I think--somewhere over 100 persons 
who were involved in that conspiracy.
    Chairman Specter. Director--
    Director Mueller. Now, the delay there was for less than 30 
days, and it was pursuant to a court order.
    The only other point I would make, Mr. Chairman, is that I 
think to characterize it as sneak-and-peek is wrong. It is a 
delayed notification. It is delayed notification that is 
pursuant to an order of the court.
    Chairman Specter. Director Mueller, let me interrupt you to 
ask you to give specific illustrations. I like to be fact-
specific, and the one you gave is impressive, and we would like 
more of them. We were provided information that one period was 
180 days, and we want to get into the specifics of that, but I 
have only one second left, and I will conclude and yield now to 
Senator Leahy. I want to stay right on time.
    Senator Leahy. Thank you, Mr. Chairman.
    I mentioned in my opening statement that the 9/11 
Commission's report stated, with regard to extending the 
PATRIOT Act provisions, ``The burden of proof for retaining a 
particular governmental power should be on the Executive.''
    Mr. Attorney General, do you agree that whenever possible 
the Government should make its case in public not in a 
classified report?
    Attorney General Gonzales. Certainly, I believe that to be 
the case, Senator Leahy, that we have a responsibility to 
inform not just the Congress, but the American people, about 
the actions of its Government.
    Senator Leahy. I agree with you there. I noted that when 
Attorney General Ashcroft resigned, in his speech, he said, 
``The objective of securing the safety of Americans from crime 
and terror has been achieved.'' If we take that too literally, 
we do not need you, we do not need Director Mueller, we do not 
need the police officers standing around this place. I know 
that you feel there is much work that still has to be done. I 
hope you will take a different tact than your predecessor and 
you will cooperate with this Committee as we consider how to 
improve upon and adjust the balances, we drew in the aftermath 
of 9/11 by way of the PATRIOT Act.
    I believe that many of us would be willing to consider 
renewing some of the provisions that are subject to sunset, but 
you have got to have a sense of trust through greater 
accountability from the Department first.
    I would like to see more and more regular reporting. Part 
of the difficulty with conducting oversight is the length of 
time it takes to get any information. Reports required by 
statute to be filed are months late or we never get them at 
all. For example, the PATRIOT Act required a report on the 
FBI's translator program, but that report was not submitted 
until late December 2004. Last Fall, we directed the FBI to 
issue a broader set of data by a date certain, September 14th, 
2005 [sic]. It was submitted on the 1st of April, April Fool's 
Day, over 2 months late.
    The Department has also been slow in responding to 
questions. Late last Friday, we finally received answers to 
questions submitted to Director Mueller a year ago, last May. 
We, also, received answers to questions that we submitted to 
Deputy Attorney General Comey after a PATRIOT Act hearing.
    These are the reports and the outstanding hearing written 
questions and answers that were submitted between Friday, the 
1st of April, and yesterday. I mention that because I do not 
think we would even have all of these. I mean, they come in at 
the last second, and they came in because we are having this 
hearing. If the Chairman had not scheduled it, I doubt if we 
would have had this. Some of them are over a year old.
    And then sometimes it is hard to figure out how we do it. 
Look at these charts over here representing responses to FOIA 
requests over the past 6 months. The FBI has released the same 
e-mail in three different versions. The first version was 
released in response to the FOIA lawsuit on October 15th, 2004. 
It is almost entirely redacted. So, then, you come a month 
later, a second version, in response to the FOIA suit, it has 
fewer redactions, but still difficult to decipher. A third 
version was released the following year, after Senator Levin 
requested it, in redacted form.
    Now, are the decisions of redacting made by the FBI or the 
Department of Justice? Because, obviously, three different 
decisions were made here on the exact, same document.
    Attorney General Gonzales. Can I, first, respond to your 
earlier point about being responsive to congressional requests 
for information?
    Senator Leahy. I am complimenting you on getting these 
things in. They are a year late, but they are here.
    Attorney General Gonzales. The good news is you did have an 
answer. The bad news is that it did take us too long to 
respond. I have had discussions with members of my staff to 
advise them that we need to do better. I understand that you 
need information to properly exercise your oversight role, and 
I am committing to you that we are going to do better. We have 
a new process in place so that we can respond in a more timely 
    But in defense of the Department, I am also aware that 
there have been extraordinary demands made by this Committee 
for information, obviously, within your right, but we want to 
be as careful and we want to be as forthright as possible, and 
it has taken us a great deal of time.
    Senator Leahy. But how, over such a short period of time, 
could you have such varying differences on this? I mean, who is 
making these decisions? Is it the Department of Justice or is 
it the FBI?
    Attorney General Gonzales. I do not know specifically about 
these e-mails. I would be happy to look at them specifically 
and give you an answer, but, generally, of course, decisions 
made about how to respond to FOIA litigation, there are 
exemptions within FOIA which would allow the withholding of 
certain information.
    Senator Leahy. I helped write a lot of that FOIA 
legislation. I understand it. The reason I picked this 
particular one is because it is talking about the coercive 
techniques of the Defense Department's interrogations. It is 
interesting what was held out until a member of Congress really 
brought pressure. It said, ``Results obtained from these 
interrogations were suspect at best.'' ``Suspect at best'' was 
the part being kept out. Why was that initially kept out?
    Attorney General Gonzales. Senator Leahy, I really would 
like to study the e-mail and talk to the people involved in 
making that decision before answering that question.
    Senator Leahy. Will you answer the question?
    Attorney General Gonzales. Once I have the information and 
feel that I can respond, give you some kind of answer, I am 
happy to do that.
    Senator Leahy. Article 3 of the Convention Against Torture 
states that ``no state party shall expel, return or extradite a 
person to another state where there are substantial grounds for 
believing they would be in danger of being subjected to 
torture.'' Now, we are part of that treaty. What do you think 
the assurances we get from countries that are known to be 
torturers? When they say, well, we will not torture this person 
you are sending back, do you really think those assurances are 
    Attorney General Gonzales. I think, Senator, that is a 
difficult question that requires sort of a case-by-case 
analysis. We have an obligation not to render people to other 
countries when we believe it is more likely than not they will 
be tortured. The President said we do not engage in torture, we 
do not condone torture, and we are not going to render people 
to countries where we think it is more likely than not they are 
going to be tortured.
    Senator Leahy. My time is up. I will come back to that 
because we do render them to countries that are known to be 
    Chairman Specter. Thank you very much, Senator Leahy.
    Senator Kyl has had to leave to go to a leadership meeting, 
and he will be submitting a number of questions for the record. 
I turn now to our distinguished former Chairman, Senator Hatch.

                            OF UTAH

    Senator Hatch. Well, we welcome both of you to the 
Committee. Of course, the reason we wrote the PATRIOT Act to 
begin with was to provide law enforcement the tools that it 
needs that it did not have in international terrorist 
situations. Many of these tools we already had with regard to 
the Mafia and other types of criminal activity, and so it was 
to update and bring the powers of our law enforcement people 
up-to-speed so that you could really go after international 
terrorists and domestic terrorists as well.
    By the way, as I understand it, there is a 72-hour 
emergency time in which you can apply for a FISA warrant and 
get it, if it is an emergency, just so everybody understands 
    Now, much has been said, and much more will be said, about 
the effect of the PATRIOT Act on civil liberties. This is an 
important debate, but it is a debate that has to be guided by 
the facts, and the fact is that the critics of the PATRIOT Act 
are hard-pressed to provide documentation of any systemic abuse 
of the PATRIOT Act by the Department of Justice, the FBI or any 
other governmental agency. In fact, they are hard-pressed to 
provide any documented abuses of the PATRIOT Act. We have, I 
think, some 24 hearings on this issue and not one time have 
they been able to document an abuse.
    Whenever a relatively new and complex law like the PATRIOT 
Act is implemented by tens of thousands of law enforcement 
officials, there is always a chance for some mistakes, even 
serious mistakes, to be made. I think we need to be vigilant so 
that we minimize the overzealous or improper uses of the 
PATRIOT Act. If we can improve this legislation, we ought to do 
so. I have been particularly heartened by you, General 
Gonzales, and by you as well, Director Mueller, that you are 
willing to look at some changes in the legislation that would 
tighten it up and make it better.
    Now, in both of your prepared testimonies, you will note 
that Section 223 of the PATRIOT Act allows individuals 
aggrieved by any willful violation of the criminal wiretap 
statute or certain provisions of the FISA statute to file an 
action in Federal District Court to recover not less than 
$10,000 in damages. Moreover, Section 223 also requires the 
Department to commence a proceeding to determine whether a 
disciplinary action is warranted against any Federal employee 
found to have violated the wiretap statute.
    Now, the testimony of the Attorney General states, ``To 
date, there have been no administrative disciplinary 
proceedings or civil actions initiated under Section 223 of the 
    First, I want to make sure that I am correct in 
understanding that no actions have been brought, let alone have 
been successfully brought, under Section 223, in the three-and-
a-half years since the PATRIOT Act has been on the books. Am I 
correct in arriving at that conclusion from your comments in 
your statement?
    Attorney General Gonzales. Your understanding is correct, 
    Senator Hatch. That is fine.
    Second, what do you think this record shows about how 
seriously the Department and the Bureau take their 
responsibilities to protect civil liberties as they engage in 
activities to identify and prevent terrorist acts?
    Attorney General Gonzales. Senator, I think that that 
record indicates that we have tried to be careful in the 
exercise of these authorities. I think it, also, reflects the 
fact that I think Congress did a good job in drafting the 
PATRIOT Act and in including appropriate safeguards. We take 
those safeguards very, very carefully. We think they are very, 
very important, a critical part of the PATRIOT Act, and so I 
think that that is also reflected in this record.
    Senator Hatch. Finally, going beyond the absence of cases 
filed under Section 223, can you tell the Committee whether you 
are aware of any documented cases of abuse of any provision of 
the PATRIOT Act?
    Attorney General Gonzales. I am not aware of any documented 
case of abuse. I am aware that an organization yesterday 
released--we received a copy of a letter to Senator Feinstein 
relating to alleged abuses under the PATRIOT Act. It is a very 
lengthy letter. Obviously, we want to look at it very carefully 
in response to it, but based upon our cursory review last 
night, it appears that all of the allegations in that letter do 
not sustain the fact that there has been an abuse of the 
PATRIOT Act or do not even relate to the PATRIOT Act. But, 
again, I want an opportunity to study the letter carefully and 
prepare an appropriate response.
    Senator Hatch. That has been my experience that most of the 
criticisms are of law enforcement not of provisions in the 
PATRIOT Act. They really do not apply. A lot of hysteria that 
has come from allegedly the PATRIOT Act violations really do 
not amount to anything and really cannot be justified.
    I know that Senator Specter will be holding a hearing in a 
few weeks during which several critics of the PATRIOT Act will 
have the opportunity to testify about their concerns. So we 
will look forward to that and see what happens.
    It would be helpful to the Committee if you would look into 
and provide us with a response to any specific charges of 
PATRIOT Act abuses that might be made at that hearing. So I 
would like to you to pay attention to that hearing and tell us 
as soon as you can about those particular abuses. Can we count 
on you to do that in a prompt manner?
    Attorney General Gonzales. You can count on that.
    Senator Hatch. Director Mueller, I think I have just enough 
time to ask this question. Your written testimony closes by 
making a plea for administrative subpoena authority in 
terrorist investigations. You note that Bureau has this 
authority in drug, health care fraud and child exploitation 
cases, among others, just to mention cases that are not 
terrorist involved. You, also, note that such a subpoena would 
be subject to challenge before the courts much like grand jury 
subpoenas may be challenged. Your testimony states, ``In 
investigations where there is a need to obtain information 
expeditiously, Section 215, which does not contain an emergency 
provision, may not be the most effective process to 
    Now, let me ask you and the Attorney General two questions 
about this statement.
    First, are you aware of any instances when a judge was not 
available to Act in a timely manner on a terrorism-related 
investigation? In other words, in short, is anything broken?
    And, second, if it is, in fact, broken or might potentially 
be a problem in the future, why would an administrative 
subpoena provision be a preferable fix to writing an emergency 
judicial review provision into the statute, and why would it be 
better to have a neutral magistrate be involved before the 
subpoena or warrant was issued if a suitable emergency review 
provision were crafted if such a provision is needed at all?
    Director Mueller. Let me respond, if I could, Senator.
    Often we get information relating to threats, and we need 
to immediately find out whether that information is accurate or 
inaccurate, and we need basic records from third parties--hotel 
records. We may get information from the CIA or another agency 
that a person has come into the United States and is staying at 
a particular hotel in Washington, D.C., with an intent to link 
up with somebody else to conduct a terrorist attack in New York 
City. We need information from the hotel. We may even get the 
name of the hotel, and we need to get that information quickly.
    Now, we have been fortunate much of the time to have the 
cooperation of the persons who run these hotels, motels or 
other such agencies where we need third-party information. But 
an administrative subpoena, which we utilize in narcotics 
cases, which Congress has given to us to utilize in narcotics 
cases, health care fraud cases, child pornography cases, a ream 
of other circumstances where we have the same need for third-
party information, the administrative subpoena allows us to get 
that information very quickly so we can maintain the momentum 
of that investigation. An example is ISPs, relating to the use 
of the Internet.
    The benefit of an administrative subpoena is that we can 
get it out, we can get it out there fast--the benefit to the 
Government. The benefit to the person who has been served with 
this subpoena is that they have an opportunity to challenge it 
before a court. They can talk to an attorney. They can 
challenge it before a court if they think it is unwarranted, 
not relevant to--unwarranted, let me just put it that way, or 
burdensome. So there is an advantage to us in terms of speed; 
there is an advantage to the recipient of the subpoena in terms 
of the ability to challenge it in court, as you would challenge 
a grand jury subpoena.
    Chairman Specter. Thank you very much, Senator Hatch.
    Senator Kennedy?
    Senator Kennedy. Thank you, Mr. Chairman, and welcome, 
General, and thank you very much, Mr. Mueller, for being here.
    I would like to, Mr. Mueller, focus your attention on the 
detainee abuse in Guantanamo. On May 10th, 2004, the FBI e-mail 
described the Bureau's efforts to raise the concerns regarding 
the interrogation practices at Guantanamo Bay. According to the 
e-mail, the Defense Department interrogation techniques were so 
coercive the FBI was worried about using the statements 
produced by the interrogations in military prosecutions. The 
concerns of the FBI agents were echoed by U.S. Navy 
interrogators who were so outraged by the abusive techniques 
that had been approved by DOD officials that Navy officials 
considered withdrawing its interrogators from Gitmo.
    Worse, the FBI e-mail describes DOD's refusal to stop using 
the coercive techniques even after it acknowledged that the 
information obtained through coercion was no more substantial 
than what the FBI got using simple investigative techniques, 
and the FBI pointed out that the coercive practices produced 
unreliable information. Further, the problem of using the 
coerced confessions to prosecute the detainees was raised with 
the DOD General Counsel William Haynes, but it did not seem to 
make much of an impression there.
    Do you know, from your own inquiry, whether anyone higher 
up in the Bureau passed its complaints on directly to either 
the Attorney General or the White House counsel or to the 
Secretary of Defense or initiate any criminal investigations of 
these kinds of activities? Did you have the opportunity to 
interview the four Justice Department lawyers named in the e-
mail to see what they did with the information that you gave 
    Director Mueller. My understanding is that persons in the 
hierarchy in the FBI did have conversations and, indeed, 
ultimately, we sent a letter to DOD reflecting concerns about 
certain instances that we had found, our agencies had seen at 
Guantanamo. There had been discussions, I would say, lower down 
in the Bureau with individuals at the Department of Justice 
with regard to appropriate techniques, particularly with regard 
to the understanding that FBI interrogations would be, 
according to our standards, would be necessary if we wished to 
prosecute an individual in the United States.
    Now, in terms of an investigation, I did not undertake an 
investigation as to these four individuals who are listed in 
that e-mail. My understanding is that there were some 
discussions with regard to the techniques that were being used 
in Guantanamo with those persons at DOJ, and my understanding 
is those persons at DOJ had further discussions with the 
Department of Defense. We did, at one point, inquire of our 
agents what procedures they had witnessed that they believed to 
be beyond our purview, and we did provide that information to 
DOD for appropriate resolution.
    Senator Kennedy. So, as I understand, you had a 
communication with DOD. Is that the general counsel or do you 
know? Do you remember?
    Director Mueller. I think it was at lower levels both here 
at the Pentagon, but also down in Guantanamo. I know, in 
looking at some of the e-mails that have been passed, I know 
that there were discussions down at Guantanamo between our 
persons and the general who was in charge of either the base or 
at least the interrogation techniques.
    Senator Kennedy. Is that General Miller?
    Director Mueller. Yes.
    Senator Kennedy. I think the question is how are we going 
to ensure that the FBI is not going to be in the position of 
having to walk out of a room for fear they will be a witness to 
torture and who makes sure the prisoners are not tried and 
convicted on the basis of coerced statements that may be 
completely unreliable? How are you going to make sure that the 
FBI is not put in that position? How are you going to protect 
the Agency?
    Director Mueller. Well, from the outset, we have directed 
our agents to follow our standards. Our standards, from our 
book, is it is the policy of the FBI that no attempt be made to 
obtain a statement by force, threats or promises. From the 
outset, we have directed our agents to follow that standard. So 
we have followed that standard with the understanding that we 
may well be called as agents to testify in a court of law in 
the United States where the issue will be voluntariness and in 
the course of attempting to obtain a conviction.
    Now, that does not mean that there are not other techniques 
that may be used by other entities that may well be legal, 
whether it be the CIA or the DOD. What I was concerned is that 
because our agents testify in the United States voluntariness 
is the standard, I attempted to assure that our agents followed 
that standard.
    Senator Kennedy. Just in that e-mail, it does point out DOD 
finally admitted that the information was the same information 
the Bureau had obtained. Is that basically your understanding?
    Director Mueller. I am not certain of the factual basis for 
that. I will say that it is tremendously important to get 
intelligence as well as providing a basis and predicate for 
going to court in the United States. We have had to modify some 
of our procedures, for instance, with regard to Miranda, when 
the circumstances are such that we would have to forego or use 
a modified Miranda and perhaps forego successfully having a 
person's statement admitted into a U.S. court in those 
circumstances where it is very important to gain intelligence 
as to future threats.
    Senator Kennedy. Let me move just to another area. This is 
on the GAO office found that a total of 44 firearm purchase 
attempts were made by individuals designated as known or 
suspected terrorists by the Federal Government from February 
3rd to June 30th, 2004. In 35 cases, the FBI specifically 
authorized the transactions to proceed because field FBI agents 
were unable to find any disqualifying information such as 
felony convictions or illegal immigration status within the 
federally prescribed 3 days.
    In response to a recent inquiry by Senator Lautenberg and 
myself, other Senators, you indicated the Justice Department is 
convening a working group to study the GAO report and existing 
law and regulations. Should the FBI be in the business of 
authorizing the transfer of guns to people on terrorist watch 
    Director Mueller. Well, as we indicated in the response, 
the Attorney General has established a working group to look at 
that very issue. Persons may well be on a terrorist watch list 
without any disqualifying factor, and that is a factor that 
would disqualify them from getting a weapon, such as a 
conviction, such as an outstanding warrant, such as a stay away 
order. If that is the case, in these instances where GAO 
mentions that, and we become aware, as we would when we are 
alerted that somebody on the watch list wishes to purchase a 
gun, we then will pursue that. We will not let it go.
    But in terms of whether or not there should be some 
modification to the regulations or the statute, the Attorney 
General has established a work group to look into that.
    Senator Kennedy. My time is up, but either the watch list 
needs addressing to be altered or changed, I would think. That 
is what we have for those individuals. We would have to ask is 
there a role really for the FBI for approving these matters.
    I thank the Chair, and I thank the--
    Chairman Specter. Thank you, Senator Kennedy.
    In order of arrival, Senator Cornyn.
    Senator Cornyn. Thank you, Mr. Chairman. Thank you, General 
Gonzales and Director Mueller, for being here today.
    Let me pick up, Director Mueller, with some of the 
questions that Senator Kennedy was asking you to make sure I 
understand why it was the FBI did not believe it could use some 
of the DOD-approved interrogation techniques at Guantanamo.
    I have traveled, like many other members of the Committee 
have, to Guantanamo and had a chance to talk to General Miller 
and see some of the detainees there and understand a little bit 
better about what was going on. As I understand, we were trying 
to do two things perhaps at the same time. One is to get good, 
actionable intelligence in a legal and appropriate manner that 
could help save American lives, either in the field, 
battlefield in Iraq, Afghanistan or here in America. That was 
one of the goals, correct, sir?
    Director Mueller. Absolutely.
    Senator Cornyn. Also, there would be, under appropriate 
circumstances, an attempt to enforce our criminal laws, 
investigate violations of our criminal laws, past violations, 
and bring those to a court of law and seek to obtain a 
conviction of appropriate individuals; is that correct?
    Director Mueller. True.
    Senator Cornyn. Just so I understand, the reason why the 
FBI did not believe it could use all of the DOD-approved 
interrogation techniques is because different rules apply in a 
criminal prosecution with regard to information that an 
interrogator obtains from a suspect; is that right?
    Director Mueller. That is one of the reasons, yes.
    Senator Cornyn. You talked about rules of voluntariness.
    Director Mueller. Yes.
    Senator Cornyn. In other words, it has got to be a 
voluntary statement by the suspect; is that right?
    Director Mueller. Correct.
    Senator Cornyn. For example, General Miller demonstrated to 
me when I was at Guantanamo how they would literally take a 
detainee from one location, I think, as I recall, three 
different places where they could be housed, but they would, on 
the basis of their cooperation, provide them better or perhaps 
food that they liked better. They could live in a group 
setting, as opposed to an individual cell, and that would be 
based on promises of cooperation and the like, certainly, not 
torture. But as I understood your testimony, it may impede a 
criminal prosecution because it may not be construed by a court 
in a criminal case as being strictly voluntary; is that right?
    Director Mueller. Perhaps.
    Senator Cornyn. So the fact that the FBI did not 
participate in some of the interrogations conducted by 
Department of Defense or other officials, was that because you 
thought that they were engaging in a policy of torture or 
because you were concerned about your ability to obtain a 
criminal conviction based upon different standards in a court 
of law?
    Director Mueller. My understanding was that there were 
discussions elsewhere about the appropriateness of certain 
standards to be used by other agencies besides ourselves. I did 
not participate in those discussions. I understood that it was 
important to gain intelligence, but from the perspective of the 
role of our agents, it was to assist in interrogations, but to 
do so pursuant to the standards that we have employed in the 
past. There was some debate on the effectiveness of particular 
mechanisms. I think it is fair to say that our agents were far 
more familiar in this area than I am. I believe that using the 
carrot rather than the stick often was more effective, but that 
was a debate that was ongoing.
    Senator Cornyn. As I understood, you said it was against 
FBI policy to use promises as part of an inducement for people 
to give intelligence information or give information during an 
    Director Mueller. That is true.
    Senator Cornyn. Yet that was one of the techniques used 
with great success at Guantanamo Bay to get information--
    Director Mueller. Good point, yes.
    Senator Cornyn.--that has provided intelligence information 
and potentially saved American lives; is that right?
    Director Mueller. That is right.
    Senator Cornyn. There have been some questions, of course, 
about the PATRIOT Act since it was passed three-and-a-half 
years ago. Of course, as I think Senator Leahy pointed out, of 
course, there has always been a debate about appropriate 
freedom and liberty interests and what we need to do in order 
to protect our security.
    But let me ask you, General Gonzales, do you believe that 
the passage of the PATRIOT Act and its implementation by the 
Department of Justice, and by the FBI, and by other Government 
agencies is one of the reasons, one of the reasons, why al 
Qaeda and other terrorist organizations have been unsuccessful 
to date in attacking Americans on our own soil since September 
    Attorney General Gonzales. I do believe, Senator, it is one 
of the primary reasons because of the sharing of information, 
which both the WMD Commission and the 9/11 Commission have 
recognized is so very, very important. So I think it is one of 
the reasons.
    I, too, like Senator Leahy and others here on this 
Committee, was involved in the drafting of the PATRIOT Act. We 
acted with deliberate speed because, quite frankly, we were 
concerned about a second attack, but we acted with a great deal 
of care and deliberation because we all understood that, while 
we needed to protect this country, we needed to do so in a way 
that was consistent with our values and consistent with the 
Constitution, and I think the PATRIOT Act reflects that 
    Senator Cornyn. I agree with you that the PATRIOT Act is 
good work done under difficult circumstances, and I say that, 
in part, number one, it has been successful in at least 
contributing to the lack of a follow-up terrorist attack on our 
own soil as a result of some of its provisions.
    But, secondly, it is true, is it not, General Gonzales, 
that the PATRIOT Act has been challenged numerous times in 
courts of law, and with the exception of the material support 
provision, which actually predates that controversy, predates 
the PATRIOT Act, there has been no provision of the PATRIOT Act 
held unconstitutional in a court of law; am I correct?
    Attorney General Gonzales. There have been numerous 
challenges to various provisions of the PATRIOT Act, and I 
think, to date, that we have been successful in resisting those 
challenges. Some decisions have been made by courts and some 
people have--there is confusion as to whether or not was the 
provision challenged or struck down by the court really a 
provision of the PATRIOT Act. I think, if you study some of 
those decisions very carefully, you soon realize that they 
relate to provisions that were enacted by Congress years before 
the PATRIOT Act.
    Senator Cornyn. I see my time is up.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Senator Cornyn.
    Again, in order of arrival, Senator Feingold.
    Senator Feingold. Thank you, Mr. Chairman.
    First of all, with regard to the point Senator Cornyn was 
just making and the Attorney General was making, I want to 
clarify one thing about the recent decision striking down a 
national security letter authority that is expanded by the 
PATRIOT Act. The law that the court struck down was very 
different from the law passed in 1986. While the court focused 
on the lack of procedures, it was in the context of a law that 
allowed FBI agents to obtain records and even entire databases 
under a much different standard than was originally passed.
    Mr. Chairman, I would say the Senator from Texas is simply 
not correct to say that the court struck down only the 1986 
law. It struck down a law dramatically expanded by the PATRIOT 
Act. There is your example on the record of a provision of the 
USA PATRIOT Act that has been struck down.
    Mr. Chairman, thank you very much for holding this hearing. 
I am pleased that we are beginning our review of the PATRIOT 
Act early in the year, and I want to thank you very much for 
your commitment to taking the time necessary to review the 
executive branch's exercise of Government power since September 
11th. I am heartened that this year Congress will have the time 
and the perspective that we did not have in 2001 to carefully 
and calmly consider the many expanded Government powers in the 
    As we all know, the PATRIOT Act was proposed days after the 
horrific September 11th attacks, and the bill was passed and 
signed into law just a little more than a month later. I tried, 
in that emotionally charged time, to convince my colleagues 
that some provisions went too far and needed to be revised, but 
my amendments were rejected, although, Mr. Chairman, I want to 
note that you supported me in some of those efforts, and I will 
always appreciate that.
    Now, today, after three-and-a-half years of the Justice 
Department adamantly opposing any changes, and in some cases 
belittling critics, we have here today the Attorney General of 
the United States coming before us to this Committee to 
announce that he, too--he, too--recognizes the concerns about 
the PATRIOT Act are not so farfetched and that changes must be 
made. So we have come a long way.
    Attorney General Gonzales, I wish this day had come sooner, 
but I am delighted. I need to understand more about the changes 
to Section 215 that you are proposing, since they were not 
mentioned in your written testimony submitted yesterday, and it 
is possible that we will disagree about whether your changes 
are adequate to address the concerns of the American people, 
but this is a departure from what we have heard before. It is a 
good start. Having now taken this step, I hope we can have a 
productive dialogue that has been missing for so long.
    I look forward to working with you, Mr. Chairman, and with 
our witnesses and with other members of the Committee as we 
embark on the reauthorization process, and I would ask that my 
full statement be printed in the record so I can turn to some 
questions. Mr. Chairman, I would just ask that my statement be 
put in the record.
    Chairman Specter. Without objection.
    [The prepared statement of Senator Feingold appears as a 
submission for the record.]
    Senator Feingold. Mr. Attorney General, I would like to ask 
you a bit more about a provision that you mentioned, the 
delayed notification or sneak-and-peek search warrants which 
were authorized in Section 213 of the PATRIOT Act. That 
provision, as you know, does not sunset, but has sparked a lot 
of controversy.
    Before I start, I want to express a little frustration that 
the Committee received a lengthy letter just yesterday 
afternoon responding to some very longstanding requests for 
information about the use of the sneak-and-peek provisions. 
Given that we have only had a few hours to review that letter, 
I hope that you will agree to respond to any follow-up 
questions promptly.
    Attorney General Gonzales. Of course.
    Senator Feingold. I want to clarify a few things regarding 
sneak-and-peek warrants that I think have gotten a little 
confused in the debate.
    Mr. Attorney General, if the FBI were investigating an 
international terrorist or spy, it could obtain a secret FISA 
search warrant and never provide any notice to that person; 
that is correct, is it not?
    Attorney General Gonzales. Generally, yes, sir--no notice 
under FISA.
    Senator Feingold. Section 213 has nothing to do with that 
authority one way or the other; that is right, is it not?
    Attorney General Gonzales. That is correct.
    Senator Feingold. So, when we are discussing Section 213, 
Mr. Chairman, we are talking, for the most part, about searches 
done to investigate crimes that have nothing to do with 
terrorism or espionage, right?
    Attorney General Gonzales. It can, but it also includes 
other kinds of crimes. That is correct, 213.
    Senator Feingold. There is no inherent connection to 
    Attorney General Gonzales. That is correct.
    Senator Feingold. --vis-a-vis the power in Section 213 of 
    Attorney General Gonzales. That is what Congress intended, 
I believe, when they drafted 213.
    Senator Feingold. I am glad we clarified that because I 
think many people have a different calculation about what they 
think should be permissible if we are talking about terrorism 
investigations. People should be clear Section 213 sneak-and-
peek is, in no way, delimited to terrorist situations.
    In the letter we received yesterday, the Department said 
that sneak-and-peek warrants are constitutional, in general, 
because of a Supreme Court case Dalia v. United States. Let me 
remind you what that case says. It says that if the Government 
is planning to install a bug in someone's home, it can get a 
search warrant and delay notification because that is the 
``only means''--only means--``by which the warrant effectively 
may be executed.''
    Now, that is a pretty strict standard, is it not? Much 
stricter than the standard in the PATRIOT Act, right?
    Attorney General Gonzales. I would like to go back and look 
at that decision carefully before I give you that answer, 
Senator, but I would be happy to do that.
    Senator Feingold. General, I can assure you there are 
various items listed as justifications under 213, and they are 
certainly broader than the language ``the only means by which 
the warrant effectively may be executed.''
    I would argue that this is a much stricter standard than in 
the SAFE Act. Is that the standard that you think should apply 
to sneak-and-peek searches? And, if not, would you agree that 
the reliance on the Dalia decision is misplaced?
    Attorney General Gonzales. Well, the standard that applies 
with respect to all of these kinds of warrants would be 
probable cause. That is the standard that applies here.
    Senator Feingold. As I understand it, this is a question of 
what circumstances allow an exception to the normal notice, and 
certain items are listed as exceptions. We may have a 
disagreement about what those exceptions should be, but all of 
this is certainly broader than the language of the Dalia 
decision, which speaks only in terms of only means by which the 
warrant effectively may be executed.
    Attorney General Gonzales. Again, Senator, I have not read 
that case in some time, so I would like to opportunity to 
review it.
    What people need to understand, though, with respect to 
213, it requires a determination by a judge, first, that there 
is probable cause; secondly, that there is a reasonable cause 
to believe that providing immediate notice would result in some 
kind of adverse result. So this is not a decision made solely 
by the Government. This is a decision made by a Federal judge, 
finding a reasonable cause and an adverse result is going to 
    Senator Feingold. What we are talking about here, of 
course, are various provisions that are exceptions to what many 
of us regard as a constitutional protection. So the law in its 
current form and the proposals that we are making to change it 
all identify only certain circumstances where this exception 
can be made.
    My suggestion to you, and I am happy to move on to the next 
subject so that you can review it, is that the Dalia decision 
does not even support that standard, let alone the type of 
standard that we are proposing under the SAFE Act.
    Attorney General Gonzales. I would be happy to look at 
that, Senator.
    Senator Feingold. Mr. Chairman, my time has expired.
    Chairman Specter. Thank you, Senator Feingold.
    Senator Sessions?
    Senator Sessions. Thank you, Mr. Chairman.
    With regard to the 1986 Act and the debate about whether 
the PATRIOT Act was struck down, and I believe it has been 
discussed here, Senator Cornyn, former Justice Cornyn, has 
written an op-ed that was published in the Washington Times and 
notes this, that what was struck down indeed was the 1986 Act, 
and in fact the ACLU, after contending otherwise, backed down 
and admitted that it attacked the wrong law. As ACLU attorney 
Jameel Jaffer eventually conceded, ``The provisions we 
challenged and that the Court objected to were in the statute 
before the PATRIOT Act was passed. We should have raised the 
same objections before the power was expanded.''
    And in fact, Attorney General Gonzales, you never objected 
to the review and in fact thought it was implicit in the 
statute anyway, did you not?
    Attorney General Gonzales. That is correct.
    Senator Sessions. Let me just say this. I still contend 
that a myth has been created in large degree as a result of the 
talking heads on television that said we were going to have to 
erode our constitutional liberties to protect ourselves from 
terrorism. The Department of Justice, working with this 
Committee, crafted the PATRIOT Act and it was interpreted 
somehow as an erosion of our constitutional liberties when in 
fact it was never such, in my view. I predicted then that there 
was no provision of it that I believed would be struck down, 
and to date I do not believe any has.
    The PATRIOT Act basically is a restrained piece of 
legislation that focuses on a number of loopholes and gaps in 
our law. Many times situations arise, as Mr. Mueller has noted, 
where the DEA can go out and issue administrative subpoenas in 
a drug case, the Food and Drug Administration can go into 
businesses and search everything in the business and get all 
kinds of documents, but an investigator investigating somebody 
trying to kill millions of Americans cannot do it. So what we 
did was try to give the same proven constitutional powers that 
existed in other investigations to people investigating 
terrorism and to break down the walls that had been created 
between intelligence agencies that made it far more difficult 
to share that information.
    Am I wrong, Mr. Mueller, fundamentally in that--
    Director Mueller. No, I think you are accurate, sir.
    Senator Sessions. And with regard to the delayed 
notification of a search warrant. Before you can get a search 
warrant, you have to get approval of a court and have probable 
cause that would justify you conducting that search. Is that 
not correct?
    Director Mueller. Yes, sir. In every case. Pursuant to the 
    Senator Sessions. And if an FBI agent or a State police 
officer, if it is brought to your attention that they have 
conducted a search without a warrant, would you take immediate 
action against them?
    Director Mueller. The statutes require it.
    Senator Sessions. And there is no doubt in the culture of 
law enforcement in America today--I say this as a prosecutor 
for 15 years--that you do not conduct searches without a court-
approved warrant. Is that not correct?
    Director Mueller. That is correct except in a very limited 
area where there may be an emergency. But in every case that I 
am aware of, you have to go before a judge within a certain 
period of time to get approval of that action. It can only be 
an emergency.
    Senator Sessions. And the FBI knows that and they do not do 
it. That is the point I am simply making.
    Director Mueller. Correct.
    Senator Sessions. In 12 years as United States attorney, 
there was one wiretap that we were involved in. It is not a 
common thing to do a wiretap. You have to have a tremendous 
amount of proof and court approval and supervision.
    But on this delayed notification, the so-called sneak-and-
peek, basically all it says is that historically you issue a 
report or an inventory of the search and you give that to the 
person once you conduct a search warrant contemporaneously with 
the completion of the search. Is that not the traditional rule?
    Director Mueller. Correct.
    Senator Sessions. But the courts have upheld in the past 
and it is an established principle of law enforcement since I 
was connected with the Department of Justice that you could 
conduct a search under certain circumstances with court 
approval and delay notification to the person who is being 
searched. Has that not been true?
    Director Mueller. Yes.
    Senator Sessions. Before the PATRIOT Act.
    Director Mueller. Around the country, various courts have 
upheld that process over the years.
    Senator Sessions. So this Act simply said we can do it when 
we are investigating people that are trying to kill us, not 
just sell drugs on the streets.
    Director Mueller. That, and it also regularizes the 
practice throughout the United States.
    Senator Sessions. I think that is important for us to know 
    Now, they complain, and General Gonzales notes that perhaps 
the most controversial part is the part about the libraries. 
That is almost amusing. I mean, some of the things that have 
come out of the national Library Association, in my view, have 
been utterly extreme. It sounds like Woodstock myths, out of 
Woodstock or something. Library records, like medical records, 
like business records, have always been subject to subpoena. Is 
that not right, Mr. Mueller? You have been a Federal prosecutor 
for how many years before you became FBI?
    Director Mueller. Off and on for maybe 25 years.
    Senator Sessions. And I would just say you are recognized 
as one of the most professional and able prosecutors in the 
Department of Justice, maybe in the history of the Department 
of Justice.
    Director Mueller. I would not go that far.
    Senator Sessions. Well, I might. I might. Because I served 
with you and I know the reputation you had throughout the 
Department. So this is always--you can subpoena these records.
    Director Mueller. Yes, you can.
    Senator Sessions. You tell me a principled reason why you 
could subpoena someone's medical records, their bank records, 
their telephone records, but not subpoena their library 
records. Is there one?
    Director Mueller. I do not believe so, and I do not believe 
there should be a safe harbor for libraries. We have had 
occasions where we have had terrorists who are operating, 
generally, computers. Many libraries now, public libraries, 
have computers that you can have access to. And this has not 
been lost upon those who are affiliated with terrorist groups. 
We have had investigations in which we have seen persons 
associated with terrorist groups go into a library, use the 
library to communicate, or the computers in the library to 
communicate, draw up jihadist literature, and the like. We have 
been fortunate not to have used 215 because we have had the 
cooperation of the libraries to date. But the libraries can 
upon occasion be used for persons to communicate.
    As I indicated, terrorists, we have had more than one--
several examples where terrorists have used libraries as you 
would use a Kinko's or some other place to have access into a 
computer. We have also had occasions where, for instance, in 
the Kaczynski case, where the Unabomber, who was living in a 
remote area of the country but writing these tomes that would 
justify his actions in sending letter bombs, he utilized 
excerpts or quotes from various books. We came to find out that 
there was a library he was using, and we subpoenaed those 
records. It is in cases like that, cases where we have a 
belief, a predication that persons are using libraries in ways 
that will assist them in their illegal activities, where we 
believe that we should have the opportunity to address a 
subpoena of some sort to the library and have them produce 
    Senator Sessions. Thank you. And I know that they are 
entitled to every kind of constitutional protection, a library 
is, that anyone else is. But I do not think a library deserves 
a special protection over any other business.
    Thank you, Mr. Chairman.
    Director Mueller. Could I add one other thing, if I might, 
Senator? We are sensitive to the concerns of the Library 
Association. But all that being said, we think that the balance 
is well struck in terms of our need to obtain records from a 
library. If it is 215, a judge is reviewing that request. And 
so the balance is fairly struck, I believe, in terms of the 
desire of librarians and others to protect the sanctity of the 
    Senator Sessions. A library does not have any sanctity. Why 
does a library have sanctity that your medical records do not 
    Director Mueller. Well, a number of areas have been looked 
upon as being special.
    Senator Sessions. They think it is sanctified, I will 
admit. I just disagree that it deserves special protection.
    Chairman Specter. May we move on, gentlemen?
    Senator Schumer?
    Senator Schumer. Thank you, Mr. Chairman. And I want to 
thank both the Attorney General and the Director for being here 
    I am going to start of with--Senator Kennedy mentioned it 
briefly--the issue of terrorists and guns. I think both of you 
would agree with me that in order to fight an effective war 
against terror, common sense dictates we must not only take 
care to arm ourselves with the proper legal tools, but we ought 
to disarm terrorists as well. And you are familiar that all of 
us learned, unfortunately, last month from the GAO report that 
we are not doing everything we can to disarm terrorists. Forty-
seven times, it was reported, people on terrorist watch lists 
legally purchased guns in the U.S.
    Even worse, it would be bad enough if this were accidental, 
but it is not. Even if the FBI wanted to prevent a suspect 
terrorist from buying a gun, even if the watch lists were 
perfect--because I know you alluded to the fact that maybe the 
watch lists are not perfect--the FBI could not, could not 
prevent a terrorist from buying a gun. If you are on a 
terrorist watch list today, that fact is not enough under 
current law to be denied a deadly firearm. So what that means, 
it leads to an absurd conclusion. If somebody is convicted for 
some nonviolent crime, like illegally selling lottery tickets, 
he cannot even buy a revolver. But if he has sworn allegiance 
to al Qaeda, he can stock up on AK-47s and Uzis to his heart's 
    What troubles many of us, of course, is the substance, but 
is also--it is completely out of touch and out of tune and out 
of consistency with what this administration does on every 
other issue. So when it comes to the age-old clash between 
security and liberty, the administration instinctively sides 
with security, except in one area--guns. Guns are inexplicably 
a sacred cow. And you have to wonder why this is. Is it 
politics? Is it the power of the NRA? As you know, I agree with 
the President that we should have a strong offense on the war 
on terror. But we should be going after the terrorists in every 
way when they prepare to strike us and not make a huge 
exception for guns. By the same logic that the administration 
has pressed over and over again, if we prevent garden variety 
criminals from possessing firearms, why do we not prevent 
suspected terrorists from possessing them? I do not understand 
    So that is why Senator Lautenberg and I wrote a letter to 
the Department demanding action, asking that gun-purchase 
records, rather than being destroyed within 24 hours, are kept 
for a longer period. I also have to tell you, I am going to 
plan to introduce an amendment to this bill that would, once 
and for all, make it illegal for people on terrorist watch 
lists from getting guns. In addition, because I support Senator 
Lautenberg's efforts to keep gun records, I plan to offer in 
Committee an amendment to prevent the destruction of gun sales 
so that we do not hamper our ability to trace terrorists.
    First, to Secretary Gonzales, would you consider, would the 
administration consider supporting legislation to prevent those 
on watch lists from buying guns?
    Attorney General Gonzales. Well, let me be very clear about 
this, Senator. The administration does not believe and would 
prefer not to have, desperately prefer not to have terrorists 
possessing guns. And we do what we can to make sure that that 
does not happen. But at the end of the day, we have to enforce 
the law. And unless someone has a disability under the law from 
possessing a firearm, then they are entitled under the law to 
possess a firearm. And so we have taken steps, also reflected 
in the GAO report, to try to buy some additional time--
    Senator Schumer. Mr. Attorney General, I am asking you, 
would you support, would the administration just consider 
supporting changing the law?
    Attorney General Gonzales. We would certainly consider 
looking at your legislation, of course.
    Senator Schumer. You would not rule it out?
    Attorney General Gonzales. That is correct.
    Senator Schumer. Good. Thank you.
    Second, that would relate to terrorists not getting guns 
when they go into the gun shop. But sometimes you find out that 
someone is a terrorist after they have purchased the gun. I 
think we have had that in a few instances as well. That would 
mean that we would have to keep the records for at least a 
longer period of time. Your predecessor instituted a policy 
where the records were destroyed in 24 hours. Would you 
consider supporting legislation that would require the records 
be kept for a period longer than 24 hours, particularly--Well, 
let me ask you that.
    Attorney General Gonzales. We would be happy to look at 
your legislation. My own sense, it is not the fact that the 
records are being destroyed in 24 hours that is sort of the 
main problem, it is the fact that it is currently not a 
disability from owning a firearm. But we would be happy to 
consider your legislation.
    Senator Schumer. Well, but this is an example. I mean, Joe 
Smith goes into a gun shop, buys a whole bunch of guns legally, 
and then it is found out later that he was on a terrorist watch 
list. If you destroy the records--well, you will not be able to 
find out later, if you destroy the records. That is why we want 
to keep the records. No one wants to use them for any other 
purposes. So I would urge you to consider that as well. That is 
a possibility?
    Attorney General Gonzales. We would consider that.
    Senator Schumer. Good. Because your predecessor had 
instituted the previous policy.
    And just in reference to what Mr. Mueller said--and I share 
the respect for the FBI Director that my colleague from Alabama 
does--you were alluding, when Senator Kennedy asked you 
questions, well, we are not sure the watch list is perfect. I 
thought that is what you were saying, the watch lists have some 
problems. Well, we use them for lots of other things--not 
getting on an airplane, things like that. You are not saying we 
need a standard of perfection in the watch lists before we use 
them to prevent people who are on them from buying guns, are 
    Director Mueller. No. What I meant to say is there are 
people on the watch list who do not suffer from any of the 
disabilities that would preclude them from having a weapon. In 
other words, there would be information that leads us to 
believe that a person is affiliated or associated with 
terrorism. We put him on the watch list, but that person will 
not necessarily have that--
    Senator Schumer. You mean will not have a criminal record.
    Director Mueller. Will not have a criminal record, will not 
    Senator Schumer. Right. But we do not require a criminal 
record for airplane boarding or anything else. Why should we 
allow people like that to buy a gun? Any good reason?
    Director Mueller. No, all I was saying, that the watch list 
should not be the--Well, the watch list serves certain 
functions. It does not serve the function of assuring that 
everybody on there has the debilitating factor--
    Senator Schumer. Well, that is not what it is supposed to 
be, as you know. It is a totally different list.
    Director Mueller. That is true.
    Senator Schumer. There are people who are not American 
citizens on that list.
    Director Mueller. That's the only point I was trying to 
    Chairman Specter. Senator Schumer, your time is up.
    Senator Schumer. Thank you, Mr. Chairman.
    Chairman Specter. Director Mueller, I want to return to a 
subject I raised in my opening statement, and that is the 
report of the Commission on Intelligence Capabilities of the 
United States Regarding Weapons of Mass Destruction. No matter 
how effective the PATRIOT Act will be, we know that, unless 
there is information sharing among the intelligence agencies, 
we have a gigantic gap in our security system. And we do know, 
and have talked about this extensively, about the tremendous 
amount of information which was available before September 
11th, about that Phoenix FBI report which never got to 
headquarters, with the fellow who wanted to learn how to fly a 
plane but was not interested in take-offs or landings. And we 
had Agent Coleen Rowley's report about the wrong standard being 
used on Foreign Intelligence Surveillance Act that never got to 
the headquarters of the FBI, and she was in this room back in 
June of 2002 and we had extensive discussions about that. And 
we know the CIA had information about al Qaeda agents in Kuala 
Lumpur, never given to Immigration and Naturalization Service. 
And we know about Zacarias Moussaoui, part of the Agent Rowley 
issue as to the information which might have led to total 
disclosure of the al Qaeda plans.
    And then we had the legislation to create the secretary of 
homeland security, and Senator Lieberman and I, co-authors, 
fought hard to get a provision that would give direction to the 
secretary and we could not get it done. The House passed the 
bill in October of 2002 and, as they do from time to time, left 
town, so that we were faced either with taking their bill or 
deferring the matter until the spring. Now we have the creation 
of the national Counterintelligence Center, and of all the 
specifics on the war against terrorism, it is my view, having 
chaired the Intelligence Committee and done a lot of oversight 
on this Committee, that that coordination is the most important 
and without it, we are desperately vulnerable. One of the first 
things I did after taking over the chairmanship was to come to 
see you to clearly get into that subject. Because I think we 
can be helpful on oversight.
    Let me say this to you, Attorney General Gonzales, there is 
a lot of experience on this panel. There are prosecuting 
attorneys, there are lawyers with a lot of experience, or 
jurists, who have been in the field a long time. So that it was 
with really some dismay that I saw the report of the Commission 
on Intelligence Capabilities Regarding Weapons of Mass 
Destruction again referring to clashes between the CIA and FBI 
not only in regard to what agency gets credit for an 
intelligence report, but also in the field, where lives are at 
stake. And then the failure of the CIA and FBI to cooperate and 
share information adequately on cases could potentially create 
a gap in the coverage of these threats like 9/11. And there are 
a lot of references. And, only to cite one more, in-fighting 
between the FBI and the CIA had ``become too common'' and that 
``potential information on terrorism sometimes was not shared 
among the FBI, CIA, and Department of Homeland Security.''
    Director Mueller, are those criticisms outdated?
    Director Mueller. I think, if you focus on what the WMD 
Commission was looking at, some of it was accurate, 
particularly when it comes to the sharing of information 
between our Legats overseas and the CIA station and the sharing 
of information and the working cooperatively between the NR 
stations and the FBI here. We are well on our way to resolving 
those coordination issues.
    On the other issue of sharing information with regard to--
    Chairman Specter. Director Mueller, when you say ``well on 
your way,'' it has been a long time since 9/11 and it has been 
a long time since June 6th, when you and I were here together, 
and a long time since October, when Senator Lieberman and I 
tried to get it under one command. Now, we do have a new 
national Director of Intelligence, but he has not been 
confirmed and it will take him awhile to get operational. And 
who can say that, assuming confirmation of Director Negroponte, 
that he is going to be able to solve the problems?
    Director Mueller. If I might, Mr. Chairman, in the sharing 
of information between the CIA and the FBI when it comes to 
terrorism, we have made huge, huge strides. I am not certain 
that the quotes that you are stating would accurately reflect 
our exchange of information on terrorism. We have established a 
national Counterterrorism Center--
    Chairman Specter. So the quotes are wrong?
    Director Mueller. I would say they do not accurately 
describe the full picture of what we have done since September 
11th to assure cooperation between the FBI and the CIA. And I 
mentioned the national Counterterrorism Center, where we gather 
information in the United States pursuant to our procedures--
the CIA gathers it overseas--and we have used it in the 
national Counterterrorism Center. We have colocated certain of 
our international terrorism units with similar units with the 
CIA, and the exchange of information there is as good as it 
possibly could be.
    Chairman Specter. Director Mueller, let me ask you one 
final question before my 36 seconds expire in this round. There 
are reports about critical information which led the 
administration to conclude that Saddam Hussein had weapons of 
mass destruction and it came from somebody named Curveball, or 
nick-named Curveball. And then the reports are that the 
information from Curveball never got to CIA Director Tenet. And 
then there are reports that the information from Curveball 
never got to Deputy Director McLaughlin.
    Now, during my stewardship here, I am going to put 
everybody under oath when we have testimony, as we do on 
confirmation hearings. But I am just aghast at the necessity 
for Congress to pursue these issues as if we are after John 
Dillinger, as to who knew what and when.
    Director Mueller. Well, I am disappointed as well, Mr. 
    Chairman Specter. That is not your watch.
    Director Mueller. I am disappointed as well, Mr. Chairman, 
that you feel you have to do that.
    Chairman Specter. Senator Leahy?
    Senator Feinstein. Mr. Chairman, I think you--
    Chairman Specter. Pardon me, Senator Feinstein. Senator 
    Senator Feinstein. Thank you very much, Mr. Chairman.
    General, I want to thank you for the report that you sent, 
which I have received and have been poring through. I think it 
is very helpful, and we have given a copy of it to each member 
of the Committee. As I understand it, you go through each 
section--I am talking mainly now about the 16 sections subject 
to sunset--with respect to the use, and it varies rather 
dramatically. Sections 201 and 202, you say, have been used 
maybe once, maybe twice. And you get to 203(b) and 203(d), 
which involves the wall, and they are quite frequently used. 
And I wanted to ask you about it.
    As you mentioned in your comment a little earlier, the ACLU 
has written a 10-page letter, which is rather specific, 
particularly on page 8 and 9, on some specific what they 
contend are abuses of the PATRIOT Act. Now, we have scrubbed 
the area once again and we find--I have no reported abuses. I 
had 21,000 reported abuses when we started this. We have asked 
the Inspector General for abuses, and he has not come up with 
    So I think the situation is very different today as opposed 
to what it was when we passed the act. I think, for one thing, 
PATRIOT II, which was reportedly going to come to the Hill 
following PATRIOT I, did not. And I think that has become 
clear. I think people's understanding of the Act is much 
clearer today. I think there are still misimpressions around 
203(b) and (d). And the ACLU letter, because I authored in this 
Committee the significant purpose test, I want to ask you a 
question specifically about that test and the Brandon Mayfield 
case, using it as an example.
    Can you describe how the significant purpose test was used 
in this case? I think it is a good example because it is both a 
criminal and an intelligence matter.
    Attorney General Gonzales. Senator, I think we have said 
publicly--if not, I guess I am saying it publicly--that the 
PATRIOT Act was not used in connection with the Brandon 
Mayfield case. The search was not conducted pursuant to Section 
213. The question that you are raising is whether or not 218 is 
implicated in terms of, quite frankly, which change the purpose 
test from ``the'' purpose to ``a significant'' purpose. The 
truth of the matter is, the facts as I understand the Madrid 
bombing and the investigation with respect to Mr. Mayfield 
would have been an investigation that we could have pursued, 
quite frankly, irrespective of the change to the PATRIOT Act. 
It would have been--we think that it was a--you could make the 
argument that the purpose of that investigation was for 
purposes of foreign intelligence. And so for those reasons, we 
disagree with the conclusion by the ACLU that the provisions of 
the PATRIOT Act were implicated in connection with that 
    But again, I have only had a short period of time to review 
the letter. I do not have the letter with me. My staff is 
looking at it carefully. Obviously, when anyone alleges any 
kind of abuse, we consider it very, very seriously. We know you 
consider it equally as serious, and we want to be as responsive 
as quickly as possible to reassure you that in fact the 
Department's actions have been consistent with the law.
    Senator Feinstein. I guess what I would like to know, since 
this is an oversight hearing on that, whether the significant 
purpose test, you believe, at this stage is adequate--is it an 
adequate protection; if we should change it in any way
    Attorney General Gonzales. I truly believe it is important. 
I think it is adequate in that I think it has been successful 
in aiding the Department in its investigations, and so I do 
believe it is adequate. I do believe it is important, and I do 
believe that, again, as I said earlier in response to a 
question, in my judgment, the PATRIOT Act includes a lot of 
safeguards that critics of the Act choose to ignore. They don't 
talk about the safeguards that do exist in the Act.
    I think they, as I said before, reflect a very careful 
balance between the security of this country and the protection 
of our civil liberties, and for that reason we wholeheartedly 
support the renewal of the PATRIOT Act.
    Senator Feinstein. If I might ask you if you would take a 
look on pages 8 and 9 of the ACLU letter, they raise some 
specific cases--Michael Galardi, the case of a lovesick girl 
who planted threatening notes aboard a Hawaii-bound cruise 
ship, the case of Czech-born University of Connecticut grad 
student Thomas Faral, David Banash--and make the general 
allegation that sneak and peek, 213, was used almost 
exclusively outside of terrorism investigations.
    You might not be able to address those with specificity 
    Attorney General Gonzales. I can say, Senator--
    Senator Feinstein. If you can, that would be great.
    Attorney General Gonzales. Well, as to the specific cases 
you referred to, I would like the opportunity to go back and 
look at these carefully, but Section 213, the delayed notice 
warrant provision, was not limited only to terrorism cases. So 
the fact that that authority was used in connection with other 
kinds of cases doesn't mean that we violated the law.
    Quite to the contrary, the Department acted pursuant to the 
law. We exercised authority that was granted by this Congress, 
but I welcome the opportunity to study these allegations 
further and we will report to you as quickly as we can.
    Senator Feinstein. I appreciate that. Thank you.
    Mr. Mueller, let me ask you this question. I am concerned--
and I have asked this question of you before--that there is 
insufficient understanding of the difference between 
intelligence and law enforcement.
    How many senior DOJ officials who are running national 
security today are professional intelligence officers?
    Director Mueller. We have not had a certification program 
in the past. So in terms of a certified intelligence officer, 
we do not have anybody. We are in the process of establishing a 
certification program.
    I would have to get back to you in terms of numbers of 
persons at the top levels who have spent a substantial amount 
of time in either counterintelligence or throughout their 
careers have spent time in the intelligence community, whether 
it be a year or two at the CIA or had some form of training 
that would qualify them to be a certified intelligence officer.
    Senator Feinstein. Just quickly because my time is up, 
could I ask the same question of you, General, please?
    Attorney General Gonzales. I don't know the answer to that, 
Senator, but I would be happy to get that information for you.
    Senator Feinstein. Mr. Chairman, I think this is a real 
problem. I suspect the answer is zero. Going back to the Rob 
Silberman report and putting on my Intelligence Committee hat, 
I think there is a growing view that there needs to be a 
specific national security division under an assistant attorney 
general for national security which is really intelligence-
    The question comes really whether you can change the 
culture sufficiently, and I asked this question at a prior 
hearing and the answer has always been zero. And the question 
comes whether we can really get in this country that corollary 
to MI-5 with the structure that is set up today. I thought 
originally that we can. I must say I am beginning to doubt it 
now. The fact that this new commission once again came up with 
that same recommendation is something we need to look at.
    Thanks very much.
    Chairman Specter. Senator Feinstein, I think you have put 
your finger on a very critical issue. The commission 
recommended a national security division for both the FBI and 
the Department of Justice, and that is a subject which I plan 
to take up in the next round and I think it is a very important 
subject to be discussed.
    Senator Feinstein. Thank you.
    Chairman Specter. Senator Coburn was just here, but we will 
go to Senator Cornyn.
    Senator Cornyn. Thank you, Mr. Chairman.
    Gentlemen, we are talking, of course, about the PATRIOT 
Act, but I want to pull back a little bit more and look 
generally at our efforts to protect America from terrorist 
attacks and specifically talk about the border. This causes me 
a great deal of concern, and let me explain.
    While I think we have done a great job since 9/11 upgrading 
our means of determining who can come into the country and why 
they are here through the implementation of the US VISIT 
program, upgrading the quality of documents, identifying people 
who are presenting fraudulent documentation and the like, I 
fear that we are not doing what we need to be doing between the 
bridges and outside of the airports. Let me just explain.
    A few weeks ago, I flew with a Border Patrol agent in 
Laredo, Texas, down the Rio Grande River and landed on the 
World Trade Center Bridge, and asked about whether he was 
receiving the kind of support they needed in order to do their 
job. He said no, that because of demands along the Arizona 
border, the Texas border was seeing a move of equipment and 
personnel to Arizona.
    He said, what I fear is that the human smugglers are smart 
enough--and it is not just human smugglers, it is human 
traffickers, it is drug dealers, money launderers, arms dealers 
and the like--to move to a different part of the border and our 
borders are way too porous.
    So I would just like to get your opinion, General Gonzales, 
on whether this is a concern of yours from a terrorism point of 
view, from a national security point of view, the porous nature 
of our borders.
    Let me just mention one little footnote. On my most recent 
trip to Laredo, I was also provided with some documentation in 
the way of pictures of juice boxes with Arabic writing on the 
juice boxes that did not come from that area where the person 
was detained and where the juice boxes were obtained, and also 
a jacket with Arabic writing on it, some of a jihadist nature, 
including a patch showing a plane flying into a large building. 
These were just a couple of the sorts of things that are being 
obtained in the course of detaining people coming across our 
border from Mexico.
    So I would just appreciate your general observations, 
Attorney General Gonzales, about whether you are concerned 
about that from the standpoint of protecting America from 
terrorist attacks.
    Attorney General Gonzales. Well, of course, I am concerned 
about opportunities that terrorists have to come into this 
country. There is a tension between the principles that we hold 
dear about being an open society, encouraging immigrants into 
this country, and also the principle of defending this country 
against terrorists that come to this country simply to do evil.
    Like our President, I come from your State, Senator, that 
borders Mexico. We understand the realities of life along the 
border communities where people come back and forth everyday 
not to do harm, but simply to provide for their families. So an 
immigration policy, in my judgment, has to be reflective of 
that reality as well.
    So you have got these competing tensions of the reality of 
life along the border, the need to protect this country, and 
also I think the principle which many of us believe in and that 
is that if we have immigration laws, they should be enforced. 
That should be, of course, a principle that we all support.
    So to answer your question, am I concerned about it, of 
course I am concerned about it, even though the responsibility 
regarding immigration enforcement now lies within the 
Department of Homeland Security. I know that Secretary Chertoff 
shares the same concern and he is working as hard as he can, 
along with the rest of us, to try and address this problem.
    Senator Cornyn. Let me ask you, would it make your job and 
Director Mueller's job easier if, in passing comprehensive 
immigration reform, we were able to distinguish between people 
who wanted to come to the United States and work on a temporary 
basis and then return to their home country--distinguish 
between those people and those who want to come here to kill 
    It just strikes me as a logical matter that, given the 
limited resources of law enforcement, no matter how vast people 
may think the Department of Justice is and how vast the Federal 
Government's resources are, would it help if you were able to 
concentrate on people who were likely threats to American 
security, as opposed to people who wanted to come here to work 
under some legal framework?
    Attorney General Gonzales. Of course, it would help that we 
know who is coming across our borders and the reason that they 
are coming into this country. The President has proposed a 
worker program that contemplates providing some kind of legal 
status to certain people who meet certain qualifications, and I 
think that is consistent with the approach that you are 
thinking about.
    Senator Cornyn. Director Mueller, let me just ask--
consistent with, I think, the questions that Senator Leahy was 
asking, I am very interested in the Freedom of Information Act. 
He and I have cosponsored a couple of bills that we are hopeful 
of getting action on in the Committee and then on the floor.
    Specifically, I am concerned about why would you see three 
different versions of the same e-mail with different decisions 
made about redaction. It concerns me that it may be just 
happenstance who requests what at what time, and we lack any 
coordinated effort to determine exactly what statutory 
exemptions do apply and to make sure that those are uniformly 
applied to each and every request for the same information.
    Director Mueller. I would have to go back and look at how 
the various iterations were developed. I do know there are 
different standards for FOIA. There may be different standards 
for classification. I don't know to what extent in this 
sequencing either one or the other kicked in to address one or 
more of the provisions. I would have to get back to you on 
    Senator Cornyn. Well, I would appreciate when you are 
responding to Senator Leahy's questions about that if you would 
also include a response to that. I would like that both from 
General Gonzales and Director Mueller because I think getting 
some systematic, uniform response in a predictable way that 
provides people the information they are entitled to, while 
protecting information that is entitled to a legal exemption, 
is important.
    Thank you.
    Chairman Specter. Thank you, Senator Cornyn.
    Senator Leahy commented that someone had two rounds before 
one. We have had a practice of alternating between the parties. 
I know we go to Senator Durbin next, but maybe we ought to 
rethink the issue as to whether we avoid the alternation in the 
interest of giving people a first round. I will give due 
consideration to that.
    Had we done it earlier, you would have been up sooner, but 
it is your turn now, Senator Durbin.

                       STATE OF ILLINOIS

    Senator Durbin. Thank you, Mr. Chairman.
    Thank you, Attorney General Gonzales and Director Mueller, 
for being with us today. I think we should start this 
conversation about the PATRIOT Act, this dialogue, by 
acknowledging the obvious. Let's be honest. We passed the 
PATRIOT Act at a moment when our Nation was gripped with high 
emotion and fear.
    History tells us that we don't do our best work under those 
circumstances. I think we know that we don't enact laws with 
adequate and careful consideration under those circumstances. 
Sadly, history tells us we often err on the side of expanding 
the power of government at the expense of individual rights and 
    That is why if there was any wisdom in this PATRIOT Act, 
which I voted for, it was the sunset provision which said we 
will revisit these things; we will determine whether or not we 
are caught up in the emotion of the moment and have gone too 
    I think it was in that spirit that Senator Craig and I took 
a look at the PATRIOT Act and suggested the SAFE Act, which 
does not repeal or abolish the PATRIOT Act, but adds what we 
consider to be thoughtful provisions which are going to make it 
more specific in what it sets out to do, and more protective of 
the rights of individuals.
    Now, if you search the political spectrum in the Senate, 
you will probably find no two Senators farther apart than 
Senator Craig and myself, and you will find the groups 
supporting our SAFE Act as diverse as well, from the American 
Conservative Union to the American Civil Liberties Union.
    So I am heartened by your opening statement, Attorney 
General, about being open to suggestions and ideas. It is a 
grand departure from your predecessor and I think it is the 
right spirit for us to address the PATRIOT Act. And I would 
commend to you, as I am sure Senator Craig would, the 
provisions which we are offering.
    There are two things which I would like to speak to 
specifically about the PATRIOT Act and what has been said this 
morning. The very first reason, Attorney General, that you gave 
for the PATRIOT Act was to enhance the Federal Government's 
ability to share intelligence. That is an absolute necessity 
for our defense of America in the war on terror.
    But most honest observers will tell you that to suggest 
that the only way we can expand the sharing of information and 
intelligence is to expand the power of government, or to at 
least move perhaps too far when it comes to individual rights 
and liberties, overstates the obvious.
    We now know, well documented by investigation after 
investigation, that there was a bureaucratic turf war in many 
agencies which stopped them from sharing information. Director 
Mueller has devoted more hours than he can count to improve the 
outmoded technology he inherited after 9/11 so that information 
systems could communicate.
    The point I would like to make is this: If the goal here 
was, as you say, to enhance the Federal Government sharing 
intelligence, we could have stayed away from the PATRIOT Act 
altogether and really focused on the agencies working with one 
another and sharing information so that the Phoenix memo 
wouldn't be buried in the depths of the FBI and so that the CIA 
and all the other agencies would communicate.
    So before we go to challenge in any respect the Bill of 
Rights, I think we had a lot of homework to do when it came to 
the management of information in the Federal Government. Maybe 
this new intelligence reform will move us in a more positive 
    The second thing I would like you to address is Section 
215, which has caused great pain for people in many 
communities. The American Library Association, not historically 
a politically active group, has become very active because they 
believe the PATRIOT Act went too far.
    They believe, for example, if an FBI field office believed 
that an unidentified terrorist had checked out a book entitled 
How To Build a Dirty Bomb from the Chicago public library, 
Section 215 gives the Government the authority to search the 
library records of hundreds of ordinary citizens in an attempt 
to identify the terrorist, catching in this net innocent people 
who have checked out books in a library, never knowing that 
they would be swept in the potential of finding a terrorist.
    Similarly, if an FBI field office came up with information 
that the wife of a suspected terrorist had an abortion, 
therefore they would set out through Section 215 to search the 
records of a hospital or clinic for all the women who had 
received an abortion, whether or not they might have been 
associated with any terrorist activities. Section 215 allows 
all of that information to be gathered in secret through the 
FISA court and many innocent people to have their privacy 
compromised in the process.
    Now, often, it is said that we should stop and consider 
that it is just like a grand jury subpoena, but it is not. 
There are significant differences. The recipient of a grand 
jury subpoena can challenge the subpoena. That is not the case 
here. The Government must make a showing with a grand jury 
subpoena of the need before a gag order is imposed. That is not 
the case here.
    The Section 215 provision of the PATRIOT Act is in secret, 
and the recipient of the subpoena can challenge the gag order, 
which can't be done under Section 215. So the analogy breaks 
down completely when you try to argue that this is just a 
routine process like a grand jury subpoena.
    So I wish you would address Section 215 in that context. 
If, in fact, the records of a library should be protected and 
are somehow sacred, can the same not be said for medical 
records and other business records that might be swept up in 
the same Section 215 effort?
    Attorney General Gonzales. Thank you, Senator. You bring up 
some, I think, good points. Obviously, Section 215, in my 
judgment, has been subject to a great deal of misunderstanding, 
and let me repeat what I said earlier. This Department and the 
Government has no interest in the library reading habits of 
ordinary Americans.
    We do believe, however, that libraries should not become 
safe havens for people who are here in this country and do want 
to do harm to other Americans, and we do have evidence of that 
happening even though Section 215 has not been used in 
connection with library records. We do know that there have 
been examples of terrorists who are using access to computers 
at libraries.
    As I said in my statement, we do believe that there is an 
inherent right, but would support a change in the law to allow 
specific challenges to a Section 215 order, and would support 
changes in law that would allow someone to talk to an attorney 
in connection with preparation of that order.
    My own sense is that there are sufficient safeguards that 
many people choose to ignore, and that is let me just mention a 
few. This is not just the Government making this decision. We 
have to go to a Federal judge. That judge--
    Senator Durbin. But Section 215 requires the judge to issue 
the order. It is required. I can read it to you, but I know you 
are familiar with it. The language says specifically, ``Upon 
application made pursuant to this section, the judge shall 
enter an ex parte order.'' There is no discretion.
    Attorney General Gonzales. Once the U.S. Government 
presents information meeting the relevant provisions of the 
statute, you are right; the law does provide that the judge 
shall issue the order. But I quarrel with those who have 
characterized this as a rubber-stamp operation. We provide 
information to the judge. Judges often ask questions. Judges 
often ask us to go back and get information. We provide that 
information and then the judge makes the decision.
    Senator Durbin. The information is not individualized. That 
is my concern and Senator Craig's concern. You are not talking 
about a person suspected of; you are talking about a potential 
group of people that includes many innocent people. It is as if 
you said we have the authority to arrest and search large 
groups of people in hopes of finding one criminal.
    Under our system, there is more particularity required, is 
there not? And Section 215 does not include that.
    Attorney General Gonzales. There is, in our judgment, a 
relevance standard that should be applied in connection with 
215, relevance to terrorist activity or an intelligence 
    Senator Durbin. But is it individualized? Is it 
    Attorney General Gonzales. It is certainly applied as 
narrowly as we can, and people have the opportunity, Senator, 
after the fact--if the information is going to be used in any 
way in any kind of proceeding, they have the opportunity to go 
to another judge and contest the collection of that 
    Finally, I might remind you that we do have an obligation 
upon the Department to provide semi-annual reports about the 
exercise of this authority. So it is not true that the 
Department is using this authority in secret.
    Senator Durbin. Do you provide that information to the 
Judiciary Committee?
    Attorney General Gonzales. I don't know if it is--
    Senator Durbin. The answer is no. You give it to the 
Intelligence Committee. You don't provide the information to 
the Judiciary Committee, as I understand it. Is that correct, 
Mr. Chairman? I see my time is up.
    Chairman Specter. Well, we are counting this on your second 
round, Senator Durbin.
    Senator Durbin. I am going to stop, then. Thank you very 
    Chairman Specter. You are well into your second round, but 
we kept you waiting a long time. So under equitable 
considerations, we are giving you that extra time.
    Senator Durbin. Thank you. Thanks for stopping me, too.
    Chairman Specter. Besides that, you are on a subject of 
great concern to the Chairman.
    Senator Durbin. Well, many of my colleagues are waiting to 
ask and I won't dwell on it, but I wish we would receive more 
particular information than generic numbers. I think it might 
be more helpful.
    Thank you very much.
    Chairman Specter. Senator Leahy.
    Senator Leahy. Well, I agree with the Senator from 
Illinois. We might have reports, but, one, if we get them, 
usually we get them late, if we get them at all, and oftentimes 
they are meaningless. The fact is, no matter how much a judge 
might ask questions, the law says he shall give the order.
    I thought we left some of my questions up in the air 
earlier. And that may have been the time constraints, so let's 
just go back to it. Going back to the 2001 State Department 
report on Iraq which was talking about Saddam Hussein, it says 
the security services routinely and systematically tortured 
detainees. According to former prisoners, torture techniques 
included branding, electronic shocks administered to the 
genitals and other areas, beating, pulling out fingernails, 
burning with hot irons and blow torches, suspension from 
rotating ceiling fans, breaking of limbs, and denial of food 
and water.
    Now, under those circumstances, suppose we had had a 
detainee here and we had Saddam Hussein's assurances that he 
would not be tortured if he was rendered back to Iraq. Does 
anybody think we would have rendered him back? We would not 
have relied on his assurances, would we? I realize it is a 
hypothetical, but I can't imagine we would.
    Attorney General Gonzales. Senator, I think you present 
sort of an extreme hypothetical. Obviously, we would look 
carefully at the record of the country in terms of how they 
have dealt with other individuals that they are holding in 
their custody. We would look at the record of the other country 
in how they have met their other commitments to this country.
    Senator Leahy. Before we get too far into the hypothetical, 
are you suggesting that there is anybody in any administration 
that would have rendered somebody back to Saddam Hussein under 
his assurances?
    Attorney General Gonzales. I am not suggesting that, no, 
    Senator Leahy. Okay, so let me ask you about another area. 
We have, however, relied on assurances from Uzbekistan that 
they would not torture detainees transferred from U.S. custody. 
Now, I am going to read somewhat similar words to cover the 
2004 State Department human rights report on Uzbekistan.
    Quote, ``Police, prison officials and the NSS allegedly 
used suffocation, electric shock, rape and other sexual abuse. 
However, beating was the most commonly reported method of 
torture. Authorities frequently and systematically applied 
torture, including severe beating, suffocation and electric 
    Do you think that Uzbekistan's promise that they would not 
torture detainees is trustworthy or even credible?
    Attorney General Gonzales. I think a country that would 
have that kind of record, we would have to receive some very 
special assurances to satisfy ourselves in meeting our legal 
obligations that it is more likely than not that someone that 
we sent over in their custody would not be tortured.
    Senator Leahy. Well, the President in his March 17 press 
conference was asked a question and he declined to answer. 
Perhaps you can answer it. What is it that Uzbekistan can do in 
interrogating an individual that the United States cannot?
    Attorney General Gonzales. What is--
    Senator Leahy. What is it that Uzbekistan can do in 
interrogating an individual that we might send there that the 
United States cannot?
    Attorney General Gonzales. I don't know how to answer that 
question, Senator. I do know that the policy of this country is 
that we will not engage in torture or condone torture.
    Senator Leahy. I know that. We are not going to condone 
torture. We have this unmarked--actually, ``unmarked'' is 
probably not the best way to describe the CIA planes because 
you can go on the Internet and you can find out which places 
they have landed and taken off. They won't tell us, but you can 
easily find it on the Internet.
    We say we won't torture this person, but we put him on the 
plane and send him to a country that does torture. I am not 
sure that we really have standards. I mean, if our standards 
are to rely on their assurances that they won't torture 
somebody, do you really think, with some of the countries that 
we send detainees to, that that is an adequate assurance?
    Attorney General Gonzales. Well, again, Senator, we take 
this obligation very, very seriously and we know what our legal 
obligations are. We know what the directive of the President 
is, and each case is very fact-specific.
    Senator Leahy. That is going to be great comfort to the 
Canadian citizen sent to Syria and then being tortured.
    Attorney General Gonzales. Senator, with respect to that 
particular case, I think he was--he wasn't rendered. I believe 
he was deported.
    Senator Leahy. He was not allowed to continue to Canada 
once he got into the United States, even though he was a 
Canadian citizen.
    Attorney General Gonzales. He was also a Syrian citizen, I 
believe, sir.
    Senator Leahy. I know. A lot of people have dual 
citizenship, but if he had had a dual citizenship with a lot of 
other countries, we would have sent him on to Canada.
    Would you support legislation to make diplomatic assurances 
an insufficient basis for determining that a detainee would not 
be in danger of being tortured if he was rendered to another 
    Attorney General Gonzales. Senator, I would certainly 
consider legislation. I believe that the administration is 
currently meeting its legal obligations.
    Senator Leahy. In mid-January, you opened a wide-ranging 
investigation into reports from the FBI about the military's 
use of coercive and abusive tactics against prisoners held in 
American custody at Guantanamo Bay and in Iraq.
    What is the scope of the investigation and when is it 
expected to be concluded?
    Attorney General Gonzales. Senator, there are, as you know, 
a series of investigations about the potential abuses that have 
occurred in various theaters of operation. Some investigations 
are here in Congress, some within DOJ, some within DOD, some 
within CIA. All those are at various stages of progression.
    I have asked folks within the Department to try to get a 
sense of where things stand. I have already received one report 
and I am waiting for additional information to get an 
assessment of how these investigations stand.
    Senator Leahy. Will you let us know when you hear?
    Attorney General Gonzales. I will be happy to share with 
you what I think I can, sir.
    Senator Leahy. Director Mueller, has the FBI transferred 
detainees to other countries, and if so, which countries?
    Director Mueller. I don't believe so, in the context in 
which you are saying it, which I presume is--
    Senator Leahy. No, not in the context in which I am saying 
it. Have you transferred detainess to other countries?
    Director Mueller. I don't believe so.
    Senator Leahy. Will you double-check that?
    Director Mueller. Yes.
    Senator Leahy. I am not asking about a country that might 
torture or not. I am just asking if you have transferred 
detainees to other countries.
    Have you been asked to?
    Director Mueller. I would have to get back to you on that. 
I don't believe so.
    Senator Leahy. If you are asked to, do you have a process 
of determining whether the person may be tortured if they are 
sent to another country?
    Director Mueller. We would do that in conjunction with the 
Department of Justice and with the Immigration Service if that 
is indeed the case.
    Senator Leahy. The Weapons of Mass Destruction Commission 
report says, we have been assured that it is currently the case 
that the Attorney General personally approves any interrogation 
techniques used by intelligence agencies that go beyond openly 
published U.S. Government interrogation practices.
    Is that accurate?
    Attorney General Gonzales. I can really speak with 
certainty about the actions of this Attorney General, Senator 
Leahy, and I can say that I am personally involved in 
    Senator Leahy. Can or cannot say?
    Attorney General Gonzales. I can say that I am personally 
involved in providing legal analysis and legal approval with 
respect to techniques.
    Senator Leahy. Have you personally approved the use of any 
extraordinary interrogation techniques?
    Attorney General Gonzales. There has been no decision to 
date with respect to that, sir. The answer to your question is, 
no, I have not.
    Senator Leahy. Thank you, Mr. Chairman. I will have other 
questions later.
    Chairman Specter. Thank you, Senator Leahy.
    It is now almost noon. As announced earlier, we would run 
until one and come back this afternoon. We have a little more 
than an hour until one o'clock, so we have time for eight 
rounds. Perhaps we will be able to finish by one o'clock. I 
know that would be a relief to the Attorney General and to the 
Director, who have a lot of other duties, and also to members. 
So we will see how we progress.
    Senator Hatch.
    Senator Hatch. Thank you, Mr. Chairman.
    One of key challenges in fighting terrorism is to share 
information among various governmental agencies. This was one 
of the central conclusions of the 9/11 Commission report. The 
recent WMD Commission report also made this point and singled 
out the FBI as an entity that could do better in sharing 
    I think that there is widespread agreement that one of the 
major benefits of the PATRIOT Act was, as both of you have 
noted in your testimony, the manner in which Sections 203 and 
218 acted to take down the wall that had previously existed 
between intelligence and law enforcement personnel.
    I would like both of you to tell the Committee about the 
efforts underway by each of you personally and your agencies to 
see that information is shared across the Federal Government, 
as well as with relevant State and local law enforcement 
officials and appropriate international partners in our 
worldwide battle against terrorism. In particular, I would like 
both of you to tell us how you share information with the CIA 
and other agencies within the intelligence community.
    Let me also say that I recognize that Ambassador Negroponte 
is not yet been confirmed as Director of national Intelligence, 
but I would like to know how you personally and institutionally 
plan on working with him and his office, with CIA Director Goss 
and with Secretary Chertoff, as well, to make certain that 
President Bush and other decisionmakers have all the available 
information they need and that the Congress can be assured that 
the DOJ and FBI are sharing information in a timely and 
comprehensive manner.
    So if you could both talk to that, then I have maybe one 
other question.
    Director Mueller. Let me just start with what we have 
established since September 11th. We started with a small 
intelligence office and have now built it into an intelligence 
directorate with several thousand intelligence analysts. One of 
the components of that is the development of reports officers. 
At last count, I had something like 183 reports officers whose 
responsibility it was to take information, strip off the 
sources and methods, and distribute that information and 
disseminate that information throughout the community, whether 
it be the intelligence community or State and local law 
enforcement, DHS.
    So as opposed to the presumption prior to September 11 that 
you did not disclose something unless there is a good reason, 
the presumption now for us is you disclose unless there is a 
good reason not to disclose.
    They will field intelligence groups in every one of our 
field offices. Those field intelligence groups include analysts 
and agents whose responsibility is to gather intelligence, but 
to do assessments as well as disseminate intelligence. So 
within the FBI we have developed a structure that we are 
still--I would agree with the Commission that we are still in 
the process of building it. We are not where we need to be, and 
we have a ways to go. But we are in the process of having an 
intelligence directorate that includes analysts, surveillance 
officers, language specialists, targeting officers, agents that 
will perform that intelligence function.
    With regard to the DNI, we would expect from the DNI, from 
Mr. Negroponte, taskings with reporting back, taskings to fill 
gaps that are perceived in the intelligence that is necessary 
to be gathered within the United States.
    With our fellow agencies, we have--as I indicated before, 
we have the national Counterterrorism Center, which combines 
access to all of our databases. There is access to the FBI 
databases, the CIA databases, DHS databases, DOD databases in 
this particular national Counterterrorism Center. We also have 
colocated elements of our counterterrorism division with 
comparable elements of the CIA and others so that they are 
sitting side-by-side, which will give us better coordination on 
transnational intelligence operations. That is a baseline that 
we have established for the exchange of information. We still 
have a ways to go, but I think we have made substantial 
    Senator Hatch. I think you are doing a terrific job up to 
that part, so I asked the question. I wanted to make sure that 
this is--I know you have had some criticisms, some of them 
unjust, some that may be just, in the sense that you are still 
not there. But you are working at it very hard.
    Let me just ask you both another question. I understand 
that the ACLU has run a television advertisement claiming that 
Section 213 of the USA PATRIOT Act allows law enforcement to 
search our 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. I would like to know if this is an 
accurate description of the so-called what you have criticized, 
I think adequately, search-and-peek, to use their language, 
provision. And am I correct in reading your report yesterday, 
this provision has only been used 155 times since 2001?
    Attorney General Gonzales. The ads are incorrect. We are 
required by law to provide notice in each and every case.
    Senator Hatch. So. So this is just typical of the efforts 
made against the USA PATRIOT Act. Am I correct?
    Attorney General Gonzales. You are correct in that we are 
required to provide notice, Senator Hatch.
    Senator Hatch. Okay. Well, Attorney General Gonzales, I 
take it from your testimony that you would not be averse to 
writing into Section 215 an explicit relevancy standard. As I 
understand it, you believe a probable cause standard to be too 
high a burden in the investigatory stage, and at our fielding 
hearing in Utah last year, Deputy Attorney General Comey 
suggested that the relevancy test was de facto employed by 
judges under Section 215. So I am pleased that you have 
signaled today that the Department is prepared to make what has 
been implicit explicit.
    So I just want to compliment you on that and compliment 
both of you. You have tough jobs. It is easy to sit back and 
take cheap shots at you, as many have done. But you folks have 
done as good a job as anybody in my 29 years now in the United 
States Senate has done, and you, General, in the short time 
you've been in there, but you, Director, have been in there 
ever since right after 9/11. And I just want to compliment both 
of you. We all know that things are never going to be perfect, 
but by gosh, you have both tried your very best to get them as 
perfect as you can and I want to personally let the whole world 
know just how good you really are.
    Director Mueller. Thank you.
    Attorney General Gonzales. Thank you.
    Chairman Specter. Thank you, Senator Hatch.
    Senator Feingold?
    Senator Feingold. Thank you, Mr. Chairman.
    First, with regard to the point that Senator Hatch was 
making, it is certainly accurate that the statute under Section 
213 does provide that there has to be notice within a 
reasonable period. But I do want it noted that that opens the 
possibility of a much longer period of time than what the 
various circuits have suggested. I understand that the three 
circuit courts have suggested 7 days. So the concern here is 
that it is a vague, potentially unlimited period for notice and 
I just want that noted in the record.
    Attorney General Gonzales. May I make a comment to that, 
Senator? I am told that the average time in which case the 
delay occurs is between 30 and 90 days. The other thing that I 
think people need to remember is that this is a determination 
by a Federal judge as to what is a reasonable period of time, 
depending on the circumstances that that judge is confronting.
    Senator Feingold. Let me move on. Mr. Mueller, just a quick 
follow-up on Section 215. The Attorney General said, I am sure 
accurately, that Section 215 has not been used to obtain 
library records. But I believe you mentioned earlier that 
libraries have voluntarily cooperated with the FBI, making it 
unnecessary to use Section 215. Can you clarify that? It sounds 
like they have given up library records, but you did not need 
to compel them under Section 215.
    Director Mueller. That is true. I mean, we have had in 
circumstances where librarians understand the, I would say, 
discreet inquiry and we've had occasions where, several 
occasions where in the course of terrorism investigations we 
have had to obtain library records. I only make that point to 
say that because we have not been forced to go to 215 does not 
mean that we have never had occasions where we have needed to 
go and obtain library records.
    Senator Feingold. I think that is an important 
clarification. Now it is clear on the record that library 
records have been obtained pursuant to these investigations. 
There are people out there on both sides distorting this issue, 
and I am pleased to say that it can no longer be said that 
library records have never been obtained, although not under 
the force of Section 215. But they have been obtained pursuant 
to investigations--voluntarily requested and obtained pursuant 
to terrorist investigations.
    Director Mueller. Yes, and on other occasions there had 
been sufficient predication for a possible criminal charge so 
that it may have been under the force of a grand jury subpoena.
    Senator Feingold. General Gonzales, as you know, the 
PATRIOT Act expanded the FBI's authority to obtain real time 
non-content information about telephone and computer 
communications by making it easier to obtain pen register and 
trap and trace device orders by clarifying that the pen trap 
authority applies to the Internet as well as to phone 
communications. It makes sense to apply the same rules to all 
types of communications, especially as technologies converge.
    The line between content and non-content information is 
simply harder to draw, as you know, in the context of Internet 
communications. In the telephone world, it is somewhat easier. 
The phone numbers dialed are not content but the actual 
conversation is; but in the Internet world there are gray 
areas. For example, it is unclear whether a URL, which 
indicates exactly where a person has gone on the Internet, is 
content that requires a full wiretap order. I understand from 
Deputy Attorney General Comey's recent responses to 
congressional questions that the Department requires field 
agents encountering these gray areas with regard to the use of 
pen traps to consult with Main Justice.
    How does the Justice Department evaluate whether an aspect 
of Internet communications such as a URL constitutes content 
under the statute?
    Attorney General Gonzales. Senator, this is a very--for me, 
because of my limited computer knowledge--complicated area. And 
you are right, it does raise, in my judgment, complicated 
questions. And I think it is appropriate to ensure that content 
is not being collected whenever the authorities under 214 are 
used. I do not have a specific answer for you. I can get that 
information for you. But I wanted to reassure you that, first 
of all, to acknowledge what we all know, and that is that this 
is a very--can be a complicated question; and also to reassure 
you and the rest of the Committee that we care very much about 
ensuring and having in place mechanisms so that we are not 
collecting content. Because that is not--214 is not about 
collection of content.
    Senator Feingold. Thank you, General. I look forward to 
working with you on that issue.
    Director Mueller, I understand that FISA evidence is far 
more frequently introduced in criminal prosecutions in the 
post-September 11th, post-PATRIOT Act era. Is that a correct 
    Director Mueller. I would have to check on that. It may 
well be. I do not have any way of knowing it without going back 
and actually looking at that and trying to determine what the 
incidence was beforehand and the incidence afterwards.
    Senator Feingold. Well, that is my understanding. We can 
talk about the specifics of it later. But I also understand 
that because of the strict standard currently in FISA, no 
criminal defendant has ever gotten access to the underlying 
surveillance application or order. That stands in sharp 
contrast to the introduction of criminal wiretap evidence at 
trial, where the wiretap law requires, of course, that 
defendants receive the full application and order so that they 
have the opportunity to challenge the underlying basis for that 
order. Is that a correct statement, that there is this 
difference between FISA and normal--?
    Director Mueller. Yes, that is a correct statement. But 
there is a judge that reviews it. In other words, a trial judge 
does review the adequacy of the presentation under the FISA 
laws for the issuance of the FISA order. So it is not as if it 
is not reviewed. It is reviewed by the trial judge.
    Senator Feingold. Fair enough, but if secretly collected 
FISA evidence is going to be increasingly used in criminal 
trials, I think we have to provide defendants with adequate 
opportunity to contest those orders. While your agents do a 
very good job, we also know that sometimes they make mistakes. 
People like Brandon Mayfield have been incorrectly targeted. 
And the FISA court, which also does an excellent job, does not 
benefit from an adversary process. Would you agree that before 
FISA evidence is used to prosecute people and put them in jail, 
defendants should get access to the reasons the Government had 
for secretly wiretapping their phone conversations or searching 
their homes, taking into account the need to protect classified 
    Director Mueller. No, I would not.
    Senator Feingold. You do not agree that they should get--
    Director Mueller. No. I would say that the judge who is in 
charge of the case should review the application. It is not 
just the evidence that may be presented, it is the capabilities 
we might have, all of which, in my mind, in the interests of 
national security, need to be protected. And I do believe that 
the trial judge who is evaluating the case against the 
defendant is in an appropriate position to balance the national 
security needs against the request of the defendant and his 
counsel to have access.
    Senator Feingold. Well, my time is up, but let me simply 
say, Director, I hope we can continue talking about this. I am 
not suggesting the judge should not play that role, but I am 
suggesting that the defendant should have a right to have the 
basic information he needs to let the judge know what his side 
of the case is so the judge can do the proper balancing.
    Director Mueller. Well, I think in the context of the 
criminal case, the defense counsel can and have--
    Senator Feingold. I am talking about the FISA.
    Director Mueller. About FISA. They understand that if FISA 
is out there, they are--they know the case against them. They 
are absolutely, and have in the past filed arguments as to why 
they should have access to the FISA. And the court has reviewed 
those and found them wanting.
    Senator Feingold. What I understand is they are not given 
adequate information to know that, but we will take that up 
another day. Look forward to working with you.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Feingold.
    Senator Sessions?
    Senator Sessions. Director Mueller, the principle that we 
worked on for many years in this country--it is fairly 
settled--is expectations of privacy. Courts have asked that 
question, fundamentally where there is not an expectation of 
privacy, subpoenas are adequate; where there is an expectation 
of privacy before the subpoena or administrative or grand jury 
is issued, the court must approve it, and that becomes a 
warrant requirement. Now, under FISA, I think you have made it 
pretty clear but I think it is important for us to talk about 
it one more time. Under FISA, the only thing that is unusual 
here is that the person on whom the subpoena is served does not 
have a right to object and go to court over that, because it is 
presumptively dealing with national security in a matter of 
sensitivity. Is that correct?
    Director Mueller. That is correct, sir.
    Senator Sessions. But before that--but the review is 
conducted before the subpoena is issued. A judge must approve 
that kind of subpoena before the FISA must approve it, before 
it is issued. Is that right?
    Director Mueller. Correct.
    Senator Sessions. But normally under grand jury subpoena or 
an administrative subpoena, a recipient of that can object and 
move to quash the subpoena and not produce the documents. Is 
that right?
    Director Mueller. That is correct.
    Senator Sessions. So under these administrative subpoenas 
that the FBI has been giving under the Privacy Act, if someone 
thinks they should not produce the records, they can object and 
having a hearing on it, and not produce the items.
    Director Mueller. That is correct.
    Senator Sessions. And not produce the items. Administrative 
subpoenas, again, are very common in the history of our country 
and existed all the time I was a prosecutor. Would you explain 
some, list some of the examples where administrative subpoenas 
are available today in non-terrorist cases, far less serious 
cases than these?
    Director Mueller. I think there are a number of various 
agencies that have--I think somebody mentioned the FDA already, 
but in narcotics cases, in health care fraud cases, in child 
pornography cases, sexual exploitation cases. You can rattle 
off a number of cases or areas in which administrative 
subpoenas have been accorded by the Congress understanding the 
necessity of getting that information and providing to the 
individual upon whom the subpoena is served the opportunity to 
contest it if they so desire.
    The one point I would make is that these are subpoenas to 
third parties for records and the like. These are to third 
parties for records and the like.
    Senator Sessions. That would require somebody to produce 
something out of their home, out of their locked glove 
compartment, inside a letter that has been addressed to them. 
All of those require a court-ordered warrant on probable cause, 
not relevance.
    Director Mueller. Correct.
    Senator Sessions. Is that right?
    Director Mueller. That is correct.
    Senator Sessions. You are looking, I think--
    By the way, do you know of any law--of course, under this 
act, libraries are not mentioned in any way, shape, or form by 
name, are they?
    Director Mueller. No, not at all.
    Senator Sessions. Do you have any citations for your 
authority that there's a sanctity of the library?
    Director Mueller. I meant to say that there is perceived-
by--librarians sanctity. I do not believe that it is written in 
the law anyplace.
    Senator Sessions. Well, they are not--I understand their 
desire to avoid unnecessary perusal of people's library 
records, but I am certain, as you said, that the FBI has no 
desire to scan everybody's library records. They have more to 
do than that.
    Now, there is a question about, under certain 
circumstances, the ability to forbid disclosure. It used to be 
banks and hotels and motels would produce documents and the 
agent or the local police detective would ask them not to tell 
the person because they were conducting an investigation, and 
they would not. My understanding from my experience in 
prosecuting is that more and more lawyers have told these banks 
and motels and other businesses that they can or should report 
any subpoena of the person's record. And this could have a very 
damaging impact on a very sensitive investigation, could it 
    Director Mueller. Without a question of a doubt. The 
disclosure of interest in an individual who is being targeted 
prior to indictment would result in the destruction of evidence 
quite often, perhaps a fleeing from the jurisdiction, and 
avoiding justice as a result of a filing of an indictment and 
charges once the investigation is complete.
    Senator Sessions. Now, Mr. Mueller, let us say you are 
investigating a terrorist cell in an area of this country and 
you have probable cause to believe that there is legitimate 
approval of probable cause to believe that at least one or more 
individuals have critical evidence inside a motel room. Can you 
explain to the average American why it might be necessary in 
the course of that investigation not to immediately disclose to 
the renter of that motel room that you have been in the room to 
examine whether or not evidence is there that might identify 
other people or the crime that is ongoing.
    Director Mueller. Let me give you an example that happened 
overseas, an investigation in which we were working with 
others. I learned that there was a substantial quantity of 
ammonium nitrate in a storage locker. Come to find out from an 
informant that there is a substantial amount of ammonium 
nitrate in the storage locker which is to be used for a 
substantial terrorist attack. At the time, at that point in the 
investigation the investigators did not know who were the co-
conspirators, who had ordered it, who was going to carry it 
out, whether there was a vehicle available. But they did know 
that there was ammonium nitrate in a storage locker, a 
substantial amount that could be used for an explosion.
    Assuming that had come in the--if that was in the United 
States where we came across this information of ammonium 
nitrate in a storage locker but still had to continue the 
investigation, we would go to court and get an order to go in 
and seize that ammonium nitrate, replace it with an inert 
substance, delay notification so we could continue the 
investigation to determine who had ordered that this plot be 
undertaken, who was paying the rent on the storage locker, and 
continue the investigation so that we could take out not just 
that ammonium nitrate in the storage locker but all of those 
who were involved in that terrorist plot. And so the delay of 
notice would be absolutely instrumental in that occasion to 
assure that we could wrap up those who intended to harm the 
United States.
    Were we not to have that and we had to give notification to 
the owner of that storage locker, we would have to perhaps not 
even be able to arrest that person because we would have 
insufficient information to arrest that one person, much less 
all of those who were involved in the plot.
    Senator Sessions. And all of his buddies would scatter like 
a covey of quail.
    Director Mueller. Absolutely. As soon as you go in with 
police and seize that--in plain view go in and seize that 
ammonium nitrate, not only would, quite obviously the press 
would pick up on it very quickly and everybody would be in the 
    Senator Sessions. And that is done on drug cases.
    Director Mueller. In drug cases--
    Senator Sessions. Before the PATRIOT Act was passed, you 
could do that in drug cases?
    Director Mueller. Yes, and I think I gave the example of 
Ecstasy coming in the country, where we didn't want the Ecstasy 
distributed. And yet the investigation was not completed, and 
so we went through a ruse. We seized the Ecstasy but continued 
the investigation, leading to the arrests of over a hundred 
individuals who were involved in the plot. That is the 
importance of the delay of notification.
    Senator Sessions. I think it is critical. We cannot allow 
that to be eroded.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Sessions.
    Senator Feinstein?
    Senator Feinstein. Thanks very much, Mr. Chairman.
    Mr. Mueller, I wanted to clarify our prior round of 
questions here. In 2003, the Intelligence Authorization Bill 
contained language which mandated the DCI prepare standards and 
qualifications for intelligence officers. It is now 2005. When 
was this mission completed?
    Director Mueller. I am not certain. Within the Bureau, the 
mission was completed, I believe, December of 2004.
    Senator Feinstein. So you did receive the standards and 
    Director Mueller. Well, I would have to see to what extent 
our Intelligence Officers Certification Program is dependent on 
standards and qualifications from the intelligence community. I 
know we have completed our Intelligence Officers Certification 
Program as of December of last year, if that is what you are 
referring to. Maybe I am confused.
    Senator Feinstein. Well, it is my understanding that the 
DCI has not complied with the law. If you would--
    Director Mueller. We will check on that.
    Senator Feinstein.--please find that out and let me know--
    Director Mueller. I will.
    Senator Feinstein.--I would appreciate it very much.
    Director Mueller. I did not mean to, in my answer to your 
previous question, Senator, leave the impression that we have 
not built up a substantial cadre of intelligence specialists 
within the FBI. We have. And we have an intelligence 
directorate now of several thousand persons, including 
analysts, agents, surveillance, language specialists in the 
intelligence directorate. What I was referring to is the 
specific certification has not been done, but I did not want to 
leave the impression that we have not taken substantial strides 
in response to the legislation the President has directed to 
establish the intelligence directorate we have.
    Senator Feinstein. I appreciate that very much, and I know 
you have made those strides. I just want to see that the 
intelligence end has been complied with, and I do not believe, 
based on what I know, that it has.
    I would like to ask a question on the roving and John Doe 
wiretap, if I might, Mr. Attorney General. Section 206 creates 
roving wiretaps which allow the Government to get a single 
order that follows a target from phone to phone. In addition, 
the Intelligence Authorization Bill, passed shortly after the 
PATRIOT Act, allows the Government to issue John Doe wiretaps, 
where the phone or facility is known but the target is not 
known. The way that the two laws were written seems to allow 
for a general wiretap, one that follows an unknown suspect from 
unknown phone to unknown phone.
    Does this mean that you could get a John Doe wiretap to 
listen to all the telephones in a certain area? I realize that 
sounds physically impossible, but just for a moment assume the 
technology is there. Does the law as written give you that 
    Attorney General Gonzales. The short answer is no, Senator. 
Before I follow up on that answer, I cautioned earlier about 
the ACLU and the fact that we had not had a great deal of 
opportunity to look at it. You asked my specifically about the 
Mayfield case, and I am advised that there were certain 
provisions of the PATRIOT Act that apparently were used, 
specifically the information provisions were used, the 207 
authorities were used, which extended the duration of the 
electronic surveillance, and I am told in some sense 218 was 
used, although quite frankly I am not sure in what sense it was 
used, since I was told the contrary last night. So I did not 
want to leave you or the Committee with a misimpression about 
that. Obviously we will look into it further and give you the 
most accurate information.
    Senator Feinstein. I really appreciate that. I think it is 
important, since this has become an issue that we clarify 
exactly where it is.
    Attorney General Gonzales. As to your question about roving 
wiretaps, we believe there is an obligation with respect to 
Security 206 to either identify the person by name or to 
provide some type of specific description about a particular 
individual, that the authority is to be used with respect to a 
specific target and that, if for some reason we were mistaken 
about the target--we now say, well, this is the guy we really 
want to go after--we have to go back to the court and get an 
additional authority under 206. I also believe that there is--
    Senator Feinstein. Beyond what point? Beyond what point 
would you have to get additional authority? How wide would the 
tap have to be?
    Attorney General Gonzales. I was referring only with 
respect to any event that we had concluded that we had the 
wrong target. It is not a case that 206 could be used on one 
person and then we could simply use that authority to tap the 
phones of another person. It is target-specific, and 206 does 
give us the authority to either identify the target by specific 
identity or by some kind of specific description to the court.
    Senator Feinstein. So once you have identified the 
authority, you cannot use that tap in any other capacity in 
that area. Is that correct?
    Attorney General Gonzales. We cannot use that tap with 
respect to another target.
    Getting to the second prong of your question about the 
scope. Could we simply go up on phones in, you know, an entire 
city because, you know, a person might be in the city, there is 
a limitation that we have some reasonable basis to conclude 
that a set of phones is either being used or is going to be 
used by that specific target. So I think that there is that 
limitation on the law as well.
    Senator Feinstein. But it is a pretty broad authority. I 
could see it being construed to use it in a very wide area.
    Attorney General Gonzales. It may be viewed as a broad 
authority by some, but I would like to remind you and the 
Committee again, it is a probable cause standard. Both prongs 
have to meet a probable cause standard nd we have to satisfy a 
Federal judge. And so we present information to a Federal judge 
and satisfy the probable cause standard that in fact we have a 
specific target and we could limit the scope of the 
    Senator Feinstein. Thank you. I would like to ask you about 
the definition of domestic terrorism in the bill. Section 802 
defines it. As I understand the definition, it is any actions 
occurring primarily within the United States if they involve a 
violation of State or Federal law; secondly, appear to be 
intended to influence Government policy or civilian population 
by intimidation or coercion; and three, involve acts dangerous 
to human life.
    Now, some contend that this is a very broad definition and 
thus expands the type of investigative conduct law enforcement 
agencies may employ. Because of the chilling effect that this 
might have, there is concern. My first question would be how 
would you justify such a broad definition. And the second 
question is if you could explain how the words appear to be 
intended or are understood by your Department.
    Attorney General Gonzales. I think that, first of all, let 
me begin by saying that, of course, this does not create a 
crime of domestic terrorism. It simply provides a definition of 
domestic terrorism to be applied with respect to a variety, a 
number of other statutes.
    Concerns have been raised with respect to this particular 
provision that it may in fact chill organizations and groups 
that want to, you know, protest and march against this 
Government, things of that nature. That is why the law was 
written the way it was, so that we are talking about actions 
that were already in and of themselves violations of some other 
criminal statute and also about those kinds of actions that 
would involve the actual endangerment of human life. And 
therefore the kinds of protests that we see from time to time 
here in Washington would clearly not be covered within the 
definition of domestic terrorism.
    Senator Feinstein. Except by the vagary of the way the 
statute is worded. You use the term ``involves loss of human 
life,'' but that is not necessarily correct because it is a 
broad statement, as I understand it, of ``any violation of 
State or Federal law,'' not just State or Federal law that 
involves a threat to human life.
    Attorney General Gonzales. My understanding, Senator, is 
that both of those--that all three would have to be met, is 
that there would be a violation of a statute, action intended 
to influence or protest Government actions--although that 
second prong, I would have to look at the statute 
specifically--but the third prong as well, as to endanger human 
    Senator Feinstein. Thank you for that explanation. Could 
you explain the words ``appear to be intended'' and how they 
are understood?
    Attorney General Gonzales. I do not--I would like the 
opportunity to get back to you on that, Senator.
    Senator Feinstein. I can understand that.
    Okay, thank you very much. If you would, I would appreciate 
    Attorney General Gonzales. Yes, ma'am.
    Senator Feinstein. Thank you. Thank you, Mr. Mueller. Thank 
you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Feinstein.
    The national Security Division, which we talked about a 
little earlier, has been a recommendation of the national 
Commission which reported last week. I frankly have grave 
doubts that it is a matter of restructuring, but I would be 
interested in your views, Attorney General Gonzales, as to 
whether you think restructuring would really be relevant and 
germane or the issues are much more substantial. And similarly 
with you, Director Mueller.
    Attorney General Gonzales. Mr. Chairman, even before the 
report came out, I directed that there be a review within the 
Department as to whether or not we should look at 
restructuring. As the WMD Commission report indicated, we are 
probably the only Department that has not engaged in any kind 
of restructuring following the attacks of 9/11--Main Justice, I 
am referring to. I think that there are, certainly one could 
argue there are good reasons why a restructuring would make 
sense. Let me preface my remarks by saying that there's been no 
decision, and obviously we would want to consult with the 
Congress about a possible restructure and get their views.
    But in the interagency process I feel that sometimes the 
Department is not as well represented as it should be often. If 
I am not available or if the Deputy Attorney General is not 
available, then it really falls down to sort of a deputy 
assistant attorney general, and sometimes that is probably not 
the best representation for the Department and some very 
important decisions have to be made on the interagency process.
    We now have--in my judgment, the Criminal Division has a 
great deal of responsibility. More and more personal attention 
is required with respect to counterterrorism and 
counterintelligence issues, and one has to question whether or 
not it would make some sense to move certain operational 
responsibilities out of the criminal division. You have the 
counterterrorism reporting up to one deputy assistant attorney 
general, counterespionage into another deputy assistant 
attorney general, and I do not know if that is the right way to 
structure it.
    So it is something that we are looking at very seriously.
    Chairman Specter. Why has that not been done up till now?
    Attorney General Gonzales. Sir, I do not know why it has 
not been done up to now. I suspect that people have been 
focused on exercising other authorities to protect this 
    Chairman Specter. Director Mueller, what do you think about 
it? Is it necessary? Would it really make a difference for you, 
your unit?
    Director Mueller. Well, the concerns the WMD Commission 
pointed out are very valid and they are substantial. In terms 
of our building up the capabilities to an intelligence 
structure. And when they point out that the Office of 
Intelligence is weak because it does not have budgetary 
authority, it does not have control over certain of the 
analysts, they are absolutely right. We have to build up an 
intelligence capacity within the Bureau. I am completely open 
to whether restructuring will aid that, and I look forward to 
sitting down with the commissioners--I am going to do it this 
week--to have a discussion about their recommendations. I am 
open to it. More has to be done. I think we have made strides, 
but we still have a ways to go. And they point out areas which 
we have not gone as far as any of us would like.
    So I look forward to not only talking with the 
commissioners, but also spending time with the Attorney General 
to determine whether any restructuring, how that would fit in 
with what is happening in the Department of Justice, because it 
is the two of us working together.
    Chairman Specter. Director Mueller--
    Director Mueller. And DNI, if I might say. The relationship 
with the DNI is particularly important and I want to have an 
opportunity to sit down with the DNI and look at how the 
restructuring proposed might assist him and his 
    Chairman Specter. Well, the restructuring is fine, but it 
is going to take a lot more coordination. This is something 
that you and I are going to talk about in greater length after 
today's hearings and will be a very important provision for 
this Committee's oversight.
    When I finished my last round, I was on a fellow known as 
Curveball, and it was rather obtuse as to--but I wanted to end 
on time, which I think is important to keep this hearing 
moving. But just by way of slight amplification, Curveball was 
supposed to have been the name for an informant who gave 
information which was relied upon that Iraq had weapons of mass 
destruction. And there were serious challenges to Curveball's 
veracity and, in a surprising way, both former Director Tenet 
at the CIA has been quoted as saying he never heard of 
Curveball and, similarly, Deputy Director McLaughlin has been 
quoted as saying that he never heard of Curveball. And those 
are questions which really need to be answered on the record, 
aside from simply the newspaper accounts.
    But so often we find that this sort of thing occurs just 
sort of incomprehensible when major decisions are made and the 
matters to not get to the upper echelons. It places a very 
heavy burden on the Attorney General and on the Director. But 
as those questions were asked about the questioning at 
Guantanamo, it really is something that has to get to the upper 
echelons because, regrettably, if it does not, the action 
simply is not taken.
    There are a couple of other questions I want to come to 
before concluding the hearing. When we were talking about 
tangible things, Attorney General Gonzales, talking about 
probable cause as opposed to relevance and Senator Durbin 
raised the question about whether the Judiciary Committee got 
information, we are going to seek a memorandum of understanding 
that now goes to the Intelligence Committee. But would there be 
a major burden if probable cause were used as opposed to the 
standard of relevance? As Senator Durbin pointed out, once you 
have relevance, there is a ``shall'' requirement that the judge 
issue the search and seizure warrant. How big a burden would it 
be if the traditional standard of probable cause were used 
    Attorney General Gonzales. Well, Mr. Chairman, I think that 
probable cause is appropriate in connection with searches and 
seizures. When we are talking about provisions such as 215, 
that is not a search in the traditional sense. That represents 
simply obtaining information from a third party, where there is 
less, I think, expectation of privacy. And information is 
gathered--this is the way it happens in criminal cases. You use 
grand jury subpoenas to gather information using relevancy 
standards, and then once you gather--it is a building block, 
and once you gather the information, then you use that to 
conduct your searches and seizures. And so I am told by our 
agents and the prosecutors that if we were to elevate, for 
example, the standard with respect to 215 from relevance to 
probable cause, no one would use 215. And I just think it is an 
important tool, that we ought to make it a viable tool, and I 
am concerned that if in fact the standard were raised, that 
would not be the case.
    Chairman Specter. Attorney General Gonzales, in your answer 
I heard you use the term ``search and seizure'' after you said 
it was not a search and seizure. It seems to me it is a search, 
going after a specific record; and then a seizure to obtain it.
    We are going to have a closed-door session on the 12th, a 
week from today, and I am going to want to hear specifics. I 
like to function on a fact-oriented basis.
    Attorney General Gonzales. As do I, Senator.
    Chairman Specter. I want to hear specifics where there have 
been obtaining the records under a tangible-things Section 215, 
and specifically why there would be a problem on probable 
cause. My own experience has been that if you stop and think 
for a few minutes, you have a reason as to why you want it. 
Probable cause does not have to be some elaborate statement of 
an affidavit in the search warrant, it has to be the reason you 
are looking for. And there usually--if there is justification, 
I think the law enforcement officer can articulate a reason. 
But I want to come down to the specifics when we are in a 
closed-door session.
    Similarly, Director Mueller, when we talk about the search-
and-peek, you gave one illustration as to the provision 5 on 
catch-all. I want to hear more about it. As I cited to you, 
    Director Mueller. Ninety-two. I think it was 92--
    Chairman Specter. Twenty-eight matters where they were 
solely on the basis of that exception. And here again, I would 
like to hear the specifics as to why they do not fall into a 
specific category.
    And on the multi-point wiretaps, where you have the non-
specification of an individual, as Senator Feinstein talked 
about, the John Doe wiretaps, and you have multi-points, it 
seems that it is really generalized. And there are 49 of these 
applications made--and here again, I want to get into the 
specifics as to exactly what they are.
    Our Committee has been looking at possible legislation on 
an expansion of the authority of the FISA court to be the 
central court where applications are made for habeas corpus on 
detention. We now have conflicting decisions by the district 
courts. I would be interested in your views, Attorney General 
Gonzales, if you think that would be helpful to have that 
concentrated in one court so you have uniform application.
    We are also thinking about spelling out some of the--in 
more detail. It is congressional authority under the 
Constitution to deal with this issue of detentions, but what, 
do you think it useful from the point of view of the Department 
of Justice if there was a central court, to avoid the question 
of conflicting decisions?
    Attorney General Gonzales. I think it could certainly be 
useful, Mr. Chairman. Obviously, we would like the opportunity 
to look at the legislation.
    Chairman Specter. Well, you will have a chance to look at 
the legislation. How about you, Director Mueller? How about 
disagreeing with the Attorney General for once here today?
    Director Mueller. I disagree with the Attorney General. I 
do not think that--
    No. I have not had a chance to think about whether a 
central court in that circumstance would make a difference. I 
would like to get back to you on that.
    Chairman Specter. Attorney General Gonzales did not have a 
chance to think about it, either, but he had an answer.
    Attorney General Gonzales. I said I thought it could be 
    Chairman Specter. We are going to be having another hearing 
on the PATRIOT Act on May 10. We have started early. This is a 
big issue.
    I was about to conclude the hearing until my peripheral 
vision was a little too good to see Senator Schumer return. 
Senator Schumer, you do not have any more questions, do you?
    Senator Schumer. Just one, very brief, Mr. Chairman.
    Chairman Specter. Proceed in that event.
    Senator Schumer. Thank you. And I appreciate it and 
apologize for coming back and forth to the witnesses and to 
you. We have three different committees going.
    Chairman Specter. Oh, it is quite all right, we know you 
are busy. Especially since you promised only one question.
    Senator Schumer. Exactly.
    This is to Director Mueller. It has several parts, as the 
Chairman knows.
    Director Mueller. Somehow I am not surprised.
    Chairman Specter. Director Mueller, he can ask you as many 
parts as he wants. You only have to give one answer.
    Senator Schumer. With many parts.
    Anyway, Director, I know that you, in response to a letter 
that I, along with Senator Lautenberg and others, sent--this is 
just to follow up on the guns issue that I had asked about 
before--have formed a working group to review this problem. 
When can we expect to hear from the working group in terms of a 
real time frame?
    That is my only question.
    Director Mueller. It is a Justice Department working group 
under the Attorney General, sir.
    Senator Schumer. Ah. Excuse me.
    Director Mueller. So for once I will defer to the Attorney 
    Senator Schumer. Then let me--
    Attorney General Gonzales. Senator Schumer, I do not have 
an answer, but I will respond to you shortly as to when we will 
have a report.
    Senator Schumer. What, is it going to take a very long 
time, or are we going to get back before the PATRIOT Act comes 
before us?
    Chairman Specter. You are on your second question, Senator 
    Senator Schumer. Well, that was a follow-up question. You 
are a good attorney, better than me. Follow-up questions.
    Attorney General Gonzales. I would hope it would not take a 
long time, but I need to check with my staff, Senator.
    Senator Schumer. Okay. Could we get an answer back in 
writing as to when it would--when we would get the answer?
    Attorney General Gonzales. We will do our best, Senator.
    Senator Schumer. Thank you.
    Mr. Chairman, was a I brief enough?
    Chairman Specter. I consider those three questions all 
within the ambit of the single question.
    Let me thank you on behalf of the Committee, Attorney 
General Gonzales and Director Mueller, for the service you 
perform. Attorney General Gonzales spent 4 years as White House 
Counsel--and you have had a very distinguished career. I think 
Senator Sessions was right, a little undue modesty in terms of 
your long tenure as U.S. attorney both in Boston and San 
Francisco, assistant attorney general. And these are very 
knotty problems and I am glad to see some showing of 
flexibility. I think there has to be a little give on some of 
these issues. And as I say, when we have the closed-door 
session, I want to see the specifics. I want to see exactly 
what is going on and how we might leave you the authority you 
need but still have the specifications so that the standards 
are interpretable by people down the line to protect civil 
    I would like to see both of you gentlemen in the back room, 
if I might, for just a minute.
    That concludes the hearing.
    [Whereupon, at 12:47 p.m., the hearing was concluded.]
    [Questions and answers and submissions for the record 
    [Additional material is being retained in the Committee 




                         TUESDAY, MAY 10, 2005

                              United States Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 9:30 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Arlen 
Specter, Chairman of the Committee, presiding.
    Present: Senators Specter, Kyl, Cornyn, Leahy, Biden, 
Feinstein, Feingold, and Durbin.

                   THE STATE OF PENNSYLVANIA

    Chairman Specter. Good morning, ladies and gentlemen. It is 
precisely 9:30, so the Committee on the Judiciary will now 
proceed to a hearing on the PATRIOT Act.
    This is our third hearing. Earlier we had testimony from 
Attorney General Gonzales and FBI Director Mueller and then we 
had a closed session in examining the provisions of the PATRIOT 
Act. As we have stated, we are going to be looking at specific 
factual situations to make our determinations as to what 
changes there ought to be in the PATRIOT Act, and I do not say 
``what changes, if any,'' because Attorney General Gonzales has 
stated his own view of the need for some changes. I think his 
changes are probably not as extensive as will be recommended by 
the Committee, at least in legislation. But I compliment the 
Attorney General for his openness in meeting with quite a 
number of groups which have objections to the PATRIOT Act. And 
I believe that that is a very salutary approach to give people 
an opportunity to be heard. Sometimes you find out things you 
had not expected. Sometimes you even change your mind if you 
have that kind of a hearing--a listening as well as a hearing. 
And it certainly is helpful on the overall approach to the 
issue if all sides feel that they have at least been heard and 
had a chance to present their views.
    We are going to be looking this morning at a continuation 
of the delayed notice on the search warrants. We have had some 
specification from the Department of Justice on the specific 
cases, their representation that there have been some 28 
occasions where the delayed notice was necessary to avoid 
seriously jeopardizing an investigation. We are going to make a 
review of those situations and our own factual determination.
    We are concerned about the provision on business records as 
to whether there ought to be a showing of probable cause or at 
least some showing beyond that which is now in the statute. And 
there has been some substantial concern and worry over the 
provision for library records and medical records. And we have 
been advised that the Department of Justice has never used them 
for library records, and that raises the obvious point: If it 
hasn't been used in that line, wouldn't it be wise to have a 
specific exclusion unless there can be a showing by the 
Department of Justice of the necessity for it?
    There are provisions which we will be taking a look at on 
the separation of the wall. I think that is a generalization. 
It is desirable to have the separation of the wall on foreign 
intelligence and criminal matters if evidence is uncovered in a 
Foreign Intelligence Surveillance Act case and it shows 
criminality, to be able to proceed there. But there has to be a 
good-faith effort by the individuals applying for the warrants 
to make sure that they are on the right line.
    We have a long list of witnesses today. The lead witnesses 
are two of our colleagues: Senator Craig and Senator Durbin. 
The time limits will be set at 5 minutes, which is our 
Committee's custom, and I am now going to yield to my 
distinguished Ranking Member. And I want the record to show 
that I am yielding back a minute and 10 seconds.

                        STATE OF VERMONT

    Senator Leahy. Mr. Chairman, I caught the hint.
    I am delighted to be here. I want to compliment the 
Chairman for doing this, and I appreciate his leadership in 
oversight. This Committee, as much as any committee in the 
Senate, should be involved with serious oversight of serious 
matters, and under his chairmanship, I am glad to see us going 
back to that tradition. And I appreciate it. All of us, whether 
Republicans or Democrats, are better off, and ultimately not 
only is the Senate better off with real oversight, but the 
American people are better off. And even though sometimes 
Presidents--and I have heard complaints from Presidents of both 
parties--complain about oversight, they are usually better off 
if we do it.
    It is interesting to note that this is catching. Our 
counterparts in the other body are also holding another hearing 
this morning on the PATRIOT Act. The Chairman said the Senate 
Select Committee on Intelligence has heard it. It has been the 
focus of more than a dozen hearings this year alone.
    It is no mystery why, when we seem to have a difficult time 
to get oversight hearings in other areas, important areas, we 
are getting it here.
    Just a little history. I will tell you a story about the 
history of this. In the final negotiating session of the law, 
former House Majority Leader Dick Armey, a man not normally 
seen as my political soul mate, he and I worked together and we 
insisted on adding sunset provisions for certain governmental 
powers that have great potential to affect the civil liberties 
of the American people. And these sunset provisions are the 
reason we are here today. It is why we are revisiting the 
PATRIOT Act. We have to revisit it because of what Leader Armey 
and I put into the Act.
    It also explains why we are getting some answers from the 
Department of Justice, answers that we were denied for years, 
but under the persistence of Chairman Specter and the tolling 
of the sunset provisions, suddenly the answers are coming 
    Now, the PATRIOT Act is not a perfect piece of legislation. 
I have been here 31 years. I have a hard time picking out what 
has been a perfect piece of legislation. I said as much when we 
passed it just 6 weeks after the 9/11 attacks, and I was 
Chairman of the Committee at that time.
    In negotiations with the administration, I did my best to 
strike a reasonable balance between the urgent need to address 
the threat of terrorism and the need to protect our 
constitutional freedoms. I was able to add many checks and 
balances that were absent from the administration's draft along 
with provisions to address other concerns such as border 
security and the terrible problem the FBI had with the lack of 
translators. Other members of the Committee and in Congress 
were able to include improvements as well. But I made sure that 
we would have oversight. I always knew and noted at the time 
that we in Congress would have to revisit these issues when the 
immediate crisis and the emotional aftermath of the crisis had 
    Now, we had some, even one on this Committee, who wanted to 
pass this legislation without even reading it, before it even 
came up from the administration. Fortunately, cooler heads 
prevailed. Cooler heads won over that sense of panic, and we 
actually read the legislation before we passed it.
    Now, legitimate concerns have been raised about various 
powers granted by the PATRIOT Act not so much for how they have 
been used but for how they could be used--not so much how they 
are used but how they could be used--and for the cloak of 
secrecy under which they operate. Since September 11th, 
Americans have been asked to accept restrictions on their 
liberties. They deserve to know what they are getting in 
return. Until then, this Senator is not going to ask the 
American people to give up any more of their liberties unless 
they know exactly what they are getting in return.
    So the sunset provisions ensured that. Dick Armey and I 
were afraid that the administration would not tell the American 
people what was going on. We were right. Now the answers are 
coming. And, Mr. Chairman, I am delighted we are here at this 
point, and I am glad these sunset provisions are there because 
finally we will get some answers.
    [The prepared statement of Senator Leahy appears as 
submission for the record.]
    I have 31 seconds left.
    Chairman Specter. Thank you very much, Senator Leahy, for 
that erudite statement and even more for the 31 seconds.
    Our first witness is our distinguished colleague, Senator 
Larry Craig, who served in the House of Representatives before 
coming to the United States Senate in 1990. He had been a 
member of this Committee in the 108th Congress, and we know 
that his departure was occasioned by a difficult matter of 
Committee selection. But we definitely miss him here.
    He is the principal author of the so-called SAFE Act, the 
Security and Freedom Enhancement Act of 2005. And Senator Craig 
and others who are sponsors of that Act have been cited as 
evidencing a concern about the provisions of the Act as to 
whether they are all necessary after 9/11 where, as Senator 
Leahy has accurately said, we passed the legislation and 
whether modifications ought to be made. And his sponsorship of 
that Act has really drawn into sharp focus the fact that people 
on all phases of the political spectrum--the left, the right, 
the center--have all expressed concerns, which is a signal for 
very close attention on the legislative process. So thank you 
for joining us, Senator Craig, and the floor is yours.

                            OF IDAHO

    Senator Craig. Well, Mr. Chairman, first and foremost, 
thank you for holding this hearing on the USA PATRIOT Act. As 
Senator Leahy mentioned, the House has held hearings; Intel has 
held hearings. Last year, as you referenced, when I served on 
this Committee, we held some hearings. But it is most 
appropriate for this Committee to once again review the PATRIOT 
Act and to make sure that changes, I think, that will be made 
in it are appropriate and necessary.
    When we originally passed PATRIOT, Congress did a number of 
good things. We came together in a bipartisan fashion to carry 
out a number of responsibilities of the Federal Government had 
to do one thing, and that was to protect our citizens. And we 
did something else that was very wise. We anticipated, as 
Senator Leahy mentioned, that hindsight would give us a better 
perspective on dealing with terrorism, and we put sunsets in 
the PATRIOT Act to force a re-examination at a later date of 
the expanded powers that Congress has given the Federal 
    Since then, we have looked at how the law is working and 
what impact it has had. The 9/11 Commission has given us some 
additional insight. Notably, that Commission cautioned us that 
the burden of proof is on Government to justify keeping 
expanded PATRIOT powers. This caution should be at the 
forefront of this Committee's deliberations now that the day 
has come to decide what to do with the expiring provisions of 
the PATRIOT Act.
    But I would also submit that even if the Government 
justifies its use of expanded powers, this Committee should ask 
a second question: How can we prevent the future abuse of these 
powers? This is the key question, I think, Mr. Chairman, a 
question that has certainly haunted me ever since I saw lives 
lost in my State of Idaho at the hands of people who were 
unquestionably well-intended in trying to preserve the peace. 
The folks back home find it awfully hard to just sit back and 
trust Government to do the right thing without the adequate 
checks and balances to prevent harm in case something goes 
wrong, in the case that good people make mistakes or have to 
turn over their cases to not-so-good people. And, of course, 
Mr. Chairman, you know what I am talking about. You held 
hearings on that situation in Idaho a good number of years ago 
where good people did bad things, and as a result of those 
hearings, we made changes in the way our Federal Government and 
the way the FBI operated.
    Our Nation has a great tradition of balance in the 
enforcement of its laws. PATRIOT should rest squarely in that 
tradition. Let me tell you of an experience I had this last 
week about tradition. I was at the police academy camps just 
outside of Amman, Jordan, where we are training thousands of 
Iraqis to become policemen. And one of the principal pieces we 
put in their new mental make-up as a law enforcement officer is 
how to Act in a democratic way. They do not understand the 
democratic principle of law enforcement and that those who are 
arrested have rights and should be treated forthrightly. I 
thought that most fascinating, that that is the one thing we 
are attempting to instill in law enforcement officers, and here 
we are reviewing a most important law in which we must 
understand that the greatest threat is life and liberty of our 
citizens at the hands of our Government if our Government goes 
    I am not here to stand up for the bad guys. I am worried 
about what happens when good guys make mistakes in some future 
administration and when the weakest links among us decide to 
abuse the law for their own ends, such as stifling political 
    The point is that our law cannot be written for the best 
and the brightest. They must also anticipate enforcement by the 
worst and the weakest. That was certainly the skeptical 
approach taken by our Founding Fathers, Mr. Chairman, when they 
crafted the blueprint of our Federal Government, the 
Constitution, and placed strict limits on the enormous powers 
of Government.
    I ask you to keep in mind these very thoughts as you review 
PATRIOT Act. If we cannot change human nature and prevent all 
abuses, the very least we can do is prevent the harm that might 
follow from them. This is where our bill comes in. You are 
right; it is a bipartisan bill. Senator Durbin will testify 
later. He and I and Senator Feingold and many of our colleagues 
have introduce S. 737, the Security and Freedom Enhancement Act 
that you referenced a few moments ago. This bill would make 
several narrow, targeted changes in PATRIOT. S. 737 is by no 
means the final word on amending PATRIOT. It addresses only a 
few of the more controversial PATRIOT provisions.
    I am well aware there are colleagues who are advocating 
additional changes in the law or the different approaches in 
the sections of the law as we have targeted in the SAFE Act. I 
want you to know there are some change from last year's 
rendition of the SAFE Act. We have taken a couple of those 
changes because the Department of Justice suggested that 
changes ought to be made, and we have incorporated that 
potential intimidation of witnesses should be another 
justification for allowing delayed notice of search. We have 
also responded to the concern that it is too burdensome to 
require weekly renewal of the authority of delayed notice of 
    I notice my time is up. I will submit the balance of my 
statement to the record, Mr. Chairman, but once again, this is 
as much about the future of the law and its enforcement as it 
is about current-day law and, once again, making sure that 
those firewalls are in place to protect the liberty and the 
freedom of our citizens.
    So I hope you will take this into consideration. We think 
we have put together a very strong, bipartisan approach to 
targeted amendments. We are not here to speak of repeal. We are 
here to speak of strengthening and clarifying PATRIOT Act.
    Chairman Specter. Thank you very much, Senator Craig. You 
are accorded a little more leeway when you are not a member of 
this Committee. Committee members have to stop exactly on time. 
But since you are not a member of the Committee--
    Senator Craig. Well, Mr. Chairman, I had the privilege of 
serving on this Committee before, and I remember that there 
were not the time rules there are today. I wish I were serving 
here today.
    Chairman Specter. Thank you.
    Does anybody have any questions for Senator Craig?
    Senator Leahy. Yes. Senator Craig, one, I appreciate your 
testimony. We talk about Ruby Ridge. As you know, as the 
Chairman I lived that for weeks and weeks and weeks with the 
hearings we had. And I agree with your thought that good people 
did bad mistakes on both sides.
    I think the tragedy of that one was--I remember the last 
question I asked Mr. Weaver or the last series of questions. I 
asked him if he thought he had been treated fairly in the 
hearings. He said he had. I asked him whether he had a 
different view of his Government, having seen the hearing that 
Senator Specter and I and others had held. He said a much 
different view. And I said knowing now that the questions could 
be asked, fairness could be brought forward, what would you 
have done in retrospect? And I remember the very sad answer: 
``I would have come down from the mountain.''
    And I think you and I would probably be in agreement in 99 
percent of the areas--or 100 percent of the areas where things 
went wrong. And that is what we want to avoid, that things get 
out of control, that we do not have the oversight.
    I think you would agree with me, would you not, that there 
are a lot of very, very good parts in the PATRIOT Act? I can 
think of meaningful judicial review of surveillance authorities 
where the judge is a real fact finder, not just a rubber stamp; 
meaningful oversight, timely reporting. These are things that 
we should try to retain. Would you agree?
    Senator Craig. Well, I would agree, and I also believe that 
in this new world we live in of terrorism, where preemption is 
so important because it saves lives prior to an act. You know, 
we were in the mode of going out after an Act occurred and 
finding all of the possible findings made and trying to create 
or craft a circumstance behind a guilty party, that is too late 
in this new business we are into. So there has to be some way 
of preemptive action while safeguarding the right of our 
citizens. And I think that our amendments and the Act itself is 
the right combination.
    Senator Leahy. Would you agree with me that a touchstone we 
should have--Benjamin Franklin said, and I paraphrase--I was 
not there, but I paraphrase. He said something to this effect 
when writing the Constitution and Bill of rights. He said a 
people who would give up their liberties for security deserve 
    Senator Craig. Well, I certainly don't disagree with that, 
and I think that that is a very important test for all of us. 
That is something that very early on in this new world we are 
living in, we had to figure out how much we were willing to 
give up and how we gave it up.
    I am still extremely frustrated every time I walk through 
an airport and I find some person going through my suitcase. 
That is an invasion in my privacy. I have given it up in the 
name of safe flight. How much more do our citizens have to give 
up on a daily basis? I find it very difficult to believe that 
the Federal Government can enter my home, strip my hard drive 
off my laptop, go through my records, walk out the back door, 
leave it neat and clean as if unentered, and never tell me they 
were there. That is a step too far. And that is a step too far 
in every circumstance, unless there is reasonable and just 
cause and it has been demonstrated to a judge. We are not even 
taking the right of entry away in the first instance. We are 
simply establishing reasonable notification after the fact.
    Senator Leahy. I would hope that both liberals and 
conservatives would agree on what you have just said. Somebody 
once said to me, you know, probably the proudest thing you have 
in your life is being a United States Senator. I said, no, the 
proudest thing is being an American. And that I did not have to 
work for. I was born in the State of Vermont, born that way. My 
grandparents immigrated to this country to become--not even 
speaking the language, but to become Americans, and it is 
because of the freedoms we have. I think if there is an area 
where we can make common cause, all of us, it is in protecting 
those freedoms. And we could protect them and have a secure 
Nation. Of course, we face different threats today. Of course 
we do. But if this great Nation cannot defend our security and 
protect our liberties at the same time, what do we have?
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Senator Leahy.
    Senator Cornyn?


    Senator Cornyn. Thank you, Mr. Chairman.
    Mr. Chairman, I do appreciate your holding these oversight 
hearings on the PATRIOT Act, and I think it is very important 
for all the reasons stated. And I appreciate our good colleague 
and friend Senator Craig for expressing the concerns that he 
has. While I have some reservations about his proposed 
solution, I agree wholeheartedly with his concerns. And I think 
it is important that we proceed to try to determine what the 
facts are.
    Unfortunately, as far as the PATRIOT Act is concerned, 
people condemn the PATRIOT Act entirely based on not the facts 
but on emotion and on spin. I think Senator Feinstein has been 
the one who I have appreciated her efforts to ascertain the 
facts during the course of our oversight hearings on the 
PATRIOT Act by determining whether there is any substance to 
some of the complaints. And, in fact, there is, I have 
concluded, very little substance.
    While we all are left to speculate about the effect of laws 
that we actually pass, the best teacher is experience. And I 
think we have seen the PATRIOT Act has held up well in 
experience in terms of providing security but not unduly 
jeopardizing our liberty.
    So I appreciate your having these hearings. I look forward 
to the testimony. But I hope that in the end we will do as we 
always try to do, but sometimes don't succeed, and that is to 
make our decisions based on the facts and on experience rather 
than on emotion.
    Thank you very much.
    Chairman Specter. Thank you very much, Senator Cornyn.
    Senator Feinstein, if it is acceptable to you, may we turn 
to Senator Durbin, who has just arrived?
    Senator Feinstein. Absolutely.
    Chairman Specter. He is our second witness. I know when 
your round of questioning comes, you will want to have some 
questions for Senator Durbin.
    Senator Feinstein. Thank you.
    Chairman Specter. We welcome you here, Senator Durbin, 
elected to the United States Senate in 1996 and re-elected in 
2002, a distinguished record on many, many very important 
substantive matters, was elected as assistant Democratic 
leader, which he serves on at the present time. We thank you 
for joining us, and I don't have to comment to you, Senator 
Durbin, since you are a member of this Committee, about the 
time limitations.

                       STATE OF ILLINOIS

    Senator Durbin. Mr. Chairman, thank you very much, and my 
apologies to you and the members of the Committee and to my 
colleague, Senator Craig, for my tardiness here. Unfortunately, 
as you mentioned, some of the leadership responsibilities 
conflict with this hearing schedule.
    Thank you for holding this meeting, Mr. Chairman. I commend 
you for doing it. I think it is a timely thing to do. There 
isn't one of us in this room who does not recall exactly where 
we were when 9/11 took place and we learned about that terrible 
tragedy. And there is hardly a one of us who does not believe 
that that was one of the most traumatic moments in our lives 
when it comes to the history of our country, that we were the 
victims of this invasion, killing 3,000 innocent Americans. It 
led us to take extraordinary action on Capitol Hill as well as 
across the Nation to protect ourselves. And one of the most 
extraordinary things we did was the passage of the PATRIOT Act.
    I felt at the time it was the right thing to do. I was not 
100 percent certain because I knew that my decision on this 
bill was somehow caught up in the emotion of the moment, the 
concern of the moment about whether or not another attack was 
on the way, how we would save innocent lives from the horrors 
of what happened in Washington and in New York. And, luckily, I 
think wisdom prevailed in that we included in that PATRIOT Act 
sunset provisions saying that our actions at that time would 
not be permanent law, that we would come back and revisit them 
to decide whether they were still wise decisions at a later 
time. Your hearing sets the stage for that conversation, an 
important national dialogue.
    First, I think we need to try to establish some fundamental 
principles. The American people want Congress to strike a 
balance, to protect civil liberties but give the Government the 
power it needs to fight the war on terrorism. There are many 
communities in States across the Nation who have serious 
concerns about whether the PATRIOT Act struck that balance. I 
ask unanimous consent to enter into the record a list of the 
communities which have passed resolutions expressing concern 
about the PATRIOT Act.
    Chairman Specter. Without objection, they will be made a 
part of the record.
    Senator Durbin. Thank you.
    Second, as the independent bipartisan 9/11 Commission 
concluded, when the Government seeks to expand its power--and I 
think this is crucial. Senator Craig and I have thought about 
this and really make this kind of the linchpin of where we are 
coming from. When the Government seeks to expand its power, the 
burden of proof should be on the Government to demonstrate that 
that power is needed to combat terrorism. This means the 
Justice Department must provide Congress with information to 
assess how the PATRIOT Act is being used.
    You were kind enough to have a meeting in 407, a closed-
door meeting with some classified information about the use of 
the PATRIOT Act. It is unfortunate that we cannot share with 
the colleagues in this Committee as well as members of the 
public exactly what was said at that time. Some of the things 
would be said in defense of the PATRIOT Act, some maybe used in 
criticism of it. But that information is not forthcoming, so it 
is very difficult for us to make an honest, open, and objective 
assessment for the American people to be the final arbiter as 
to what is fair in terms of the future of the PATRIOT Act.
    Third, it is our constitutional duty as Senators to examine 
closely legislative proposals that expand Government power such 
as the PATRIOT Act. We should ensure that they are needed to 
fight terrorism, that they include adequate checks and 
balances, and they will not lead to civil liberties violations.
    I also ask unanimous consent at this time, Mr. Chairman, to 
enter into the record the statement of principles of the new 
caucus that Senator Craig and I have founded, the Bill of 
Rights Caucus.
    Chairman Specter. Without objection, it will be made part 
of the record.
    Senator Durbin. Several of our colleagues, including 
Senator Feingold from this Committee, have joined us in 
introducing the SAFE Act. It is narrowly tailored. It is a 
bipartisan bill.
    Mr. Chairman, if you came to the press conference where we 
announced the SAFE Act, you would have seen the most unusual 
gathering of political groups I have ever seen at any 
announcement: from the left, the American Civil Liberties 
Union; from the right, the American Conservative Union. Groups 
that were good-government groups, groups that, frankly, never 
come together came together behind the SAFE Act. It shows that 
if Senator Craig and I can sit at the table in agreement that 
there is some fundamental principle at stake here, and that 
principle is to protect our rights and liberties. We believe on 
the right and on the left that we should come together as we 
have sworn to uphold this Constitution.
    We do not want to end the PATRIOT Act. We want to amend the 
PATRIOT Act. We think reasonable changes in the PATRIOT Act 
will protect individual rights and liberties and also give the 
Government the tools it needs to make America safe.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Senator Durbin.
    Senator Feinstein?
    Senator Feinstein. Thanks very much, Mr. Chairman, and I 
want to thank my two colleagues. I think it is very interesting 
to hear your point of view.
    I have been, as I have said before, puzzled because 
initially I think there was a great deal of misunderstanding 
about the PATRIOT Act, and confusion. I think a lot of the 
comments were directed toward PATRIOT II, which never came to 
the Hill, and also to immigration law, referred to as the 
    To this day, I know of no abuse of the PATRIOT Act in 
virtually any given section. Can either of you provide an abuse 
of the PATRIOT Act?
    Senator Craig. Senator, I agree with your statement, and if 
you will remember my comments of a few moments ago, this is all 
about the future and making sure we put in place those 
safeguards that will never tolerate or allow abuse. But I 
cannot disagree with you. In my experience on this Committee 
and the hearings that I have attended, I have listened very 
closely because I am a critic in a limited and targeted way. I 
do not believe it has been misused to date, to my knowledge. 
But I do believe there are potentials built within it for 
misuse, and that is what we address.
    Senator Durbin. If I might respond?
    Senator Feinstein. Please.
    Senator Durbin. Senator Feinstein, I want to agree 
completely with what Senator Craig just said, especially the 
operative phrase ``to my knowledge,'' because we are in a 
position here where we cannot answer the most basic question, 
and it is this: In a Government of checks and balances, are you 
in Congress adequately supervising and monitoring the 
activities of the executive branch to make certain that there 
are no excesses? And the honest answer is we have not and we 
    Much of what is done under the PATRIOT Act is done in 
secrecy. The targets never know that they are being the subject 
of search and surveillance. In addition, there are gag orders 
that are put in place that really restrain everyone from 
disclosing what has occurred. You serve on the Intelligence 
Committee, as I did for 4 years. You know the cat-and-mouse 
game we play with those agencies trying to figure out exactly 
what is being done, hearing after weary hearing where little or 
nothing is said in an attempt to make sure that Members of 
Congress really do not know all the details and facts.
    We need to respect our institution and our responsibility 
when it comes to checks and balances. The PATRIOT Act is, 
frankly, a large donation of our authority and responsibility 
to the executive branch without adequate safeguards there to 
protect individual rights and liberties. I think that is what 
is dangerous.
    Senator Feinstein. Let me ask a couple of specific 
questions on 215, on the John Doe roving wiretaps, on 802, and 
on delayed notice. Let me begin with delayed notice.
    Despite some confusion, this section, while part of the 
PATRIOT Act, involves Title 18 and a much more traditional law 
enforcement technique. So-called sneak-and-peek warrants are an 
important law enforcement tool. My concern is that the catch-
all section, which allows issuance of such a warrant when it 
would jeopardize an investigation, is unnecessary and may 
invite abuse. I would appreciate your views on this.
    Senator Durbin. Senator Feinstein, the SAFE Act eliminates 
that Section 802.
    Senator Feinstein. Pardon me?
    Senator Durbin. The SAFE Act would eliminate that 802 
Section that you are concerned about.
    Senator Feinstein. Okay. Now, let me ask you about the 
definition of domestic terrorism. So it eliminates that as 
    Senator Durbin. I would say that it amends it. Currently, 
the definition of domestic terrorism could include civil 
disobedience by political organizations. While civil 
disobedience is and should be illegal by its nature, it is not 
necessarily terrorism. The SAFE Act would limit the qualifying 
offenses for domestic terrorism to those that constitute a 
Federal crime of terrorism instead of any Federal or State 
crime, as it is currently written. So we try to really bring it 
right back into the terrorism area, which was our focus in the 
PATRIOT Act, but not let it extend to any violation of Federal 
or State law, criminal law, which I think is a more expansive 
    Senator Feinstein. I think--
    Senator Craig. Senator, I would also add that you and I 
lived through an era in our country in which civil disobedience 
at times grew to violence, and it changed the character of 
Government for a time. And it also created law as a result of 
    At the same time, we have to continually safeguard the 
right of civil disobedience for the purpose of political 
expression, and there is a line you have to draw, and we think 
that we have clarified that for this purpose.
    Senator Feinstein. I think, Mr. Chairman, that one of the 
things we might do is take a look at the definition of domestic 
terrorism. Some people think it is too broad and that it should 
be specifically narrowed.
    Let me ask a question on 215, the so-called library 
provision. We have had testimony that the library provision has 
not been used with respect to libraries, but has been used with 
respect to the collection of financial records. What exactly 
does the SAFE Act do with respect to Section 215?
    Senator Durbin. Thank you. Senator Feinstein, this 
situation now under 215 allows what we think to be an overly 
broad and expansive search of records. Concerns have been 
expressed by librarians, but also by others, as to whether or 
not they would be forced to turn over records about many 
individuals, some of whom were not the target of suspicion, and 
thereby violate the privacy and disclose information that 
people did not believe would be readily disclosed except under 
criminal circumstances.
    And so what we do is to say the Government would be able to 
obtain an order if they could show facts indicating a reason to 
believe the tangible things sought relate to a suspected 
terrorist or spy. As is required for grand jury subpoenas, the 
SAFE Act would give the recipient of a FISA order the right to 
challenge the order, requiring a showing by the Government that 
a gag order is necessary, place a time limit on the gag order, 
which could be extended by the court, and give the recipient 
the right to challenge.
    So many times we heard the Department of Justice defending 
this provision, Section 215, saying that it was analogous to a 
grand jury subpoena. With the SAFE Act, Senator Craig and I 
draw the analogy tighter and say then let's live by that 
standard, if that is exactly as it should be, so that people 
know that they are the subject of such a search and that the 
Government specify that they are not going after everyone who 
checked a book out of the L.A. Public Library but, rather, 
specific people for whom they have identified some concern 
about the possibility of terrorism.
    Chairman Specter. Senator Feinstein, your time has expired.
    Senator Feinstein. Thank you very much.
    Chairman Specter. We have a very big second panel, six 
    Senator Kyl?
    Senator Kyl. Thank you, Mr. Chairman.
    On that last point, the recipient, that is to say, the 
library or the hotel or whoever is being asked to supply 
records, has a right to challenge that and require the court 
process for a subpoena. Is that not correct? Under the existing 
    Senator Durbin. No, that is not true.
    Senator Kyl. Why isn't it?
    Senator Durbin. They don't have the authority to challenge 
the order.
    Senator Kyl. They certainly do. It is a voluntary request 
for the records, and if they decide that they don't want to 
comply with it, they have a right to require--
    Senator Durbin. It is not a voluntary request, Senator. It 
is a court order. They are faced with producing the 
    Senator Kyl. They have a right to contest the court order, 
do they not?
    Senator Durbin. I do not believe they do.
    Senator Kyl. Okay. We have a disagreement on that.
    The people who are the subject of a search--
    Senator Craig. Jon? Senator?
    Senator Kyl. Let me just ask this question: The people that 
are the subject of a search are not necessarily known before 
the records are divulged, are they?
    Senator Craig. No.
    Senator Kyl. In other words, the point of the search is to 
find out who might have checked out a book on bomb-making. 
Isn't that correct?
    Senator Durbin. The point we are making is that by general 
principle, constitutional principle, the Government cannot say 
we are going to subpoena the records of everyone living in 
Yuma, Arizona, to find out what they have been reading, to see 
if among all those people we can find suspicion.
    We live in a world--
    Senator Kyl. Do you know of any case where anybody has 
suggested that?
    Senator Durbin. But, you see--
    Senator Kyl. That is a red herring. The point of the 
business records, is it not, is to try to discover who might 
have checked into this hotel for the last three nights or who 
might have checked out a book on bomb-making, that kind of 
thing. You don't know necessarily the subject of your inquiry 
before you make it, do you? Go ahead, Senator Durbin.
    Senator Durbin. The point I am getting to, Senator, is that 
if you want to depart from the basic body of law which has 
governed us, probable cause before the Government goes forward, 
that would, in fact, violate the privacy of an individual based 
on that probable cause, which has always been our standard, 
then you would oppose the SAFE Act.
    What we have said is you have to have some linkage here, 
and to argue that we don't know it has been violated is to 
state the obvious. Of course we don't. The Government is not 
forthcoming telling us how this is being used. We meet in 
closed session to talk about the possibilities of how it is 
being used. We do not have the tools to really decide whether 
there is an abuse. The checks and balances are not really--
    Senator Kyl. Let me ask you both this question: Do you 
believe that the same kind of authority then should be 
eliminated with respect to all of the other kinds of 
investigations that it already has been authorized for under 
our law, that terrorism is the only possible crime that should 
be eliminated from this--that terrorism should be the only 
crime for which this particular tool should not be available? 
Senator Craig?
    Senator Craig. No, I am not suggesting that, nor do I 
believe the authority exists today to walk into a library and 
sweep the records. It does now under this Act. And I don't 
think it is a red herring, Jon, at all to suggest that you 
might get a rogue agent, not necessarily a rogue agent, who did 
just that and, therefore, found everybody in Yuma, Arizona, who 
checked out bomb-making and began private and secret 
investigations of why they did it.
    Senator Kyl. Okay. May I just ask then, to follow up on 
Senator Feinstein's question, do either of you have an example 
in any other context--because there are no examples in the 
context of terrorism--where this general business records 
authority has been abused?
    Senator Durbin. I would just say in response to that, if 
you want to follow the basic standard of probable cause or 
grand jury subpoena where they can be contested, where there is 
disclosure, where someone can say this is too far-reaching, 
then I think there is a safeguard built into the system. Such a 
safeguard does not exist when it relates to the PATRIOT Act, 
and that is the point we--
    Senator Kyl. So there are no examples either outside the 
PATRIOT Act or within the PATRIOT Act that either of you can 
cite where there was an overly broad request under the business 
    Senator Craig. Jon, I believe that is totally the wrong 
premise. I don't believe you wait until somebody has been 
dramatically injured before you re-establish--
    Senator Kyl. Okay--
    Senator Craig. Now, wait a moment. I think it is 
tremendously important--
    Senator Kyl. My time is just aboutout.
    Senator Craig. That is true--
    Senator Kyl. I understand the point that you are making--
    Senator Craig. But what is important today is there is a 
perception across the land--
    Chairman Specter. Senator Kyl--
    Senator Kyl. I just wanted to conclude my point here. The 
point of the sunset was to provide a testing period to see 
whether it worked, to see whether there were problems. In this 
particular area, because there have been no problems, it seems 
to me that the assumption underlying the sunset provisions 
ought to then move forward, which is, there being no problems, 
the Act should be reauthorized.
    Senator Durbin. Mr. Chairman, may I say a word?
    Chairman Specter. Yes.
    Senator Durbin. This is cloaked in secrecy, and because of 
secrecy we cannot exercise the oversight we need to protect 
individual rights and liberties. And to suggest that because we 
cannot come forward and give you specific examples is to state 
the obvious. It is designed so that no one can come forward and 
give you these examples.
    Senator Kyl. May I just--I have to follow up on that. Isn't 
it true that in testimony before this Committee the Attorney 
General and other Federal law enforcement officials have 
testified that this particular provision as to libraries has 
never been used? So it is not secret. They have actually 
testified to that. And isn't it also true that under the 
PATRIOT Act we are required--that the Department of Justice is 
required to submit a report to Congress so that it is not 
cloaked in secrecy and we do know whether or not there has been 
an abuse?
    Senator Durbin. There has been a statement that it has not 
been used as to libraries, that is true. But it has been used 
some 35 other times.
    Senator Kyl. And we are aware of that, so it is not cloaked 
in secrecy, is my point.
    Senator Durbin. I would say to the Senator, we are aware of 
it in the most general terms. But notwithstanding the 
reputation and integrity of any Attorney General, we have 
usually said in Congress we are a separate, coequal branch 
which has the power and responsibility of oversight. We are 
giving that up when we do not have the information to really 
form an opinion and to hold the Government accountable.
    Chairman Specter. Thank you very much, Senator Kyl.
    Senator Feingold?
    Senator Feingold. Thank you, Mr. Chairman. I have a short 
statement that I would like to ask to be placed in the record.
    Chairman Specter. Without objection, it will be made a part 
of the record.
    Senator Feingold. And I just want to say how pleased I am 
to be joining Senator Craig and Senator Durbin in forming the 
Bill of Rights Caucus to work to ensure that civil liberties 
are adequately protected in legislation like the PATRIOT Act.
    Mr. Chairman, these two Senators and you, the Chairman, and 
the Ranking Member are just doing a tremendous service not only 
to the Committee and the Senate, but to the whole process of 
fighting terrorism by having these hearings. The conversations 
that are starting to occur around this table to me are exactly 
what is needed. And I would say to my colleague from Arizona, 
because he is such a hard-working and always prepared Senator, 
I hope you will let this process play out.
    For example, on these things that just came up today, you 
know, I cannot prove all kinds of abuses any more than I think 
you can prove there haven't been any abuses. But that is not 
our task. As Senator Craig indicated, our responsibility now is 
to make sure that we fix this thing where it needs to be fixed, 
to make sure that future abuses don't occur, whether or not 
abuses have already occurred. And, you know, I see progress, 
for example, in the sneak-and-peek provisions, delayed 
notification--which was one of the reasons I originally opposed 
the bill.
    Senator Feinstein for 2 years has indicated she has not 
heard or seen of any abuses of the bill. But she now sees, 
because she also always makes sure she studies things very 
carefully, that there is a catch-all provision that is too 
broad and cannot be justified in terms of the legitimate needs 
of sneak-and peek provisions.
    So it is not a question of do we lay down the hammer and 
say nothing bad has happened and, therefore, we should just 
renew it? Or there have been all kinds of abuses and the 
question is: Is this particular catch-all exception justified? 
And I think it is becoming clear it is not. So it shouldn't be 
a victory for either side if we get rid of that provision. It 
is just fixing the bill.
    The same thing goes for the library provision, Section 15. 
This has been an around-and-around thing. Yes, apparently 
Section 15 has not been used to command library records because 
many times library records have been obtained from librarians 
who have simply voluntarily given them. But the fact is library 
records have been obtained. That testimony was given under oath 
before this Committee. It is also perfectly possible that 
Internet records in the library were obtained under the 
national security letter provision. So it is not accurate to 
state that no library records have been obtained.
    And the point that Senator Durbin was making I want to 
clarify here is if there is an ability to challenge under 215, 
I cannot find it. And the Senator from Arizona almost seemed to 
be saying that it would surprise him if there wasn't such a 
protection. So why don't we simply work together to make sure 
that there is an ability to challenge, a legitimate ability to 
challenge, and forget about who was right or wrong in the first 
place about it.
    So I would simply urge--that is the kind of good-faith 
process I want to enter into here. I am not recommending 
repealing a single provision of the USA PATRIOT Act nor do I 
think the leaders here are. We simply want to put the 
protections that are needed.
    So, Mr. Chairman, thanks for the opportunity to make those 
    Chairman Specter. Thank you, Senator Feingold.
    Senator Biden?
    Senator Biden. I have no questions for the witnesses. I 
will have questions for the record, but I do not want to tie 
them up.
    Chairman Specter. Thank you very much.
    Senator Durbin, you had made a comment that the information 
in the closed session is not available to the public generally. 
Of course, it is available to you as a member of the Committee, 
and if other Senators wanted to have access to what went on in 
closed session, it would be my inclination to make that 
available to members. And when we Act on legislation and file 
al report, it would be my intention to give as full a picture 
publicly as we can at that time to what we know. If there are 
sources or methods or there is confidential information, we 
would respect that. But we would intend to do what we could to 
put that on the record. And we intend to proceed on these 
oversight hearings.
    We thank you for the compliments, Senator Craig, about the 
Ruby Ridge hearings. You were an ad hoc member of that 
Committee. You were not on the Committee, but when you showed a 
real interest in it, I was the Subcommittee Chairman and 
invited you to attend. And as Senator Leahy has noted, that 
resulted in the change of the FBI rule on the use of deadly 
force, and Randy Weaver said that had he known he would have 
been treated so fairly by the United States Senate, he would 
have come down off the mountain. That is an oversight hearing 
10 years old that has been repeatedly cited, practically solely 
cited as the oversight process, but this Committee intends to 
do a great deal more of that.
    We thank you for coming.
    Senator Leahy. Could I just make one note, Mr. Chairman? We 
talk about--and as I said, there are many parts of the PATRIOT 
Act I like. I helped write or did write several parts of it and 
with others in a cooperative effort. But before we think this 
is the only thing we have for our security or the ability to 
get terrorist information, whether it is in what somebody's 
records have been in a library or anywhere else, we have always 
had the ability to have a grand jury subpoena. We have always 
been able to do that irrespective of whether the PATRIOT Act 
was there or not. And I think I just don't want--even though 
there are parts of this Act I support and parts of it that 
bring us into the digital age, for example, the modern age of 
law enforcement, let us not think that somehow the United 
States prior to the PATRIOT Act was undefended. I think it was 
far--I mean, it sort of overlooks the fact that we had hundreds 
of hours of tapes, for example, of people talking about 
terrorist acts that the FBI hadn't gotten around to translating 
prior to September 11th. We had a whole lot of other things we 
had available to us that we had gotten through the appropriate 
methods; we just had not connected the dots.
    Chairman Specter. Thank you very much, Senator Leahy.
    The exchange I think has been very fruitful. If we had this 
kind of floor debate as the exchange between Senator Kyl on one 
side and Senator Craig and Senator Durbin on the other, we 
might get farther in our floor debate. So at least we have the 
Committee hearings.
    Before calling the second panel, Senator Biden, would you 
care to take 5 minutes for an opening statement?

                       STATE OF DELAWARE

    Senator Biden. Yes, I will take a few minutes if I may, Mr. 
Chairman. As usual, thank you for holding this hearing.
    Let me begin by suggesting that from my perspective, Mr. 
Chairman, as we approach this fourth anniversary of September 
the 11th, it is important we do everything in our power to 
identify and dismantle terrorist groups, but also find out what 
works and doesn't work and how well it works and doesn't work. 
And let me raise three quick points, if I may.
    First, I believe the PATRIOT Act was a reasonable and 
necessary response to the terrorist attacks of 9/11. As I said 
before, no matter who was President, no matter who was in the 
Congress, there would have been mistakes made. There would have 
been things, looking back on it, we should do differently, and 
that is the context we should be looking at this.
    I believe that when we passed this bill, it made sense. As 
a matter of fact, as far back as 1995 and 1996, I proposed 
similar provisions relating to the Oklahoma bombing case, that 
we should change the law similarly.
    It simply did not make sense to me and it still does not 
make sense to me that law enforcement has certain tools that we 
can use against organized crime and drug gangs, but tools are 
not available to deal with terrorist organizations. And I said 
at the time what is good for the mob ought to be good for 
terrorists. Thus, I supported the PATRIOT Act because I think 
it meant moving toward a more level playing field involving 
terrorism with those garden-variety cases like drug and 
organized crime. And I also strongly supported its 
    But, secondly, I am aware that there are significant 
criticisms of the Act in recent years, and as I have said 
before, I believe much of the criticism is both misinformed and 
overblown. But that is not to say the critics aren't raising 
very legitimate concerns about how the administration has 
handled the war on terror.
    I have been incredibly concerned with the decisions the 
administration has made involving the treatment of so-called 
enemy combatants, its decision to withdraw or withhold the 
application of the Geneva Convention to the hostilities in 
Afghanistan and the Justice Department's role in crafting what 
I believe to be misguided rules of interrogation. And I fear 
that these decisions make it more difficult to fight terror 
while placing our men and women on the ground in more jeopardy 
than they would otherwise have been.
    I mention this because our ability to reauthorize the 
PATRIOT Act may be and is going to be made more difficult 
because of these misguided decisions, in my view, that the 
administration has made in other areas in the war on terror. 
And sometimes their actions there I find, as I am home and 
around the country, are confused with changes in Title 18, 
which they are not.
    The third and final point that I would like to make, Mr. 
Chairman, is that we need to carefully consider whether we can 
improve the PATRIOT Act. I am open to considering whether we 
need to redefine or eliminate parts of the Act. I have been a 
Senator a long time, and like many of us here, I have been 
involved in every major piece of criminal and terrorist 
legislation in the past three decades. And I have even 
cosponsored or written some of them. But every time we pass one 
of these laws, whether it was the Crime Control Act of 1994 or 
less significant pieces of legislation, I have said at the time 
I have urged their passage that we should go back and take a 
look at them a year or two later and find out whether or not 
what we passed has trenched upon anyone's civil liberties or, 
conversely, whether there are ways we can make it stronger to 
be able to deal with crime and terror. And so I think this is a 
logical process. We should be going back and thoroughly looking 
at what we did.
    Today's hearing, in my view, is part of that process, and I 
think we have to ask a number of tough questions, not just 
about the 16 provisions which sunset at the end of this year, 
but the entire Act. And so I think we have to look at Section 
215. Should we redefine it? Obviously, you all know 215 
addresses the access to business records in terrorism 
investigations. Should it be redefined to make it clear that 
the same relevant standards which govern grand jury subpoenas 
also apply to these cases? I think maybe we should.
    Section 206, which addresses roving wiretaps, should we 
make it absolutely clear that the Government cannot get a John 
Doe wiretap against an unknown person?
    Section 213, which addresses sneak-and-peek search 
warrants, should that include reasonable future notification 
requirements to the target as we have long done with wiretap 
investigations against the mob and drug gangs?
    So, in conclusion, Mr. Chairman, I believe these are just a 
few of the reasonable questions we need to ask and the 
potential tweaks and refinements to improve the credibility of 
the law without weakening the ability of the FBI or others to 
fight terrorism. So I am looking forward to the hearing, Mr. 
Chairman, and I thank you for calling it.
    Chairman Specter. Thank you very much, Senator Biden.
    While we have a number of Senators here, we have an 
agreement by Senator Leahy and myself to have a markup tomorrow 
on the asbestos bill, which will be in addition to our 
executive session on Thursday. We very much would appreciate 
attendance so that we could have a quorum and move ahead on 
that important bill. There are quite a number of amendments 
pending, and we are seeking to make modifications to 
accommodate members to the extent we can. So that will be held 
tomorrow morning at 9:30.
    Chairman Specter. I want to call the second panel now: 
Former Congressman Bob Barr, Professor David Cole, Daniel 
Collins, James Dempsey, Andrew McCarthy, and Suzanne Spaulding. 
This distinguished panel has been called in alphabetical order. 
It is always hard to establish priorities among people with 
such outstanding records.
    Our first witness is former Congressman Bob Barr, who 
represented the 7th District of Georgia in the U.S. House from 
1995 to 2003. He has been engaged in many efforts on civil 
liberties, a member of the Long-Term Strategy Project for 
Preserving Security and Democratic Norms in the War on 
Terrorism at the Kennedy School of Government at Harvard. He 
had been United States Attorney for the Northern District of 
Georgia and also served as an official with the CIA from 1971 
to 1978.
    Nice to have you on Capitol Hill, Congressman Barr. The 
floor is yours for 5 minutes.


    Mr. Barr. Thank you very much, Mr. Chairman. I appreciate 
yourself and the Ranking Member and the other members of this 
Committee, both those that are currently here and those that 
were here earlier at the beginning. And I know, as we always 
faced in the House, there are competing demands and floor 
action and people come and go from the Committee. But I also 
know that particularly members of this Committee, whether they 
are present for an entire hearing or not, pay very, very close 
attention to the materials that are submitted, the testimony 
that is rendered, and the issues involved. That has always been 
the hallmark of this Committee, and I appreciate the honor of 
being invited to play a small role in its deliberations on the 
USA PATRIOT Act today and in the weeks and months ahead.
    I have listened to the testimony of the first panel, the 
two distinguished Senators, and the comments, questions, and 
dialogue by members of this Committee, and I think that the 
witnesses presented very, very eloquently the position that I 
endorse in terms of the need to pay very close attention to the 
USA PATRIOT Act, to conduct the oversight that is implicit in 
the provision of the sunset clauses in the legislation, to look 
very carefully at the ways in which the Act and its provisions 
have been used over the ensuing three and a half years or so 
since its enactment, and to look at possible problems. And, of 
course, one of the things that this Committee does look at is 
not simply bald acts of abuse with Federal legislation. We all 
know that abuse can be very insidious. It can be systematic. It 
can be very subtle. It may not even occur in order for this 
Committee to deem it necessary to take a look at powers granted 
to the Federal Government and say we think that these ought to 
be amended.
    And that of course is explicitly why the Congress, in its 
wisdom, enacted as parts of the USA PATRIOT Act in 2001 the 
sunset provisions.
    I do think that when one looks, particularly as a 
distinguished member of this Committee--and I had the honor of 
serving in its counterpart over on the House side for 8 years--
I do think that from one's background, in my case in particular 
as both a United States Attorney for the Northern District of 
Georgia as well as having spent several years with the CIA and 
bringing a fairly comprehensive background to this debate, 
including my service in the House, I can say that I believe 
that in large measure, the PATRIOT Act, as Senators Craig and 
Durbin, as proponents and advocates and co-sponsors of the SAFE 
Act have indicated, has served this country well. But that is 
not to say that it is a perfect piece of legislation, an even 
if in fact the amendments proposed to the USA PATRIOT Act by 
the SAFE Act were enacted, I dare say probably it still would 
not be a perfect piece of legislation. It is constantly going 
to be, as it ought to be in our system of Government, a work in 
    But I do think, Mr. Chairman, that the proposals contained 
in the SAFE Act are reasonable, they are modest. In my view 
again, as a former U.S. Attorney, as a former official with the 
CIA, do not remove in any way, shape or form, important powers 
that the Government needs to fight serious acts of criminal 
activity, including acts of terrorism. The amendments proposed, 
for example, to the so-called sneak-and-peak powers contained 
in section 213 of the PATRIOT Act clearly recognize that this 
is a power that the Federal Government needs from time to time, 
but it ensures that that need remains the exception and not the 
rule, and it clearly contemplates that there will be 
circumstances, should be circumstances under which the Federal 
Government can use the extraordinary remedy or take the 
extraordinary step of conducting a search of a person's home or 
business without providing contemporaneous notice, when to do 
otherwise would seriously endanger national security.
    That is the theme, Mr. Chairman, that underlies all of the 
various changes proposed in that modest piece of legislation 
called the SAFE Act. I commend those members of this body and 
their counterparts in the House who have already endorsed this 
legislation. I commend it as one of the pieces of legislation 
or one of the vehicles that the Committee might carefully 
scrutinize in its efforts to ensure that we always maintain 
that proper balance between the Bill of Rights and the need to 
fight acts ofterrorism and other serious criminal activity.
    I have submitted and would ask that my entire written 
comments be included in the record, and I stand ready to 
provide any additional written materials or answer any 
questions that the Committee or its distinguished members might 
    [The prepared statement of Mr. Barr appears as a submission 
for the record.]
    Chairman Specter. Thank you very much, Congressman Barr, 
and your full statement will be made a part of the record, as 
will all statements be made a part of the record.
    We turn now to our second witness who is Professor David 
Cole, Professor of Law at Georgetown University, had been staff 
attorney for the Center for Constitutional Rights, and had 
served as a law clerk to a very distinguished Federal Judge, 
Arlen Adams, who happens to be a Philadelphian.
    Welcome, Professor Cole, and we look forward to your 


    Mr. Cole. Thank you, Chairman Specter, Senator Leahy, 
members of the Committee, for inviting me here to testify.
    I want to make two points in my oral testimony. The first 
is that an inquiry into the PATRIOT Act ought to be the 
beginning, not the end, of congressional oversight of the 
executives carrying out the war on terrorism and particularly 
of the civil liberties abuses that have occurred therein.
    The second point I want to make is that the worst 
provisions of the PATRIOT Act are by and large not those 
sunsetted, but other provisions that are not subject to sunset, 
but nonetheless deserve your attention, namely the immigration 
provisions and the material support provisions.
    So first with respect to the first point, that this should 
be the beginning, not the end. Defenders of the PATRIOT Act 
often complain that the PATRIOT Act gets criticized for more 
than it deserves, and I think there is some truth to that 
because many of the worst abuses of civil liberties that have 
been carried out by the Bush administration in the war on 
terror have been carried out outside the PATRIOT Act. A 
national campaign of ethnic profiling and a mass roundup of 
foreign nationals carried out outside of the PATRIOT Act, 
80,000 people called in for special registration simply because 
they came from Arab and Muslim countries, 8,000 sought out for 
FBI interviews simply because they came from Arab and Muslim 
countries, 5,000 by the Government's count detained in 
preventive detention measures, almost all of them Arab and 
Muslim. And of these people not one today stands convicted of a 
terrorist crime. Zero for 5,000, zero for 8,000, zero for 
80,000. But that is not with respect to the PATRIOT Act.
    The Enemy Combatant Authority, the Attorney General 
regulations that allow the FBI to spy on religious services 
without any suspicion of criminal activity, data mining 
developments, and of course torture. All of these are serious 
concerns that arise outside of the PATRIOT Act. That does not 
mean however that you should take the PATRIOT Act any less 
seriously. It simply means that you should take the other abuse 
equally seriously.
    The courts,to my mind, have played a very important role I 
checking the administration. They have ruled against the 
administration on the enemy combatants, on military tribunals, 
on the PATRIOT Act itself, on closed immigration hearings, on 
the refusal to divulge documents regarding the torture scandal. 
I think Congress also has a responsibility to check the 
    The second point I want to make is that the worst 
provisions of the PATRIOT Act are not those subject to sunset. 
The immigration provisions allow for deportation of individuals 
for wholly innocent association with any group that we have 
designated as a bad group, regardless of the individuals' 
conduct in connection therewith. They allow for the exclusion 
of foreign nationals based on pure speech, pure speech. No 
conduct, no concern about threats, pure speech. They allow the 
Attorney General to detain foreign nationals without charges, 
and without showing that there is any basis for their needing 
to be detained.
    The Civil Liberties Restoration Act has been introduced to 
try to respond to some of these abuses and the other 
immigration abuses that I laid out earlier, but it has not even 
gotten a hearing. And instead what is Congress doing? It is 
about to pass, very likely today, maybe tomorrow, the Iraq 
Supplemental Bill in which there is a provision which 
dramatically expands the scope of the immigration terrorism 
grounds to essentially resurrect the McCarran-Walter Act. Under 
this law you will be deportable if you had any association at 
any time in your life with any organization that ever used to 
threatened to use a weapon period. There is no defense to show 
that you had did not take part in the violence. You are 
deportable even if your father engaged in that, was a member of 
such a group.
    So Nelson Mandela's child, if he has a child, would be 
deportable from this country. People who supported the Israeli 
military, the Palestinian Authority, the African national 
Congress, all deportable regardless of whether their support 
actually furthered any illegal activity.
    That radical expansion is being carried out without any 
consideration by this Committee, without any open debate. It 
was put in by Senate conferees in conference.
    So if anything, the abuses that we have seen since 9/11 in 
the immigration area should call for more oversight and more 
limitations on congressional power. Instead what Congress is 
about to do is to give the administration essentially a blank 
    I only have a few more moments I will leave for questions. 
The other two aspects I think raise very serious concerns 
outside of the sunsetting provisions, and those are the 
criminalization of pure speech in the Material Support Statute, 
which has been struck down in a case that I am handling, and 
the authority to freeze assets of any entity in the United 
States without showing that they engaged in any violation, and 
then to defend that action using secret evidence in court 
denying the entity any chance to defend itself.
    Thank you very much.
    [The prepared statement of Mr. Cole appears as a submission 
for the record.]
    Chairman Specter. Thank you, Professor Cole.
    Our next witness is Daniel Collins, Partner in the Los 
Angeles Office of Munger, Tolles and Olsen. He had served from 
June of 2001 to September of 2003 as Associate Deputy Attorney 
General, and had been the Department's Chief Privacy Officer. A 
graduate of Harvard College and Stanford Law School, he clerked 
for Circuit Judge Nelson and Supreme Court Justice Scalia.
    Thank you very much for joining us, Mr. Collins, and we 
look forward to your testimony.

                    LOS ANGELES, CALIFORNIA

    Mr. Collins. Thank you, Chairman Specter. Good morning 
Senator Leahy and distinguished members of the Committee. I am 
grateful for the opportunity to testify here today on this 
important subject.
    Three-and-a-half years ago the USA PATRIOT Act was signed 
into law with overwhelming support in both houses. That strong 
bipartisan consensus reflected the gravity and importance of 
the chief objective of that legislation, which was set forth 
right in the title, ``Providing appropriate tools required to 
intercept and obstruct terrorism.''
    As the Committee is well aware, some 16 provisions of Title 
II of that Act are scheduled to expire at the end of this year 
absent action by the Congress. In my view, these 16 provisions 
should be made permanent because today, as in 2001, they remain 
appropriate tools in the war on terror. I have addressed each 
of those 16 statements as well as Section 213, which is not 
subject to sunset, in my written statement, and I will focus in 
my oral remarks on three of them, Section 206, 215 and on 
Section 213.
    With respect to Section 206, which deals with the issue of 
roving wiretaps, the change that is actually made by the 
PATRIOT Act itself is quite modest, and I think when you 
compare it to the regime of Title III, you will see that there 
is a critical difference that I think renders unnecessary the 
changes that would be made by the SAFE Act to the FISA roving 
wiretap authority. Under the current version of Section 
105(c)(1)(B) of FISA, a FISA order authorizing electronic 
surveillance only needs to specify the nature and location of 
each such facility or place ``if known.'' That critical phrase 
was not added by the PATRIOT Act, but by the Intelligence 
Authorization Act for Fiscal Year 2002, and that amendment is 
therefore not subject to a sunset.
    The provision that the PATRIOT Act added was a requirement 
that you do not necessarily have to specify, if not known in 
advance, the actual wire service provider. Rather you could 
have an order that whatever service provider became relevant 
would have to provide the assistance that is required.
    Moreover, both the PATRIOT Act and the change that was made 
by the Intelligence Authorization Act leave in place the 
provision of Section 105(a)(3)(B) of FISA, which continues 
unambiguously to state that an authorizing order may only be 
issued if, inter alia, there is probable cause to believe that 
each of the facilities or places at which the electronic 
surveillance is directed is being used or is about to be used 
by a foreign power or an agent of a foreign power. What that 
means is that even when it cannot be specified in advance what 
particular facilities and places will be surveilled, the 
Government under FISA must nonetheless provide a sufficient 
description of the categories of facilities and places that 
will be surveilled, presumably by describing their connection 
to the target, so as to permit the court to make that probable 
cause determination.
    There is an analogous requirement to the one I just 
described in FISA in Title III, but Title III's roving wiretap 
provision waives that requirement. FISA does not. That critical 
difference provides an additional safeguard in FISA that I 
think has been overlooked in the analogy that the SAFE Act 
appears to attempt to draw between Title III and FISA, and I 
think renders the balance that is already struck by the PATRIOT 
Act on this subject a different one from Title III, but 
nonetheless an adequate one.
    With respect to Section 215, this is, as many have noted, 
an effort to provide on the counterintelligence side an analog 
to the ability to get business records on the criminal side 
through the use of grand jury subpoenas. There has been an 
acknowledgement by the administration, the Attorney General in 
his recent testimony, that this provision could benefit from 
some clarifications. We have already seen in the discussion 
this morning a dispute over whether or not a court challenge to 
an order by a recipient of such an order is authorized. That 
could be clarified. That is a subject that is addressed in the 
SAFE Act. I think that the SAFE Act though in specifying that 
raises a number of issues that I think need careful study.
    For example, the SAFE Act would impose an automatic stay on 
compliance with the order pending the challenge, and automatic 
stays are not typical in many contexts. It is not clear that 
that should be the case here. Also the analogy to the use of 
CIPA in the civil context is something that I think needs very 
careful study.
    [The prepared statement of Mr. Collins appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Mr. Collins.
    Our next witness is Mr. James Dempsey, Executive Director 
for the Center for Democracy & Technology. He is currently 
engaged in subject matters of privacy and electronic 
surveillance issues, and heads CDT's International Project. He 
had been Deputy Director for the Center for national Security 
and had been Assistant Counsel for the House Judiciary 
Subcommittee on Civil and Constitutional Rights.
    Thank you for joining us, Mr. Dempsey, and we look forward 
to your testimony.


    Mr. Dempsey. Good morning, Mr. Chairman, members of the 
Committee. Thank you for the opportunity to testify today. From 
this kind of detailed and objective inquiry and dialogue we can 
attain the balance that was left aside in the pressure and 
emotion of the weeks immediately after 9/11.
    In CDT's view, Mr. Chairman, there are few if any 
provisions in the PATRIOT Act that should sunset. The question 
before us is what checks and balances should apply to those 
powers. In our view, every provision of the PATRIOT Act that is 
of concern can be fixed, preserving the investigative tool, but 
subjecting it to appropriate standards and judicial and 
legislative oversight.
    In order to understand what is right and what is wrong with 
the PATRIOT Act, consider the key protections traditionally 
surrounding Government access to information under the Fourth 
    First, as a general rule, searches and seizures and access 
to private data should be subject to prior judicial approval 
based on some factual predicate. Second, a warrant or subpoena 
must describe with particularity the items to be seized or 
disclosed. Third, individuals should have notice when the 
Government acquires their personal information, either before, 
during or after the search. And finally, if the Government 
overreaches or acts in bad faith, there should be consequences, 
including making sure the Government does not use the 
information improperly seized.
    These components of a Fourth Amendment search--judicial 
approval, particularity, notice and consequences for bad 
behavior--are independent. When it is necessary to create an 
exception to one, that does not justify a blanket exception to 
all four. However, too often in the PATRIOT Act, when the 
Government had a good argument for dispensing with one or 
another of these protections, it insisted that Congress 
eliminate all of them, leaving many of the powers in the 
PATRIOT Act with none of the traditional checks and balances.
    The issue has been raised time and again about abuses--and 
I wish Senator Feinstein were here because I would like to 
gently correct Senator Craig and Senator Durbin. I think there 
is evidence of abuses now, despite the secrecy surrounding the 
    Section 215, sneak-and-peek: the FBI has used that to break 
into a judge's chambers secretly in a judicial corruption case, 
to break into an office in a Medicare fraud investigation. Now, 
these are permitted within the terms of the legislation, but I 
think those are abuses. I think those are not the kind of 
violent crime or terrorist crime for which a secret search is 
appropriate. The Justice Department has admitted that in one 
case the search was delayed for 406 days. I think that is an 
abuse, a delayed notice for 406 days under the PATRIOT Act.
    Section 805, material support: The Government charged with 
material support a person who was posting on his website 
material that it turned out was also posted on the website or 
linked to from the website of one of the prosecution's 
witnesses. That came out in trial. The jury acquitted that 
person after he had spent a year and a half in jail. I think 
that is an abuse.
    The national Security Letter provision has been declared 
unconstitutional by a Federal District Court Judge. I do not 
know if you would call that an abuse or not, but a provision of 
the PATRIOT Act has been declared unconstitutional.
    The Mayfield case offers an interesting window. That was a 
criminal case, and yet they used a sneak-and-peek secret search 
under FISA, with no notice. Ultimately, the case blew up in the 
Government's face partly because the Spaniards kept saying, 
``You got the wrong guy.'' If the Spaniards had not been saying 
``He's the wrong guy,'' it is very possible that Mayfield would 
have gone to trial based upon the testimony of an FBI 
fingerprint expert.
    Now, one of the Justice Department's central arguments is 
that the PATRIOT Act standard of mere relevance under the FISA 
pen register provision, Section 215, and the national Security 
Letters, is just like the standard for grand jury subpoenas in 
criminal cases. This argument overlooks the fundamental 
differences between criminal investigations and intelligence 
investigations. If the Government wanted to use grand jury 
subpoenas against terrorists, they could since terrorism is a 
crime. But intelligence investigations have additional powers 
and features which need countervailing protections. They are 
much broader. They are not cabined by the criminal code. They 
can collect information of First Amendment activities. They can 
even be based on First Amendment activities in part against 
U.S. citizens. They are secret.
    In the criminal context, the trial is the big show. And as 
you know, Mr. Chairman, the prosecutor's whole conduct is put 
under scrutiny there. None of that happens in the intelligence 
case, unless there is a trial. Therefore we need countervailing 
protections to account for that.
    Mr. Chairman, I will be happy to work with you and members 
of the Committee on the SAFE Act. As Senator Biden referred to, 
how can we fix this legislation? Of course, mistakes were made. 
It is inevitable. Let us go back and look at it and put some of 
these checks and balances back in.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Dempsey appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Mr. Dempsey.
    Our next witness is Mr. Andrew McCarthy, Senior Fellow at 
the Foundation for the Defense of Democracies here in 
Washington. Had been a Federal prosecutor in the U.S. 
Attorney's Office for the Southern District of New York, where 
he had some notable convictions leading to prosecution against 
the terror organization of Sheik Omar Abdel Rahman, who was 
convicted of conducting a war or urban terror in the United 
States, and also led the litigation over crucial confession 
evidence which helped secure convictions in the bombings of the 
American embassies in Kenya and Tanzania. A prolific writer on 
a wide variety of subjects.
    We thank you for coming in today, Mr. McCarthy, and the 
floor is yours.


    Mr. McCarthy. Thank you, Mr. Chairman, and members of the 
    Senator Specter, you mentioned my background in terrorism 
cases, and I think to the extent I have anything relevant to 
say to the Committee today it is from those trenches, the front 
lines where the war on terrorism is actually fought, and it is 
from the perspective of those trenches that I thank this 
Committee and the entire Congress for its tradition of strong 
bipartisan support in ensuring that our law enforcement and our 
counterterrorism officials at the FBI and the Justice 
Department have the tools that they need to protect our 
national security.
    It was that tradition that impelled members of both houses 
of Congress and both parties to enact the USA PATRIOT Act by 
overwhelming margins. It was a good potential idea back then.
    Nearly four years later, with no attacks on our homeland 
since 9/11, even though we know our enemies are desperately 
trying to attack us, I think we can say confidently that it is 
now a good proven idea.
    It has been a crucial ingredient in the American people's 
inoculation from the perilous disease that is terrorism and it 
remains good, relatively pain-free protection that we badly 
need. Just as we do not eliminate or water down vaccines when 
we are fortunate enough to go three or four years without a 
major outbreak of disease, it would be unwise and I think 
dangerous to eliminate or water down the major protections of 
the PATRIOT Act, and I am relieved and happy the see that for 
the most part the consensus seems to be that almost all of the 
PATRIOT Act, but for a few finite areas of disagreement, should 
be preserved and will be preserved.
    If I may, I would like to try to make two points this 
morning. The first concerns reasonableness. The demands of 
national security are undoubtedly intentioned with our 
freedoms. The tension is not always the same, it ebbs and 
flows. If you believe as I do that we are in a real war that 
presents real threats from murderers who play by no rules, the 
tension is raised. It calls for tolerable curbs on our 
liberties and tolerable intrusions on our privacy. If you 
believe that the threat is overstated or being used 
pretextually to advance other agendas, then there is a natural 
inclination to emphasize our freedoms and our privacy, and I 
think many of my thoughtful colleagues have done just that.
    The genius of our system is that even if we never reach 
consensus on those things--and I doubt that we ever will--we 
are guided by a rule of reason. The Fourth Amendment asks one 
core question: is Government acting reasonably? It venerates 
privacy but it implicitly acknowledges that Government's 
highest burden and highest responsibility is to protect our 
collective security. It rejects rigid prior restraints on 
either Government action or freedom. It says do what is 
    The PATRIOT Act is reasonable. It strikes a proper balance 
between the demands of public safety and private freedom. If it 
were unreasonable, you would have a record to show that, and 
after four years, you do not.
    I would submit that it is not reasonable to water down or 
eliminate provisions on the basis of hypothetical fears, and 
that is the major part of the debate that we have had over the 
PATRIOT Act, most of the challenges have been hypothetical.
    With the few remaining moments I have, the other thing I 
would like to stress this morning briefly is to urge this 
Committee to reject the premise that is at the heart of many of 
the reform proposals, which is that honorable people will 
behave dishonorably. The people on the front lines are not 
perfect by any stretch, they are in a pressure-packed job to 
protect us, they are forced to make hard judgment calls, and 
inevitably mistakes get made. I know. I made my fair share.
    But they are honorable. They are Americans who believe in 
civil rights. They take an oath to uphold the Constitution. 
They do not have a voyeuristic interest in spying on the 
private affairs of their fellow Americans. What is more, as a 
practical matter, they would not have the time even if they did 
have the inclination.
    As all of the investigations of intelligence failure 
demonstrate, they have enough of a challenge reading and 
digesting those things that we desperately want them to read 
and digest. The notion that they are Big Brother seeking to 
monitor our every move is not reality. Again, it is not 
    The best way to handle errors or over reaching, and those 
are inevitable, is oversight by this Committee and others. It 
is not to erect barricades against effective and necessary 
intelligence collection.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. McCarthy appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Mr. McCarthy.
    Our final witness--it is arranged alphabetically--is Ms. 
Suzanne Spaulding, who has an extraordinary record, now 
Managing Director of the Harbour Group. She served as Executive 
Director of two congressionally mandated committees, the 
national Commission on Terrorism and the Commission to Assess 
the Organization of Federal Government to Combat the Threat of 
Weapons of Mass Destruction, where former CIA Director John 
Deutch, chaired it and I served as the Vice Chairman. And she 
worked as Deputy Staff Director and General Counsel for the 
Senate Select Committee on Intelligence, and she also worked as 
Assistant General Counsel for the CIA. Quite a portfolio with 
one exception, where she was my Legislative Director and Senior 
Counsel, I believe, at the start of her now illustrious career.
    Ms. Spaulding, thank you for joining us.


    Ms. Spaulding. Thank you, Mr. Chairman, Senator Leahy, 
members of the Committee. I appreciate this opportunity to 
participate in today's hearing on the USA PATRIOT Act and the 
legal framework for combating international terrorism.
    Let me begin by emphasizing that I have spent over 20 years 
working on efforts to combat terrorism, starting in 1984 when I 
had the privilege to serve as Senior Counsel to then Committee 
member and now Committee Chairman, Senator Arlen Specter, who, 
as many of you know, in 1986 introduced and guided to passage 
the first law to grant extraterritorial jurisdiction over 
terrorist attacks against Americans abroad.
    Over the succeeding two decades, in my work at the Central 
Intelligence Agency, at both Senate and House intelligence 
oversight committees, and with the two independent commissions 
on terrorism and weapons of mass destruction, I have seen how 
the terrorist threat has changed from one aptly described in 
the mid 1980s by Brian Jenkins' remark that ``terrorists want a 
lot of people watching, not a lot of people dead,'' to one that 
is now more aptly characterized by former DCI Jim Woolsey's 
observation that ``the terrorists of today don't want a seat at 
the table, they want to destroy the table and everyone sitting 
at it.''
    There is no question that today we face a determined set of 
adversaries bent on destroying American lives and our way of 
life. The counterterrorism imperative is to deny the terrorists 
both of these objectives. Evaluating how well the USA PATRIOT 
Act, as enacted and as implemented, satisfies this 
counterterrorism imperative is the fundamental task for this 
Committee, for the Congress as a whole and for the American 
    One of my greatest concerns about the USA PATRIOT Act and 
other changes in the law over the last several years is the way 
in which intrusive criminal investigative powers have migrated 
into the careful legal framework we had established for 
domestic intelligence collection, which is largely governed, as 
you know, by the Foreign Intelligence Surveillance Act or FISA. 
Tearing down the wall that hampered the sharing of information 
between intelligence and law enforcement was absolutely 
essential and I supported it. Nevertheless, there are 
significant differences in the way that information is 
collected in intelligence operations as opposed to criminal law 
enforcement investigations, differences that require 
particularly careful oversight of any new powers granted in the 
intelligence context.
    Intelligence operations present unique risks. They are by 
necessity often wide ranging rather than specifically focused, 
creating a greater likelihood that they will include 
information about ordinary, law-abiding citizens. They are 
conducted in secret, which means abuses and mistakes may never 
be uncovered, and they lack safeguards against abuse that are 
present in the criminal context where inappropriate behavior by 
the Government could jeopardize a prosecution. These 
differences between intelligence and law enforcement help 
explain this Nation's longstanding discomfort with the idea of 
a domestic intelligence collection agency.
    Because the safeguards against overreaching or abuse are 
weaker in intelligence operations than they are in criminal 
investigations, powers granted for intelligence investigations 
should be no broader or more inclusive than is absolutely 
necessary to meet the national security imperative, and should 
be accompanied by rigorous oversight by Congress, and where 
appropriate, by the courts.
    Unfortunately, this essential caution was often ignored in 
the FISA amendments contained in the PATRIOT Act. Changes to 
FISA were often justified with arguments that this authority is 
already available in the criminal context, and ``if it's good 
enough for use against drug dealers, we certainly should be 
able to use it against international terrorists.'' But in the 
FISA amendments in Sections 214 and 215 of the PATRIOT Act, for 
example, we moved from the criminal requirement that 
information demanded by the Government be ``relevant to a 
criminal investigation'' to a FISA requirement that information 
be ``relevant to an investigation to protect against 
international terrorism.'' Consider this term. It does not say 
an investigation into international terrorism activities, which 
would at least mean there was some specific international 
terrorism activity being investigated. No. Instead it says, 
``an investigation to protect against international 
terrorism.'' Imaging if the FBI was engaged in an investigation 
to protect against bank robbery. What does that mean? Just how 
broad is that scope? Whose records could not be demanded as 
relevant to an investigation to protect against terrorism?
    Mr. Chairman, let me conclude by noting that we often say 
that democracy is our strength. A key source of that strength 
stems from the unique relationship between the Government and 
the governed, one based on transparency and trust. Intelligence 
collection imperatives challenge those democratic foundations 
and demand rigorous oversight.
    These hearings and your willingness to consider whether 
provisions adopted in haste at a time of great fear should be 
renewed or modified, will contribute significantly to restoring 
the necessary public confidence that the Government is 
protecting both American lives and America's way of life.
    Thank you for your work and for this opportunity to 
participate today.
    [The prepared statement of Ms. Spaulding appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Ms. Spaulding.
    We now turn to questions from the panel, limited to 5 
minutes each.
    I start with you, Mr. McCarthy. Your outstanding record on 
prosecuting terrorism and securing key convictions is really 
    Mr. McCarthy. Thank you.
    Chairman Specter. And my question to you goes to the use of 
the so-called roving wiretap. When we considered the PATRIOT 
Act late one Thursday night, Senator Feingold offered an 
amendment that would have required the person implementing a 
roving FISA order to ascertain the presence of the target 
before conducting the surveillance. I was one of 7 Senators who 
supported the amendment out of concern for the basic issue, but 
also out of concern for, candidly, the short shrift that the 
amendment got before we had a tabling motion.
    Is that so-called roving wiretap really important for 
battling terrorism?
    Mr. McCarthy. The roving wiretap is crucial for battling 
terrorism. I do not want to suggest that I think that that 
amendment would have been unreasonable. I think it is 
unnecessary and it is sort of a belt and suspenders type add on 
if you take a look at the roving wiretap statute as a whole.
    And what I would stress to the Committee is that in many 
parts of the PATRIOT Act what critics have said about it is 
that what we need here is more judicial oversight. Here is a 
place where I would suggest that you should trust judicial 
oversight. The Government cannot get a roving wiretap unless 
they establish probable cause that is sufficient to at least 
describe a known person, not necessarily identify the person, 
but give an adequate enough description that you could find 
probable cause that the person was doing the predicate 
activities of the statute, and that the person would be using 
    Chairman Specter. Thank you, Mr. McCarthy.
    I want to ask Ms. Spaulding a question, and I want to come 
to Mr. Barr. I would like to ask all the members questions, but 
we have very limited time.
    Ms. Spaulding, when you had commented about relevancy, my 
question to you goes to business records and a discussion we 
have been having about having a higher standard. True, nobody 
has sued them for library records or medical records, at least 
up to this point. But do you believe there ought to be a 
standard pretty much equivalent to probable cause to obtain a 
search warrant before going in to get business records?
    Ms. Spaulding. Mr. Chairman, I think at a minimum we ought 
to consider a higher standard for records that implicate First 
Amendment activity, and probable cause might be the appropriate 
standard there.
    I also think that Section 215 could potentially stand a 
clarification that it applies only to business records. As I 
read it now, it applies to any tangible thing held by anyone. 
It is often justified by citing court opinions related to 
third-party records, and I think most people assume that what 
it attempts to reach is business records, but it does not 
specify that. I think there are clarifications that would help.
    Chairman Specter. Thank you.
    Congressman Barr, you testified before the House Committee 
on the issue of delayed notice, so-called sneak-and-peek, and 
we are searching for a time limit as to what would be 
reasonable to impose. There is one case where a court in 
Illinois imposed a 7-day time limit, and that resulted in 
having the Assistant U.S. Attorney seek 31 extensions over an 
8-month period. We are going to take a close look at that case 
to see why he had 31 extensions, or why if the matter would 
warrant 31 extensions and he got 31 extensions, or at least 30, 
that there would be so many.
    But based on the experience you have had, which is 
extensive, how would you craft a time limit on the so-called 
delayed notice matters?
    Mr. Barr. I think that the case that the Senator cites 
illustrates a couple of things, one, that generally speaking, 
even if on the surface a procedure appears burdensome, it 
probably really is not, and courts are very much inclined--and 
this is compatible with my experience as a U.S. Attorney--
courts are very much inclined to grant governmental requests in 
this area, and that is because, one, the authority that the 
Government has is rarely abused. It is sometimes, but rarely. 
And courts show great deference to the prosecutors when they 
come to the court and ask for an authority or for an exception 
such as sneak-and-peek.
    Chairman Specter. Congressman Barr, I have one more 
question for Professor Cole.
    Would you repeal the PATRIOT Act entirely?
    Mr. Cole. No, I would not.
    Chairman Specter. Thank you.
    Senator Leahy.
    Senator Leahy. I agree with Professor Cole. But I do have 
some problems with some parts of it.
    And in the hearing before the House Terrorism and Homeland 
Security Committee, Congressman Barr, you were asked about the 
PATRIOT Act sunset provision, and you said: I am somewhat 
mystified by a lot of my former colleagues, and your current 
colleagues are so afraid of a sunset provision, particularly 
those of us who are conservative about many issues. I do not 
think that we would be here today, I do not think that these 
hearings would be convened at this point were it not for the 
sunset provisions. It is a very important provision that 
liberals and conservatives alike ought to embrace.
    Obviously, as one of the authors of that sunset provision, 
I agree with you. The administration wants to do away with the 
sunsetting authorities, make them permanent. Is there a problem 
if they are made permanent rather than maybe extending a sunset 
    Mr. Barr. I think that it would be problematic. These are 
very extraordinary powers that we are speaking of here. Even 
though the Government has shown an increasing propensity to use 
these extraordinary powers in what I think a number of 
instances are not extraordinary cases, they are extraordinary 
powers, and I think Congress ought to very, very zealously 
guard against making them permanent. It is, as a practical 
matter in both houses of the Congress, as the Senator I think 
would agree, much more difficult to enact legislation that 
corrects a problem if there is not a sunset provision. That 
provides at least a guaranteed vehicle for the Congress to take 
advantage of.
    Senator Leahy. Thank you.
    Ms. Spaulding, you have had probably as extensive a 
background in intelligence matters and the preventive work that 
intelligence can do, and others, and certainly in this area. Do 
you think the sunsetting authority should be made permanent, 
extended or some combination, and were they worthwhile having 
them in there in the first place?
    Ms. Spaulding. I will say that when the PATRIOT Act was 
first enacted with the sunset provisions, it was not clear to 
me that they would--how effective they would be. But in 
hindsight I think they were brilliant. I think it is absolutely 
the case that we would not have had the level of public 
discussion and debate, the intense focus by Congress had those 
sunset provisions not been there. I think they have been 
incredibly important.
    Having said that, I would not like to see sunset 
provisions, clearly, take the place of making changes and 
modifications today that we now know need to be made. And one 
area where I feel particularly strongly about that is the lone 
wolf provision, which in some ways makes the most compelling 
case for extending the sunset because it was so belatedly 
enacted, just last year, but nevertheless, I think has some 
real problems that should be addressed now.
    Having said that, I think this is a brave new world for us, 
we are finding our way, and sunset provisions make a lot of 
sense in this context.
    Senator Leahy. You, like many of us on this Committee, have 
handled intelligence matters including code word clearance and 
those things. Do you believe that more information on the use 
of surveillance powers could be shared with the Congress and 
actually with the public without jeopardizing national 
    Ms. Spaulding. I think a great deal more information could 
be shared with Congress certainly than was made available when 
I was on congressional staffs. I do not have insight into all 
that is shared today, but I think, for example, even the 
content of FISA applications, of current FISA applications, 
could be shared with at least Committee members.
    Senator Leahy. Let me go into that because in prior 
Congress, as I introduced the Domestic Surveillance Oversight 
Act--Senator Specter and Senator Grassley have been co-sponsors 
of that--I felt it was intended to shine more light on what is 
going on in FISA, requires, for example, reports on U.S. 
persons targeted under FISA, at how often FISA is used for 
criminal courts, to give Congress more information on how the 
FISA courts operate, and a review of constitutional questions 
back in November 2003. Representative Barr said he would 
support it. Would you support this increased reporting that is 
contained in the Domestic Surveillance Oversight Act that 
Senator Specter, Grassley and myself and others have--
    Ms. Spaulding. I would, Senator. I do not see any harm to 
national security, and I think that, while the numbers do not 
tell the public a great deal, they can at least serve as a prod 
to heighten oversight.
    Senator Leahy. Thank you.
    Actually, I do have one question for Mr. Dempsey. We do 
have this public library question. How do you ensure against 
sort of Big Brother snooping that has generated so much 
discussion, without making libraries safe havens for 
terrorists, as Director Mueller has suggested?
    Mr. Dempsey. Well, I think that at the end of the day, 
there is no category of records that the Government should not 
have the power to get, but the question is, what are the 
standards, what are the checks and balances? Right now under 
Section 215 there is no factual showing, there is no 
specificity, there is no notice ever to the person whose 
records are provided to the Government. While there is clearly 
a need for secrecy during the conduct of intelligence 
investigations, I think we need to counterbalance that with a 
meaningful, truly meaningful judicial review based upon a 
factual showing and some specificity.
    Senator Leahy. Thank you.
    Thank you, Mr. Chairman.
    Chairman Specter. Senator Kyl.
    Senator Kyl. Let me ask, Mr. Collins, about that last point 
in your written testimony. You refer to the fact that Section 
215 actually contains more protections than the rules governing 
grand jury subpoenas. Why do you not elucidate on that a little 
    Mr. Collins. Yes. In my testimony I specified a number of 
the different elements that there are under Section 215 to 
getting a court order under FISA for business records. First, a 
court order is required. In a grand jury subpoena the AUSA 
pulls out a grand jury subpoena, types it up and signs it. The 
court is not merely a rubber stamp. The statute explicitly 
states that it can modify the order, and indeed, the 
Department, in its recent report about orders under 215, has 
indicated that that power of modification has in fact been 
    The statute has a narrow scope, can be used in an 
investigation of a U.S. person only to protect against 
international terrorism or clandestine intelligence activities, 
cannot be used to investigate domestic terrorism, and provides 
explicit protection for First Amendment rights. It is not 
possible, as I believe someone asserted this morning, to go 
into a library and just say, ``I want to see who checked out a 
particular book'' that has no particular significance, not a 
book on bomb making. That is an order that would be predicated 
on First Amendment rights in violation of 215 as it exists 
    Senator Kyl. And you further note that the standard 
established in the SAFE Act is that this authority could only 
be authorized--and I am quoting now--``if there are specific 
and articulable facts giving reason to believe that the person 
to whom the records pertain is a foreign power, an agent of 
foreign power,'' which you described as too narrow a standard. 
Why do you believe that?
    Mr. Collins. There has been discussion about whether there 
can be refinement of the standard here. I think that reasonable 
people can agree, or can differ on that question. For example, 
the word ``relevance'' actually does not appear in 215. That 
could be added in. But to raise it to the level of reasonable 
suspicion is too high. Say, for example, you know that a 
particular document has details about water supplies in a 
particular area, and it is a highly arcane document that was in 
Federal depositories, and you know that there was an interest 
in that particular dam, and you want to know who may have 
consulted the details that were available in Federal 
depositories. You could not do that. You could not get those 
records absent making a further showing that those records 
would pertain to a person who was suspected to be a foreign 
    So it requires a higher showing. You could not just get the 
set. If you knew that five people had consulted those records 
you could not get all five without making a showing as to each 
five of them.
    Senator Kyl. Let me just ask you one final question. There 
has been some discussion of the delayed notification on the 
search warrants. Does that not occur with judicial review, and 
does the judge not put the limitations on there that he deems 
appropriate in a particular case?
    Mr. Collins. Yes. Pre-existing case law seemed to have 
developed this presumption of a 7-day limit. That was not 
codified into 213. It allows each judge who authorizes it to 
set what he or she believes is the appropriate limit for the 
initial authorization and for the extensions, depending on the 
showing that is made in a particular case.
    Senator Kyl. So what would the Government ordinarily have 
to show as a justification to the court for the delayed notice?
    Mr. Collins. There are five grounds specified for grounds 
for delayed notification. The SAFE Act, at least in the version 
now in the 109th Congress, the difference only comes down now 
to one ground. There is now agreement on preserving in full the 
other four grounds, and it is just the ground over seriously 
jeopardizing an existing investigation.
    Senator Kyl. What is your view on that?
    Mr. Collins. I believe that that should be preserved as a 
ground. The Department has given a number of examples primarily 
in the context of what might be called spinoff investigations, 
where you are investigating one particular organization for one 
thing and then you realize that there is another collateral 
activity, there is credit card fraud or something. You want to 
intercept a package that is being shipped either to verify what 
is being shipped or to pursue further leads on that. But if you 
were to give the notification on the spinoff investigation, you 
would then tip off the larger investigation, and to force 
people to the choice of either, well, we will just ignore what 
we now know is a second criminal activity, seems I think too 
high a cost and the judicial supervision should be sufficient.
    Senator Kyl. Thank you.
    Chairman Specter. Thank you very much, Senator Kyl.
    Senator Feingold.
    Senator Feingold. I thank the panel and let me first ask if 
Mr. Dempsey wanted to respond to the point Mr. Collins was 
    Mr. Dempsey. I thought that the example that he gave about 
the rare document and a dam and the document had some 
information about the vulnerability of the dam and that it was 
known that people were interested in attacking that dam. I 
think that is specific and articulable facts.
    Senator Feingold. Thank you. That is what I assume was the 
point you wanted to make, one I would have made. Thank you very 
    Ms. Spaulding, the so-called lone wolf or Moussaoui fix 
became law last year as part of the Intelligence Reform and 
Terrorism Prevention Act, but it sunsets at the end of a year. 
I actually raised serious concerns about the lone wolf 
provision when it came through this Committee, and argued that 
it was an unnecessary and possibly unconstitutional expansion 
of FISA. I also joined Senator Feinstein in offering an 
amendment to deal with the lone wolf problem by way of 
essentially a permissive presumption that would allow a FISA 
warrant to be issued in certain cases. You have had a lot of 
experience with FISA, both from the perspective of the 
intelligence community and working in congressional oversight. 
Could you give your perspective on whether we should 
reauthorize this provision and whether this permissive 
presumption approach is workable and preferable?
    Ms. Spaulding. Yes, thank you, Senator. I actually 
testified a couple weeks ago in the House Judiciary Committee, 
primarily about the lone wolf provision, and very strongly 
endorsed that permissive presumption amendment to the lone wolf 
    I think it addresses what is the real problem, which is--if 
there is a problem--one of uncertainty about connection to an 
international terrorist group. As you noted, the lone wolf 
provision is often referred to as ``the Moussaoui fix,'' but as 
an exhaustive study by this Committee demonstrated, there was 
no need for a fix to FISA to be able to access Mr. Moussaoui's 
computer. In fact, the failure to do so reflected a 
misunderstanding on the part of the Bureau as to the FISA 
standard. So it is not really necessary to get at the--because 
the probable cause standard is a relatively low standard, not 
even ``more likely than not,'' and because an international 
terrorist group can consist of two individuals, the ability to 
meet a probable cause standard that this person is operating 
with at least one other person is not a very high hurdle.
    Having said that, if the Government can make a compelling 
need, I think the permissive presumption fix is appropriate.
    Where I am really troubled is that the provision as now 
written really reflects I think a cynical--I have expressed it 
as a Humpty-Dumpty approach to the law, where words mean what I 
choose them to mean.
    Defining someone who is acting entirely alone with no 
connection to any other person or foreign power as ``an agent 
of a foreign power,'' as FISA now does, is a legislative 
legerdemain that I think threatens to undermine this very 
important national security tool, and I would take the lone 
wolf, the true lone wolf, out.
    Senator Feingold. Thank you.
    Mr. Dempsey, at a hearing on the Select Senate Intelligence 
Committee a couple weeks ago, Attorney General Gonzales 
testified that we do not need an ascertainment requirement for 
roving wiretaps under the FISA as the SAFE Act would mandate 
because there is no ascertainment requirement for criminal 
roving wiretaps. Is that correct, and can you respond to what 
Mr. Collins said about the roving wiretap changes in the SAFE 
Act, please?
    Mr. Dempsey. Well, as I read the roving tap authority in 
Title III, there is an ascertainment requirement. I have to say 
that in 1998 in a amendment that was made out of scope to the 
Intelligence Authorization Act, it was watered down, but it is 
still there. The order is limited to the interception so long 
as it is reasonable to presume that the person identified in 
the application was in the reasonable proximity of the 
instrument to be intercepted. There is a better, I think, 
roving ascertainment requirement applicable to bugs.
    When this Committee, under Senator Leahy and Senator 
Mathias, first adopted the roving tap authority in 1986, they 
did have that stronger ascertainment requirement for both taps 
and bugs. In fact, if you look at the Committee report on the 
1986 roving tap provision, they specifically cited terrorism as 
one of the cases why that was being adopted and why the 
ascertainment requirement was suited for both taps and bugs of 
terrorists. And it is still there, albeit in watered-down form 
for taps. So I have to disagree with the Attorney General on 
    Senator Feingold. Mr. Dempsey, FBI Director Mueller has 
advocated that we expand the PATRIOT Act as part of the 
reauthorization process and grant the FBI broad administrative 
subpoena authority in terrorism cases. He argues that national 
security letters and Section 215 orders are insufficient to 
obtain records because apparently they take too long or are too 
difficult to enforce. How would you respond to Director Mueller 
on those points?
    Mr. Dempsey. Well, I think administrative subpoenas is one 
of the worst ideas that has been around for 30 years, which is 
how long it has been around for. This is a piece of paper 
signed by an FBI agent saying, ``Give me everything you have,'' 
with not even the nominal oversight of a prosecutor that you 
have with the grand jury subpoena. And in this age of 
Blackberries and ubiquitous Internet access, I really do not 
see why, except in the rarest of cases, you would ever need to 
avoid going to a judge under the minimal showing that is being 
discussed here to get approval to get papers and records either 
in a terrorism case or an ordinary criminal case.
    Senator Feingold. Mr. Chairman, I thank you for the time. I 
would just like to ask to place in the record a statement in 
support of the SAFE Act from Senator Salazar, as well as 
letters of support from the American Jewish Community and 
various other outside groups.
    Chairman Specter. Without objection, they will be made a 
part of the record.
    Thank you very much, Senator Feingold.
    Senator Hatch.
    Senator Hatch. Mr. Collins, between April 2003 and January 
2005, a period of 21 months, delayed search notice warrants 
were used, I believe, 108 times. Now, in 28 of those cases 
seriously jeopardizing the investigation was the sole ground 
for seeking the delay of notice from the issuing court. Now, 
that is 26 percent of the time. That seems far from catch-all 
use to me. The words ``seriously jeopardize'' sound like very 
narrowing modifiers of the Government's power to request this 
type of a warrant. I think that most judges would be able to 
distinguish and determine when circumstances may affect the 
outcome of a case and when circumstances may seriously 
jeopardize a case.
    These delayed notification warrants have been requested and 
granted less than one-fifth of one percent of the time, as I 
understand it. I do not see evidence of abuse here. Am I right 
on these facts? And where were the cries of injustice when the 
delayed notice warrants were used in criminal cases before 9/
    Mr. Collins. Senator, you are correct that this was not an 
innovation of the PATRIOT Act. This was something that existed 
in case law and standards had been developed. It was codified 
in the PATRIOT Act, and the PATRIOT Act specifically gave 
flexibility to the district judge to set the time limits, and 
that has really been the primary point of dispute.
    I think the other thing that is worth noting about the 
statistics that, Senator Hatch, you have cited and that the 
government has supplied in a letter to the Chairman is that the 
district courts who have reviewed these have, in fact, invoked 
the flexibility on timing that the PATRIOT Act has granted 
them. Some have said seven days in particular cases. Another 
said 10, another said 30. They have, in fact, set it depending 
in the showing that has been made to them.
    Mr. Dempsey. Senator, may I comment?
    Senator Hatch. Sure.
    Mr. Dempsey. The catch-all provision, I think, is of 
concern particularly in relationship to the standard. The 
standard is reasonable cause--not probable cause, but 
reasonable cause to believe that the notice may have the 
adverse effect. So it is almost a double expansion--reasonable 
cause to believe that it may have an adverse impact.
    If you look at those statistics, you see that not a single 
judge denied a single government request under any prong of the 
sneak-and-peek test. So in every single case where the 
government cited serious jeopardy to a case, the court found it 
and ordered it.
    I think that the proponents of this sneak-and-peek 
provision are in a way trying to have their cake and eat it, 
too. They say, well, we are just codifying current law. But 
current law did have as a presumption a 7-day delay period, and 
yet we have in one case that was referenced by the Justice 
Department a 406-day delay in notice.
    In seven cases, the Justice Department sought unlimited 
delay. They asked for, and I think in six of the seven or seven 
of the seven got, delay for the duration of the investigation. 
I don't think there is a single case on the books prior to this 
legislation where judges said go on as long as you want.
    Senator Hatch. Well, we are talking about terrorists here.
    Mr. Dempsey. Well, no, we are not.
    Senator Hatch. Yes, we are.
    Mr. Dempsey. Excuse me, Senator, but by and large this has 
been used in nonterrorism cases.
    Senator Hatch. It was used before, too.
    Mr. Dempsey. They broke into a judge's chambers.
    Senator Hatch. Let me take back my time because I want to 
ask one more question before I finish.
    Mr. Collins, it seems to me that the PATRIOT Act takes 
tools already available to law enforcement in criminal 
investigations and enables them to use those same tools to go 
after criminal terrorists. We gave law enforcement the right to 
do in a terrorism case the same job we would expect them to do 
in a case against any public menace such as drug dealers, 
pedophiles, mafia syndicates, et cetera. That is a bright 
change from the dark past when you weren't allowed to apply 
these basic tools in the cases of suspected terrorism because 
of an artificial wall between intelligence and law enforcement.
    Is that an accurate assessment? Also, if you have any 
comments about Mr. Dempsey's comments, I would appreciate 
those, too.
    Mr. Collins. I think that one of the goals of the PATRIOT 
Act was to ensure that there would be counterparts on the 
intelligence side of the ledger for the tools that are on the 
criminal side. That doesn't mean that there might not be 
differences, depending on the circumstances, between those 
tools, and that is really what the debate comes down to.
    Senator Hatch. Okay, and with regard to Mr. Dempsey's 
comments, if it is justified by the court, I can see why, to 
protect an investigation, they might grant more than seven 
    Mr. Collins. One of the points I made is that the PATRIOT 
Act was not--when I said it was a codification, I didn't mean 
it had no change. In fact, I said exactly the opposite in 
making the point that judges have taken advantage of the 
flexibility to allow longer times. Somehow, this seven days had 
gotten into the case law before. That did not go into the 
statute and they have, in fact, set different time periods in 
different investigations. The fact that none have been denied 
may suggest that the government has been quite cautious in its 
use of it and has made convincing showings that they have not 
abused it.
    Senator Hatch. Yes, I think we ought to presume that rather 
than to presume the worst.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Hatch.
    Senator Sessions.
    Senator Sessions. Thank you, Mr. Chairman. I would just 
repeat my own evaluation for what it is worth. I was a 
prosecutor for over 15 years. I issued hundreds and hundreds of 
subpoena, probably not as many as Mr. Barr did when he and I 
were U.S. Attorneys together because he had a bigger district 
to cover, more millions of people. But we issued thousands of 
them. I was attorney general.
    I found nothing in this Act that encroached or really 
undermined the classical principles of search warrants, nothing 
that conflicts with fundamental principles of issuing a 
subpoena. Mr. Barr prosecuted a Republican Congressman. He was 
appointed by President Reagan in Atlanta, and I saw it in the 
papers all the time. It was a battle.
    I bet you, Bob, you had all of his telephone records, all 
of his bank records, all of his business records, his calendar 
diary, notes, phone messages, and you just issued subpoenas for 
some of that and some you issued search warrants for. Isn't 
that correct? Isn't that done routinely everyday that a United 
States Attorney can issue a subpoena for hotel records to see 
who was in a hotel?
    The DEA in a drug case can issue an administrative subpoena 
for those kinds of hotel and telephone records. Isn't it done 
everyday all over America?
    Mr. Barr. They are done everyday all over America. That 
really I don't think is the question before the Senate. The 
question is--
    Senator Sessions. I don't have but a minute, but I would 
like in one brief moment, you tell me what is so dangerous 
about this Act, where we have gone out of historical principles 
of prosecutorial and investigative authority. You will never 
convict anybody of bank fraud, Enron or anything else, if you 
can't get their records.
    Mr. Barr. Well, I dare say that the government had plenty 
of not just reasonable suspicion that crimes were committed in 
those cases that the Senator cites, but very articulable 
suspicion. And that is where--
    Senator Sessions. Very articulable suspicion. Now, what is 
the standard for issuing a subpoena?
    Mr. Barr. An articulable suspicion, I think, is a very 
sound standard, and we have gotten away from that. That is one 
of the problems here, Senator, in Section 215 which can be used 
to reach the exact same records that you and I would not have 
thought of reaching if we didn't have articulable suspicion.
    Senator Sessions. Well, if you are brought to trial and 
there was no basis to obtain the records, you could move to 
dismiss the indictment if that proof is critical.
    Mr. Barr. But you can't do that in a FISA.
    Senator Sessions. Yes, you can at trial, can you not?
    Mr. Barr. Not under Section 215. The person never knows.
    Senator Sessions. The records they will know.
    Mr. Barr. No, they won't. They are in the hands of a third 
    Senator Sessions. If you have got their bank records and 
their bank records are introduced--
    Mr. Barr. You would never know if somebody moved under a 
Section 215 order to get your records because they are not 
going after your records that you have. They are going after 
records about you that somebody else has.
    Senator Sessions. And as we know, counsel, you don't have 
the classical reasonable expectation of privacy in documents 
being held by another company. They are that company's 
documents. What you have in your house, what you have under 
your control in your wallet, in your pocket--you have an 
expectation of privacy and that cannot be obtained without a 
search warrant approved by a Federal judge.
    Mr. Barr. I think you do have a legitimate expectation that 
they will not be gathered and used against you without at least 
some reason to believe that you have done something wrong, 
    Senator Sessions. Do you think it is a wrong for a district 
attorney in a town with 20 motels who has got information that 
John Jones spent the night in that town to issue a subpoena to 
every motel there to see if they have a record of John Jones?
    Mr. Barr. If there was a reasonable connection with a 
criminal proceeding or if the government had a reasonable 
suspicion that he was an agent of a foreign power, yes.
    Senator Sessions. So this is done all the time. I will let 
Mr. Dempsey comment.
    Mr. Dempsey. Yes, Senator, thank you. I think the crucial 
distinction is that if a prosecutor issued subpoenas to 20 
hotels, those hotels could squawk about it. If they thought 
that subpoena was over-broad, they could squawk about it and 
that prosecutor would know that at the end of the day his 
conduct would show up in court, in the light of day, subject to 
public scrutiny. And if he was casting a fishing net--
    Senator Sessions. I understand that.
    Mr. Dempsey. Here, Senator, we are talking about secret 
intelligence investigations.
    Senator Sessions. Secret intelligence information, but it 
involves the security of our country. We have always treated 
that differently. And, number two, you go to the judge first. 
The D.A. does not have to go to a judge to issue subpoenas for 
bank records, medical records, library records. He issues that 
subpoena and they are produced.
    But if he desires to do one involving a terrorist 
circumstance, he has to go and present the evidence to a 
Federal court and get court approval before the subpoena is 
issued, quite different from the other. So, in effect, do you 
not, Mr. Collins, have court review in advance of the action 
rather than an opportunity to object at trial later on?
    Mr. Dempsey. Senator, under 215 there is no factual 
showing. No facts need be stated by the Government, and it says 
that the judge shall issue the order, as requested or modified, 
without naming the target of the investigation and without 
specifying whose records are sought or what connection they 
have to that investigation. And the recipient is prohibited 
forever from telling anybody. He can't complain and that may 
never show up in court.
    Senator Sessions. Well, that is very important. If you are 
conducting a sensitive investigation, Mr. Dempsey--
    Mr. Dempsey. But that is why--
    Senator Sessions. Just a second. You have had your comment. 
If you are doing a sensitive investigation of a terrorist 
organization and you want to subpoena their bank records, you 
don't want the banker calling up the terrorist organization and 
telling them they just subpoenaed your records. This is life 
and death. It is not academic.
    Mr. Dempsey. Exactly, Senator, and that is why we should 
have other protections.
    Senator Sessions. And it has been done before. You can get 
court orders today. Before the PATRIOT Act, you could get court 
orders to direct the recipient of the subpoena not to make it 
    My time is out here, but I just don't--
    Chairman Specter. This is pretty lively, Senator Sessions.
    Senator Sessions. Well, I take it very seriously. We are 
not out of historical traditions of search and seizure on the 
issue of subpoenas here.
    Chairman Specter. I was about to offer you a little more 
    Senator Sessions. Thank you, Mr. Chairman.
    Mr. Collins?
    Mr. Collins. If I just may make one point, in addition to 
having to go to the court first, I think it is notable that the 
Department in litigation has taken the position that there is a 
right to challenge a 215 order in court. The Attorney General 
reiterated that in his April 27th testimony, and that, I think, 
is one issue that is worth discussing, is what a provision that 
makes that formal looks like.
    The SAFE Act does, in fact, have something there. I think 
it raises a number of serious questions. I alluded to the fact 
that it creates an automatic stay and it is not clear to me 
that there should be an automatic stay right in the statute, as 
opposed to a judge determining that it should be stayed pending 
a resolution of the dispute.
    It incorporates the Classified Information Procedure Act 
which is designed for a criminal context and just carries it 
over into the civil context without modification. That raises a 
serious question. It allows these to be filed in any district 
court in the United States, rather than, as has been the model 
under FISA, those judges or magistrate judges who have been 
designated by the Chief Justice and where the facilities are 
set up to allow this to be done. It creates significant rights 
of disclosure, again, by analogy to CIPA. All of those, I 
think, are very serious questions that need careful study if 
this is going to be articulated, what this review that everyone 
agrees should be made available would actually look like.
    Senator Sessions. The pre-issuance review?
    Mr. Collins. Well, the pre-issuance is the fact that, 
Senator, as you pointed out, under 215 you can't just pull a 
piece of paper out of your desk and sign it and get the record. 
You first have to go to a judge and get an order.
    Senator Sessions. Well, Mr. Dempsey says you don't have to 
give any evidence to the judge.
    Mr. Collins. No. You have to show that there is, in fact, 
an investigation and that the records--
    Senator Sessions. Are relevant to the investigation.
    Mr. Collins. --are relevant.
    Senator Sessions. That is the standard for subpoenas, isn't 
it, Mr. Barr, or anybody, prosecutors? It is evidence relevant 
to the investigation.
    Mr. Barr. You have to read the rest of it, Senator--
relevant to an investigation to protect against acts of 
terrorism. That is different from a grand jury standard, much 
    Chairman Specter. Senator Sessions, Senator Leahy has to 
leave in a few moments. Let's turn to him for a closing 
    Senator Sessions. He issued a lot of subpoenas in his 
prosecutorial career, also.
    Senator Leahy. I had to go through a judge, I had to go 
through a judge. I had to go through a judge and I had to show 
probable cause.
    Senator Sessions. Not for issuing a subpoena, not probable 
    Senator Leahy. For the subpoenas I did--I was a State 
prosecutor--we had to have probable cause. We had minimal 
probable cause, but it was there and it was with notice. If not 
immediately, there was notice and it could then be contested.
    Mr. Dempsey, when Senator Hatch cut you off, you were just 
about to say something about a break-in at a judge's office. 
What was that all about?
    Mr. Dempsey. Well, this is one of the sneak-and-peek 
searches. I mean, I say break-in. It was a sneak-and-peek 
search under Section 213. The Justice Department has reported 
on some of the cases in which they have used this authority and 
a number of them are nonviolent, nonterrorism cases, one a 
judicial corruption case, clearly a very important matter, but 
I think that is not what most people thought they were voting 
for when they voted for the PATRIOT Act.
    Senator Leahy. Let me talk about a few things. Professor 
Cole, the administration has never used the detention power it 
requested in Section 412. Does it have any useful purpose or 
can we just eliminate it?
    Mr. Cole. I think it could be eliminated. What we have seen 
is that without invoking Section 412, the administration 
subjected over 5,000 foreign nationals to preventive detention 
using immigration power.
    Senator Leahy. Is that to enhance national security, those 
5,000 people?
    Mr. Cole. There is absolutely no evidence that it has 
enhanced our national security. In fact, I think there is 
considerable evidence that it has undermined our national 
security. First, as I suggested in my opening remarks, none of 
the people who were detained and called suspected terrorists by 
Attorney General Ashcroft repeatedly in the weeks and months 
after September 11--not one of them stands convicted of a 
terrorist crime today. So there is no credible evidence of any 
    The loss from a security perspective is that we have 
alienated entire communities, Arab and Muslim communities here 
in the United States, and maybe more importantly Arab and 
Muslim communities around the world who see us imposing on 
their nationals burdens and obligations that we would not be 
willing to bear ourselves.
    So, no, I don't think Section 412 is necessary. If the 
Government can lock up 5,000 people with no connection to 
terrorism without 412, they clearly don't need Section 412. In 
fact, what I think is necessary is some congressional 
legislation that puts restrictions on immigration detention so 
that it is governed by the same standards that govern criminal 
detention. Where there is evidence that someone is either a 
danger to the community or a risk of flight, he or she may be 
detained, pending proceedings. But without that evidence, no.
    Senator Leahy. I worry that we sometimes feel that if 
somebody is from anywhere outside our shores, there is going to 
be a real problem about them. I don't want to call it 
xenophobia, but it is somewhat creeping, and as the grandson of 
immigrants it worries me greatly some of the things we are 
doing that we would never impose, or don't even want other 
countries to impose on us because, of course, we are Americans 
and we want to impose it on others.
    The debates about closing our borders, and so on--the 
Senate is going to vote on a supplemental appropriations bill 
today and it has a substantial increase in immigration 
provisions which this Committee was never even allowed to look 
at. It was junk plunked in there, and numerous regulatory 
changes that I know you have said have impeded the 
constitutional rights of immigrants.
    Should we be looking back at our immigration laws in this 
country and ask whether maybe we are getting carried away? We 
are doing so many things that seem out of the mainstream, and I 
realize it is apples and oranges, but Section 3144, Title 18, 
so we can lock up witnesses who have information deemed 
material--I am thinking about Brandon Mayfield, the Portland 
attorney. My gosh, we got a perfect match on his fingerprints 
that he was involved in the bombing in Madrid. In fact, he 
hadn't been there, but we will just go and seize all his things 
and ruin his livelihood. He did hang around with Muslims.
    The fact that he is out in Portland, Oregon, and the train 
was in Madrid and we got a false reading on a fingerprint that 
even under the loose standards of the FBI laboratory shouldn't 
have gone through--I am getting off the subject. What should we 
    Mr. Cole. I think on the subject of immigration, Senator 
Leahy, we should be a country that does not permit secret 
arrests, does not permit secret trials, does not hold people 
liable for their speech without showing any dangerous conduct, 
does not deport people for their political associations, and 
that does not lock people up without some objective evidence 
shown to a judge that the person needs to be locked up. That is 
the country we ought to be. That is the country we insist on 
for citizens.
    We ought to extend those same basic protections to the 
people who live among us who are not citizens. These rights--
rights of speech, rights of association, rights of due 
process--are not privileges of citizenship. They are rights of 
all persons. They are owned to every human being in the United 
States and we ought to extend those rights.
    I think the Civil Liberties Restoration Act is a great 
start on that, but as I said before, there has been no hearing 
on it in either House. I think the supplemental appropriations 
is definitely a step in the wrong direction going back 
essentially to the McCarran-Walter Act, where we kept out 
people like Graham Greene and Gabrielle Garcia Marquez and NATO 
General Nino Pasti, not for their conduct, but for what they 
say and for with whom they associate.
    Senator Leahy. Well, Mr. Chairman, I am glad to hear that 
said because we have to remind ourselves--you know, the 
Chairman and I have been here about 30 years each and when we 
first came here, it was at the height of the Cold War, Iron 
Curtain and all. And I loved going to places behind the Iron 
Curtain and being able to say to countries with censorship 
where people would be locked up, whether it was Solzhynitsyn 
who came to live in Vermont later on, and others, that, boy, in 
America you can speak out. We protect speech. In fact, what is 
most important, we protect unpopular speech. It is easy protect 
popular speech. We protect unpopular speech. I loved being able 
to say that all over the world as a very distinct hallmark of 
our democracy and protection of our First Amendment. No other 
country has the kind of protection that we do. I worry very 
much about what it does to our image abroad and what it does to 
us as a people if we pull back from that.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Leahy.
    Mr. Dempsey, did you say that Section 213 was used to 
search a judge's chambers?
    Mr. Dempsey. Yes, sir. That is reported by the FBI in a 
letter to Senator Stevens in 2003--excuse me--by the Department 
of Justice.
    Chairman Specter. I don't want to conduct a protracted--
    Mr. McCarthy. Senator, I am sorry. I don't mean to 
interrupt. My understanding is that that occurred in 1992, like 
about ten years before the PATRIOT Act.
    Chairman Specter. Well, I was just about to put into the 
record a copy of a letter dated May 6 of this year to Senator 
Roberts, who is Chairman of the Senate Select Committee on 
Intelligence, concerning testimony that you had provided, Mr. 
Dempsey, concerning the Department's use of Section 213 of the 
PATRIOT Act. It is a long letter and we are way over time now, 
    Mr. Dempsey. If you could, Senator, could we also place in 
the record the Justice Department letter in defense of Section 
213 that cited that case?
    Chairman Specter. After I finish my sentence, I will.
    I don't intend to go into this in any great detail, but I 
am going to make this a part of the record, and I am glad to 
put into the record any document which you think is relevant.
    Mr. Dempsey. Thank you, sir.
    Chairman Specter. You don't have to show relevance or 
    Chairman Specter. We have very generous standards for 
admitting matters to our record. One of my first exposures to 
that was Senator Dole one day with a broad, sweeping gesture 
one day said I am going to clean off my desk and put it all in 
the congressional Record.
    Senator Sessions, do you have any concluding comment?
    Senator Sessions. I think that is a hint. Mr. Chairman, I 
was reading, I believe, a book--I gave it to my staff--about 15 
years ago, about, I believe, an organized crime case or a big 
drug case. I think it was an organized crime case. The 
government used a delayed notification search warrant.
    I can't express how important a tool this can be in a big-
time case involving a terrorist organization that is seriously 
threatening our people. It is important in major drug cases, it 
is important in any big mafia case and cases like that. There 
are times when you need to be able to determine what is in a 
    Under normal law, if you want to find out what is in a 
residence and seize weapons of mass destruction, you go to 
court. If you have got probable cause, a judge gives you a 
warrant and you go out and seize the stuff and you take it 
right back to the police station and you give them an inventory 
of what you seized. That is the way you do it. In America, it 
is done probably 5,000 times, 10,000 times a day, everyday, in 
    Under this proposal, it just simply codifies procedures 
that have been utilized historically by which you provide 
further evidence that making known to the criminal or the 
terrorist that you have seized this material can be adverse to 
the investigation or the public safety. And you have to show 
this to this court and you can get an order that allows you to 
not seize the documents that you could actually seize and take 
back to the police station; just see if they are there, or the 
chemicals or the bomb material and that kind of thing. This so-
called sneak-and-peek has been portrayed as some sort of 
incredibly intrusive law enforcement technique unprecedented in 
American history, and it is just not so.
    Now, with regard to the issue of subpoenas under FISA, the 
standard as it comes to me now is whether or not the documents 
are relevant to an investigation, not whether it provides 
probable cause or anything like that. Does this motel, hotel, 
hospital, library, business, charitable organization have 
documents relevant to an investigation? And you would normally 
just issue the subpoena on behalf of the grand jury and they go 
out and get the documents. I mean, that is the way you do it.
    If it is really important and this person can be connected 
to a terrorist organization or a foreign power, you can go to 
the FISA court and get a subpoena. You have to get the court's 
approval first, and then you go out and you get the documents. 
And he can't reveal that he has been served and he can't quash 
at that stage.
    Now, is it your position, Mr. Collins--and, Mr. Dempsey, I 
will raise it with you--that if there was some procedure along 
the way that you could get a quash that that would make you 
happy? I mean, surely this is not a huge deal.
    Mr. Dempsey. Well, Senator, first of all I want to say that 
I agree with you entirely that the risk we face here is grave, 
that these are extremely serious matters. For that reason, I 
have said that there is not a single power in the PATRIOT Act 
that I think needs to sunset; that the records that are at 
issue here are records that the government should have access 
    I want to engage both at this hearing and afterwards if we 
have some time in a real dialogue with you to talk about what I 
perceive as some of the differences between the grand jury 
subpoena and the 215 order, and where are some of the checks 
and balances that can ensure that the government has the power 
it needs, the timeliness it needs, the secrecy it needs.
    Senator Sessions. Those can be critically important.
    Mr. Dempsey. Absolutely, but still have some of the checks 
and balances and oversight. One of the issues that has clearly 
been put on the table is the after-the-fact challenge or the 
challenge by the recipient of the order, which is a possible 
check, an important check.
    Often, that person, though, Senator, has very little 
interest. The records don't pertain to them. As you say, they 
are business records. And again I worry with this perpetual 
secrecy and how can we put a little bit more protection at the 
front end instead of relying on the back-end protection, when 
the person who has the right to challenge on the back end 
really doesn't care in many cases and it is almost better for 
    Senator Sessions. They don't care at the front end most 
    Mr. Dempsey. Well, that is often true.
    Senator Sessions. But, some, like a bank--a lot of banks 
now, Mr. Chairman, have a policy that if they are served a 
subpoena, they notify their customer. That didn't used to be 
the case.
    Mr. Dempsey. And I think that is an important possible 
    Senator Sessions. They would prefer a court order saying 
not to do so. That protects them from being sued by the 
customer or violating their bank policy.
    Chairman Specter. Senator Sessions, your second-round time 
is up, and it is almost noon.
    Senator Sessions. Thank you for your leadership on this 
    Mr. Dempsey. I hope we can continue the discussion, 
    Senator Sessions. Thank you very much.
    Chairman Specter. Mr. Cole, I have one final question for 
you. If you have a member of Al Qaeda and the only evidence is 
his membership in Al Qaeda, association with Al Qaeda, but 
there is no evidence of a terrorist Act and he seeks admission 
to the United States, there is a grave difficulty in how you 
protect the country and protect his right of association.
    Is there a right of association with Al Qaeda, so that if 
there is no terrorist act, you would admit him to this country?
    Mr. Cole. I think Al Qaeda is a different case, for the 
following reason. The right that the Supreme Court has 
    Chairman Specter. Well, could you start off by answering my 
    Mr. Cole. I don't think you have the same right of 
association with Al Qaeda as you would have, for example, with 
the African national Congress or the Palestinian Authority or 
the Northern Alliance in Afghanistan, all of which are defined 
as terrorist groups under the Iraq supplemental appropriation.
    Al Qaeda is different because Al Qaeda engages entirely, as 
far as we can tell, in illegal conduct. That is all they are 
about. They are not a political organization with a particular 
agenda which uses some legal means and some illegal means to 
further that agenda. They are an organization engaged in 
nothing but illegal conduct.
    The standard the Supreme Court identified in the Communist 
Party cases is when a group engages in both lawful and unlawful 
activity, it is a violation of the First Amendment principle of 
free association and a violation of the Fifth Amendment 
principle of personal guilt to impose liability on an 
individual by means of his connection to that group without 
showing some connection to unlawful activities of the group.
    Chairman Specter. Thank you, Professor Cole.
    This has been a very lively and very productive session. It 
is a surprise to me that all of my colleagues have left 
already. Oh, no, it is past noon. I can understand why they 
    Thank you, Congressman Barr, Professor Cole, Mr. Collins, 
Mr. Dempsey, Mr. McCarthy, and Ms. Spaulding. That concludes 
our hearing, and we will be pursuing this matter in depth.
    Mr. Dempsey, you have all the time you want to find Senator 
    Mr. Dempsey. I am going to track him down. Thank you, 
    [Whereupon, at 12:01 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
    [Additional material is being retained in the Committee