[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
USA PATRIOT ACT: DISPELLING THE MYTHS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
MAY 11, 2011
__________
Serial No. 112-32
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina JERROLD NADLER, New York
ELTON GALLEGLY, California ROBERT C. ``BOBBY'' SCOTT,
BOB GOODLATTE, Virginia Virginia
DANIEL E. LUNGREN, California MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana MAXINE WATERS, California
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio MIKE QUIGLEY, Illinois
TED POE, Texas JUDY CHU, California
JASON CHAFFETZ, Utah TED DEUTCH, Florida
TIM GRIFFIN, Arkansas LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania [Vacant]
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
[Vacant]
Sean McLaughlin, Majority Chief of Staff and General Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel
------
Subcommittee on Crime, Terrorism, and Homeland Security
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
LOUIE GOHMERT, Texas, Vice-Chairman
BOB GOODLATTE, Virginia ROBERT C. ``BOBBY'' SCOTT,
DANIEL E. LUNGREN, California Virginia
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
TED POE, Texas HENRY C. ``HANK'' JOHNSON, Jr.,
JASON CHAFFETZ, Utah Georgia
TIM GRIFFIN, Arkansas PEDRO PIERLUISI, Puerto Rico
TOM MARINO, Pennsylvania JUDY CHU, California
TREY GOWDY, South Carolina TED DEUTCH, Florida
SANDY ADAMS, Florida SHEILA JACKSON LEE, Texas
BEN QUAYLE, Arizona MIKE QUIGLEY, Illinois
[Vacant]
Caroline Lynch, Chief Counsel
Bobby Vassar, Minority Counsel
C O N T E N T S
----------
MAY 11, 2011
Page
OPENING STATEMENTS
The Honorable F. James Sensenbrenner, Jr., a Representative in
Congress from the State of Wisconsin, and Chairman,
Subcommittee on Crime, Terrorism, and Homeland Security........ 1
The Honorable Robert C. ``Bobby'' Scott, a Representative in
Congress from the State of Virginia, and Ranking Member,
Subcommittee on Crime, Terrorism, and Homeland Security........ 3
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 3
WITNESSES
J. Patrick Rowan, Partner, McGuire Woods LLP
Oral Testimony................................................. 11
Prepared Statement............................................. 14
The Honorable Bob Barr, a former Representative in Congress from
the State of Georgia
Oral Testimony................................................. 21
Prepared Statement............................................. 23
Bruce Fein, Campaign for Liberty
Oral Testimony................................................. 68
Prepared Statement............................................. 71
Ed Mullins, President, Sergeants Benevolent Association of New
York
Oral Testimony................................................. 83
Prepared Statement............................................. 86
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 7
Article from The New York Times submitted by the Honorable John
Conyers, Jr., a Representative in Congress from the State of
Michigan, and Ranking Member, Committee on the Judiciary....... 98
Article from The Washington Post submitted by the Honorable John
Conyers, Jr., a Representative in Congress from the State of
Michigan, and Ranking Member, Committee on the Judiciary....... 100
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Subcommittee on Crime, Terrorism, and Homeland Security........ 117
Article written by Julian Sanchez, Research Fellow, the Cato
Institute...................................................... 126
Letter from John Quinn, President, the Association of State
Criminal Investigative Agencies (ASCIA), Director of Criminal
Investigation, State of Iowa................................... 158
Letter from Jon Adler, National President, Federal Law
Enforcement Officers Association............................... 160
Letter from Ed Mullins, President, Sergeants Benevolent
Association of New York City................................... 163
Letter from Lester A. Davis, President, Society of Former Special
Agents of the Federal Bureau of Investigation, Inc............. 166
Letter from Konrad Motyka, President, Federal Bureau of
Investigation Agents Association............................... 168
Letter from Debra Burlingame, Co-Founder, and Timothy Killeen,
Executive Director, Keep America Safe.......................... 171
Letter from Chuck Canterbury, National President, National
Fraternal Order of Police...................................... 172
Letter from Doug Gillespie, Sheriff, and President, Major County
Sheriffs' Association (MCSA)................................... 173
Letter from James Reams, President, National District Attorneys
Association.................................................... 175
Letter from Steven H. Cook, President, National Association of
Assistant United States Attorneys.............................. 176
USA PATRIOT ACT: DISPELLING THE MYTHS
----------
WEDNESDAY, MAY 11, 2011
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to call, at 10:05 a.m., in
room 2141, Rayburn Office Building, the Honorable F. James
Sensenbrenner, Jr. (Chairman of the Subcommittee) presiding.
Present: Representatives Sensenbrenner, Gohmert, Goodlatte,
Lungren, Chaffetz, Marino, Gowdy, Adams, Quayle, Conyers,
Scott, Johnson, Chu, Jackson Lee, and Quigley
Staff present: (Majority) Caroline Lynch, Subcommittee
Chief Counsel; Lindsay Hamilton, Clerk; (Minority) Bobby
Vassar, Subcommittee Chief Counsel; Sam Sokol, Counsel; Joe
Graupensberger, Counsel; and Veronica Eligan, Professional
Staff Member.
Mr. Sensenbrenner. The Subcommittee will come to order, and
the Chair recognizes himself for 5 minutes.
Today's hearing is the third the Subcommittee has held in
the last 2 months on the USA PATRIOT Act. The first two
hearings examined what the expiring provisions and the
permanent provisions of the Act authorized the government to do
and why they are critical to our national security.
Today's hearing will examine what the government is not
authorized to do under these provisions, dispelling the myths
and misinformation that has swirled around this law for 10
years.
Let's begin with the ``Lone-Wolf'' provision. First
proposed by Senator Schumer and Kyle in 2002, the provision was
added to the FISA definition of agent of a foreign power in the
Intelligence Reform and Terrorism Prevention Act of 2004.
Let's be clear. ``Lone-Wolf'' is simply a definition
intended to close a gap in our intelligent laws that allows
rogue terrorists to slip through the cracks. It is not a free-
standing provision. It does not create a set of surveillance
tools different from FISA. It does not allow the government to
engage in warrantless surveillance or gather any intelligence
without the approval of a FISA court. Only those tools
currently laid out in FISA--business records, roving wire taps,
and the like--can be used to target a ``Lone-Wolf''. And the
``Lone-Wolf'' definition can only be applied to non-U.S.
persons, meaning it cannot be applied to citizens or permanent
resident aliens.
Similar to the ``Lone-Wolf'' provision, the roving wire
tape authority is not a free-standing provision. It does not
authorize warrantless surveillance, nor can roving authority be
used to target an entire neighborhood or city block of people.
Since 1978, FISA has authorized court-approved surveillance for
intelligence gathering purposes.
But gone are the days of landlines and rotary phones.
Today's terrorists and spies use disposable cell phones and
free e-mail accounts to hide their tracks and to thwart
detection. So, in 2001, Congress amended FISA to allow the FISA
court to approve roving authority in certain circumstances
similar to criminal roving authority that has been in place
since 1986.
In order to use a roving wiretap, intelligence agents must
first establish, and a FISA court must approve, all of the
criteria for a traditional wiretap. These include probable
cause that the target of the surveillance is a foreign power or
an agent of a foreign power, and probable cause that the
devices being used are about to be used by a foreign power or
an agent of foreign power. Then the agents must make an
additional showing, which the FISA court must also approve,
that the actions of the target may have the effect of thwarting
their identification. With this authority, agents can monitor
modern day terrorists and spies. Without it, agents would have
to obtain a new surveillance order from the FISA court every
time a target switches cell phones or e-mail accounts and risk
losing track of him.
Despite claims to the contrary, roving authority does not
create a John Doe warrant. We know that drug dealers and gang
members often use nicknames or aliases. It should come as no
surprise that terrorists and spies do as well. It should not
surprise anyone that it may be difficult or impossible to
provide the true identity of those who engage in clandestine
underground activities in circumstances in which the identity
of a target is unknown and the government may provide a
description of the specific target. But it must provide it
description specific enough to establish probable cause that
the target of the surveillance is a foreign power or an agent
of a foreign power.
That leaves us with the business records provision. To
begin with, business records orders are not--and I repeat--are
not national security letters. PATRIOT Act critics often join
the two together in an effort to transfer NSL concerns to
business records. National security records are administrative
subpoenas; business records are FISA court orders. These orders
cannot be used to search a person's home or obtain their
personal records. They can only be used to obtain third party
records, such as hotel or car rental records.
Perhaps the biggest myth that we just dispel here today is
with the death of Osama bin Laden, we no longer need the
PATRIOT Act. Nothing could be further from the truth. Just last
week, Al-Qaeda released a statement saying it will continue to
plan and plot ``without any fatigue, boredom, despair,
surrender, or indifference.'' It is clear that Al-Qaeda has not
backed down, and neither should we as the United States of
America. That's why last week I introduced legislation to
permanently reauthorize the ``Lone-Wolf'' definition and extend
for 6 years the sunsets for roving and business records
authority.
It is now my pleasure to recognize for his opening
statement the Ranking Member of the Subcommittee, the
distinguished gentleman from Virginia, Bobby Scott?
Mr. Scott. Thank you, Mr. Chairman.
Today's Subcommittee meets again to discuss the provisions
of the USA PATRIOT Act, and I believe it is appropriate that we
thoroughly examine these controversial provisions. And I thank
you for holding a series of hearings that you have been holding
so that we can fully understand exactly what these provisions
are.
Each time we allow law enforcement greater power to access
private communications or look at records regarding private
activities, we give up something important. Piece by piece we
may not notice it, but we may wake up one day and ask, where
did our freedoms go?
There is no doubt that we entrust our law enforcement
officers at all levels with awesome responsibility to protect
us from harm. We respect them and thank them for that, and we
work on a bipartisan basis to give them the resources and
authorities they need. However in protecting us, we must also
protect our freedoms and civil liberties, the basic principles
of our Bill of Rights underlying what it means to live in a
free country, and to define that relationship between citizens
and government.
And when we talk about government, it is not government in
the abstract. In Northern Virginia, we are talking about people
who may be our neighborhoods, lots of other people who may be
involved in these activities. So, when we say government, we
may be talking about dozens of people, or hundreds of people,
who may have access to our private conversations.
For years we've discussed roving wire taps, the ``Lone-
Wolf'' provision, and the relaxed standards for access to
business records. These provisions have expanded the
government's power to listen to personal conversations, read
confidential records, and track private movements. We may
establish procedures on how these authorities may be executed
and require a secret court to authorize some of these actions,
but those subject to the surveillance or those whose records
have been examined may never get a chance to know just how much
the government, their neighbors, and friends, or other people
who may be government employees have intruded into their lives.
It is difficult for us to conduct meaningful oversight over
provisions which are implemented in such secret conditions.
So, I welcome our witnesses, including one of our former
colleagues, a Member of the Subcommittee, the gentleman from
Georgia, Mr. Barr, and the other witnesses. I look forward to
their testimony.
Mr. Sensenbrenner. I thank the gentleman from Virginia.
I now recognize the junior Chairman emeritus of the
Committee, the distinguished gentleman from Michigan, Mr.
Conyers?
Mr. Conyers. Thank you, Chairman Sensenbrenner. It is a
pleasure to be here today and to join Bobby Scott in welcoming
Bob Barr, our former colleague from Georgia, for many years
here to the Committee room. He also served on the Judiciary
Committee, and we know we are all pleased to see him again.
Now, instead of this hearing, which is another oversight
hearing, I begin by making the point that we have not had a
legislative bill on the PATRIOT Act before the Committee for
hearing. We have had a number of oversight hearings, and what
we want to do is try to get ready with 16 days left to
determine what we are going to do on this bill.
Now, we have been having a hearing on ``The USA PATRIOT
Act: Dispelling the Myths.'' Well, that is great, but I think
that it shortchanges the real problems with a bill that we have
so little time to work on. We ought to be, in my judgment, be
working on what compromises we have to make to the PATRIOT Act
to get it through the Committee and the House and the
conference that is sure to follow. And it is in that spirit
that I make this opening statement.
We have got some work to do here. Now, there are a lot of
people that are troubled about these expiring provisions. So,
to introduce a bill that makes some of them permanent is
exactly the wrong way to go. Now, this is the Committee that
unanimously passed the first PATRIOT Act because we worked it
out on both sides. And I do not think we are following that
procedure again the way that we are going now.
And so, I have introduced a compromise measure--H.R. 18-5--
that is intended to cover this. And that compromise is a bill
to extend the sunset of certain provisions of the USA PATRIOT
Act, and that is what I would like all of my colleagues,
especially the Chairman of our Judiciary Committee and the
Members of this Subcommittee, to examine critically so that we
can work out some position that we can reach some accord on.
So, what we are dealing with now is legislation that makes
``Lone-Wolf'' authority permanent. Well, no hearings, but let
us just make it permanent because it is not that bad, all you
critics of the PATRIOT Act. If you understood it and listened
and read it, you would not feel so bad about it.
It extends the business records and roving wiretaps for 6
years. The majority's bill would make no further improvements
to the PATRIOT Act period. It includes no new protections for
privacy. It requires no reporting to Congress to the inspector
general audits or to any other oversight. And so, I do not feel
very supportive of that kind of approach.
And so, thank goodness we will be hearing from some of our
witnesses today about the serious issues raised by the 21st
century government surveillance plan.
Mr. Sensenbrenner. Will the gentleman yield?
Mr. Conyers. Of course I will yield.
Mr. Sensenbrenner. First of all, I ask that the gentleman
be given two additional minutes.
Mr. Conyers. Thank you.
Mr. Sensenbrenner. I look back at what happened in 2009,
and there was only one oversight hearing that was conducted
then. And there was a bill that was introduced, and following
that there was a classified hearing that was closed to the
public, and the Committee marked it up and sent the bill, you
know, off to the floor. I have had a very open process, both
when I was the full Committee Chairman in 2001 and 2005, and I
believe this year as well
You know, we have heard testimony on the three expiring
provisions and what they do, and this was a request for a third
open hearing on what the PATRIOT Act does not do. So, I think
we certainly have been able to hear all viewpoints on this.
And, you know, I will continue to hear all viewpoints on this,
but the time for a decision is at hand.
And if the gentleman wants to respond to that, I will be
happy, and then we can go on to the witnesses' testimony.
Mr. Conyers. Well, thank you, Mr. Chairman. What I would
like to do is finish my opening statement, and I do not choose
to respond to it.
So, what I hope--and I am sorry I did not see my
Subcommittee Chairman or my Judiciary Committee Chairman--on
the floor yesterday. I was not able to get there because I
wanted to alert you to what this discussion was going to be
like from my chair today.
So, it is unfortunate, from my point of view, that we have
not had more negotiations or discussions that may more quickly
lead to a bipartisan compromise. Many Members on both sides of
the aisle have serious concerns about the PATRIOT Act,
including these three provisions that are about to expire.
While some Members will judge that they cannot support any
reauthorization, others may be open to compromise. Indeed, two
inform these negotiations, I have introduced, by the bipartisan
compromise measure that has been reported out by the Senate
Judiciary Committee, and which has the full support of the
intelligence community.
Now, at an earlier hearing of this Subcommittee, the
Assistant Attorney for National Security and the General
Counsel for the Director of National Intelligence, both stated
their support for this compromise. Both. General Counsel Bob
Lipp said that this was the kind of measure that, ``...would
provide enhanced protection for civil liberties without
affecting operational utility.''
Can I have some additional time, Mr. Chairman? I yielded to
you.
Mr. Sensenbrenner. But I did not use the whole 2 minutes.
How much additional time does the----
Mr. Conyers. Well, if you do not want to grant it----
Mr. Sensenbrenner. How much do you want?
Mr. Conyers. I want to finish my opening statement.
Mr. Sensenbrenner. I ask unanimous consent the gentleman be
given two additional minutes.
Mr. Conyers. Well, thank you for your generosity.
What we are doing is trying to make meaningful improvements
in important legislation, and what I am proposing in the bill,
Chairman Sensenbrenner, is to remove the over broad
``presumption of relevance'' in Section 215 cases. Instead,
require a detailed written statement of the facts and
circumstances supporting the request for a Section 215 order in
every case.
We also have a provision to offer greater protection to
library and book seller records. In addition, we tighten up the
use of NSLs and reform the gag orders that were struck down as
unconstitutional by the 2nd Circuit Court of Appeals. And
finally, it puts in new reporting and audit requirements.
For many, or for some, this bill will not go far enough,
but for others it may go too far. For me, the bill represents a
reasonable compromise. And with the short time that we all know
that we have, and with the need to find a measure that can win
the support of the other body and the Administration, I think
this bipartisan compromise measure is the proper vehicle for
moving this issue forward.
In any event, I appreciate that we are not here today for a
legislative hearing. Instead, we are holding another general
oversight hearing, this one called ``Dispelling the Myths''
about the PATRIOT Act. This title, of course, raises a
question. If the majority has already concluded the concerns
about the PATRIOT Act are myths, then why is the hearing
necessary? It seems like they have already made up their mind.
And I will submit the rest of my statement, and thank you,
Chairman Sensenbrenner.
[The prepared statement of Mr. Conyers follows:]
__________
Mr. Sensenbrenner. Without objection, other Members'
opening statements will be made a part of the record.
And without objection, the Chair will be authorized to
declare recesses during votes on the House floor.
It is now my pleasure to introduce today's witnesses.
Patrick Rowan is a partner in McGuire Woods in Washington,
D.C., where he practices in the Government, Regulatory, and
Criminal Investigations group. Before joining McGuire Woods, he
spent 18 years in the Department of Justice serving as an
assistant U.S. attorney in Washington, then as acting deputy
general counsel for the FBI's national security law branch. And
in 2004, he became senior counsel to the assistant attorney
general in charge of the criminal division, where he assisted
in the management of all counterterrorism investigations.
Excuse me. In 2006, DoJ established the national security
division, which consolidated its law enforcement and
intelligence activities on counterterrorism and
counterintelligence matters. Mr. Rowan served first as the
division's principal deputy assistant attorney general, and
then as its assistant attorney general.
He received his law degree from the University of Virginia
in 1989 and his undergraduate degree from Dartmouth College in
1986.
The Honorable Bob Barr represented the 7th District of
Georgia in the U.S. House of Representatives from 1995 to 2003,
and was the 2008 Libertarian Party nominee for President of the
United States.
He practices law in Atlanta, Georgia, and he is of counsel
with the Law Offices of Edwin Marger. He runs a consulting
firm, Liberty Strategies, Inc., which is also headquartered in
Atlanta, and is a registered mediator and arbitrator.
Mr. Barr was appointed by President Reagan as the United
States attorney for the Northern District of Georgia in 1986,
and served as president of the Southeastern Legal Foundation
from 1990 to 1991. He was an official with the CIA from 1971 to
'78, and additionally, he served as an official member of the
U.S. delegation at several major United Nations conferences.
He received his law degree from Georgetown University, his
master's degree from the George Washington University, and his
bachelor's degree from the University of Southern California.
Mr. Bruce Fein is a constitutional lawyer, scholar, and
writer. He has served as a visiting scholar for constitutional
studies at the Heritage Foundation and adjunct scholar at the
American Enterprise Institution, a guest lecturer at the
Brooking Institution, and an adjunct professor at the George
Washington University in Washington.
He was appointed as research director for the House
Republicans on the Joint Congressional Committee on Covert Arms
Sales to Iran from 1986 to 1987, and was general counsel of the
Federal Communications Commission from 1983 to 1984. From 1981
to 1982, he served as the associate deputy attorney general in
the Department of Justice and supervised the Department's
litigation and vetting of candidates for the Federal judiciary.
From 1975 to '76, he served as the assistant director in the
Office of Legal Policy at DoJ, where his primary duties
concerned legislative initiatives, aimed at upgrading the
administration of Federal justice. Prior to his work in the
Office of Legal Policy, he served as special assistant to the
assistant attorney general for the Office of Legal Counsel from
1973 to 1975, then he graduated with honors from Harvard Law
School in 1972.
Sergeant Edward D. Mullins has been a member of the New
York City Police Department since January 1982. On July 1,
2002, he was elected president of the Sergeant's Benevolent
Association of New York City, one of the largest police unions
in the Nation with more than 11,000 members.
Early in his career, he was assigned to the 13th Precinct
on Manhattan's East Side. After nearly 10 years, he was
promoted to detective and assigned to the 10th precinct in
Manhattan's Chelsea area. Promoted to sergeant in 1993, he was
assigned to the 19th precinct on Manhattan's Upper East Side,
and subsequently transferred to the detective bureau in
Brooklyn South, where he served as the violent crime supervisor
in the 67th Precinct Detective Squad, Special Victim's Squad,
and the King's County District Attorney's Office.
He has a bachelor's degree from Concordia College and a
master's degree in organizational leadership from Mercy
College.
Each witness will be recognized for 5 minutes to summarize
their written statement.
And the Chair now recognizes Mr. Rowan for 5 minutes.
Could you turn the PA on and bring the mic a little bit
closer to you, and we will reset the clock?
TESTIMONY OF J. PATRICK ROWAN, PARTNER,
McGUIRE WOODS LLP
Mr. Rowan. Thank you. Chairman Sensenbrenner, Ranking
Member Scott, and Members of the Subcommittee, thank you for
inviting me to testify today.
My name is Patrick Rowan, and I am currently a partner in
the law firm of McGuire Woods, but prior to joining the firm in
2009 I worked at the Department of Justice for 18 years,
including at the FBI's office of General Counsel, the Criminal
Division, and the National Security Division.
During this period I had the opportunity to work with FBI
agents and DoJ lawyers who dedicated their days and nights to
countering the national security threats that face our country.
In this work, the investigative tools drawn from the PATRIOT
Act were regularly deployed in the service of our national
security.
Even though the provisions of the PATRIOT Act have been
repeatedly and successfully used in national security
investigations over the last nine and a half years, the Act
remains somewhat controversial. While there is great value in
the ongoing national dialogue about the balance between
national security and liberty, I believe that at least some of
the continuing concern about the PATRIOT Act stems from
misconceptions that have grown up around the Act. Accordingly,
I appreciate the opportunity to appear before this Committee to
address some of those misconceptions.
I want to talk specifically about the three provisions that
are scheduled to sunset this month--the roving surveillance
provision, the business records provision, and the ``Lone-
Wolf'' definition. Each requires the government to make a
showing to an independent court--the FISA court. Each provision
comes with rule governing how the government handles
information regarding United States persons, and each is
subject to extensive executive branch oversight, as well as
congressional reporting requirements, all of which is to
suggest that they are not particularly susceptible to misuse in
any way.
The government's most recent statements indicate that the
``Lone-Wolf'' definition has never been used, let alone abused.
The two other tools which have been used hardly represent
radical incursions on civil liberties as these tools were
recognized as available for ordinary criminal investigations
long before 9/11.
Some apparently believe that the government uses these
national security tools to make an end run around the judiciary
and the protections that surround our criminal justice system.
I think that notion overstates the protections on the criminal
side and understate the protections on the national security
intelligence gathering side. For example, a FISA business
records order is used to obtain the same records that can be
acquired with a grand jury subpoena. As a Federal prosecutor, I
issued grand jury subpoenas to specific individuals and
organizations with virtually no oversight and no meaningful
judicial review. Because those records were acquired in the
course of a grand jury investigation, the person to whom those
records pertained was ordinarily not aware that the government
had obtained them. Those records did not necessarily relate
directly to the target of the investigation. For example, in a
fraud or bribery investigation, it would certainly not be
unusual to seek records relating to the target's girlfriend to
determine if her activities had some relation to the target's
crimes. If the grand jury did not return an indictment or the
charged offenses were not connected to the girlfriend's
activities, the girlfriend would likely never learn that her
records had been subpoenaed.
To employ the FISA business records provision, the
government must apply to an independent court and demonstrate
relevance in order to obtain a court order under the provision.
There are heightened protections when investigators seek
materials that are considered especially sensitive, such as
medical records and records from libraries.
If the target of the investigation is a U.S. person, the
government must show that the investigation is not based solely
on activities protected by the First Amendment. Moreover, the
government must adhere to minimization procedures that limit
the retention and dissemination of the information that is
obtained concerning U.S. persons. And the government must also
report to Congress on the use of this tool.
To the extent that one assumes that criminal investigative
tools are used with greater care because investigators
understand that they will eventually have to defend their
actions in court, one must keep in mind that national security
investigations, intelligence investigations, often result in
prosecutions as well. Agents know that even the most sensitive
national security investigation may ultimately end up in a U.S.
court where the investigative techniques will be scrutinized.
This is particularly true when the investigations target a U.S.
person. Agents understand that the most obvious and effective
tools for neutralizing a U.S. person who threatens our security
is a Federal criminal prosecution, and they make decisions
about the use of investigative tools with that principle in
mind.
Let me talk for a minute about the ``Lone-Wolf''
definition. The government recently indicated that it has never
had occasion to use the ``Lone-Wolf'' definition, which was
contained in the Intelligence Perform Terrorism Prevention Act
of 2004. And there are some that argue that the non-use of the
definition demonstrates this provision is unnecessary and that
it should be allowed to expire. I do not subscribe to this
logic. The mere fact that I have never had occasion to use my
spare tire does not mean that I would prefer not to have one in
my car. The availability of radicalizing material on the
Internet seems to be producing more and more individuals who
form the intention to carry out violence on their own without
the aid and support of a terrorist organization.
These are circumstances for which the ``Lone-Wolf''
definition was created. If and when the need for the ``Lone-
Wolf'' definition arises, it should be available to the FBI and
their partners at NSD. Valuable time and resources might be
wasted in trying to engineer our work around for the lapsed
definition.
Many of those who are concerned about the PATRIOT Act seems
to think that the judges of the FISA court are rubber stamps
from the government, that these judges approve everything that
there is to approve and impose no meaningful check on the
government. From personal experience, I can tell you that
simply is not true. And I will be happy to answer further
questions about the court and the other provisions that we are
here to discuss today later on in the hearing.
Thank you, Chairman.
[The prepared statement of Mr. Rowan follows:]
__________
Mr. Sensenbrenner. Thank you very much. The gentleman's
time has expired.
Mr. Barr?
TESTIMONY OF THE HONORABLE BOB BARR, A FORMER REPRESENTATIVE IN
CONGRESS FROM THE STATE OF GEORGIA
Mr. Barr. Thank you very much, Mr. Chairman and Ranking
Member Scott, Chairman Conyers, and Members of the Subcommittee
and the Judiciary Committee. It is an honor to be here to
discuss an Act that was passed with my vote back in 2001, but,
as with many Members on both sides of the aisle who voted for
it, not without very serious reservations, which is one of the
reasons why we placed in the USA PATRIOT Act at the time a
number of sunset provisions. Those were placed in there not
simply to provide an opportunity to re-up the provisions
regardless of whether they were ever used, whether they were
necessary, whether they had been abused, but in order to
provide a meaningful mechanism for the Congress of the United
States to properly and regularly reevaluate whether or not
these provisions, like any provisions of law, are necessary,
need to be limited, need to be expanded perhaps, or are no
longer necessary because they have been abused by the executive
branch. This is both a very conservative view of government as
a well as a very liberal view. It does not apply to one side of
the aisle as opposed to the other. In other words, Members on
both sides of the aisle should never be afraid to go back and
reevaluate a law that was voted for that they might have voted
for in earlier times based on exigent circumstances, so to
speak, and the needs of the time, but which, with the passage
of time and with evidence that the provisions either have been
abused or require additional limitations and restrictions, need
to be amended. And if that is indeed the purpose of this
hearing, then I commend the Chairman for that and hope that all
Members will approach it in that light.
It is very difficult, as this Committee knows, to really
get at the issues contained in the PATRIOT Act. There is a
feeling or a presumption on the part of the American people
that whatever is necessary to protect the national security is
okay with them and should be done. Of course, we on the--you on
the Judiciary Committee and we as officers of the court and the
private arena or sworn law enforcement officers--know that the
job of the President is not to do whatever is necessary to
protect national security. The job of the President is in his
oath, is to protect and defend the Constitution of the United
States of America. And that includes what Justice Brandeis said
many years ago, and which is as true today as it was back in
the 1920's when he penned the words that the right to privacy,
which is essentially embodied in the Fourth Amendment, as the
basic privacy protection for the people of this country, those
who are here lawfully as well as citizens, of this country, is
the most basic of right. It is the most important thing to be
protected in our Nation. It is, as Ayn Rand said a number of
years later in The Fountainhead, the right to privacy is what
defines civilization. It defines freedom. And where we have
provisions, such as some of these provisions in the PATRIOT
Act, as well intended as they are, infringe those rights with
no necessary countervailing requirement in the government that
the right to privacy be so suspended.
It is important to go back and place limitations. For
example, simply require in these provisions that you all are
looking at--Section 215, for example, the business records--
provision simply require what the Constitution requires, and
that is a reasonable link between the person, be it citizen or
other person, lawfully in this country against who the
government is seeking information, whether it is tangible
things, tangible items, or business records, whatever it is, at
least give that person the benefit of requiring the government
to show a reasonable connection--some connection to illegal
activity, to terrorist activity, to a known or suspected
terrorist, or even a known or suspected associate of a
terrorist--something that gives that person, whether they ever
know about it or not. That is a red herring. It does not matter
whether a person knows that their rights have been violated
that is the gauge by which we determine whether a provision
should be continued in law is constitutional. And it ignores
it, a requirement that the citizenry of this country come
before the courts or the Congress or the President and document
abuses, nor is that the criteria for determining the
constitutionality of a particular law. It is whether or not it
comports with the intent and the spirit of the Constitution and
provision of the law, such as those you are looking at here
today and tomorrow and on which the House will shortly vote,
violate those basic provisions because they have broken the
link between a citizen of this country or a person in this
country's right to privacy, and a reasonable suspicion that
they may have done something wrong.
Mr. Sensenbrenner. The gentleman's time has expired.
Mr. Barr. That needs to be restored. Thank you, Mr.
Chairman.
[The prepared statement of Mr. Barr follows:]
__________
Mr. Sensenbrenner. Mr. Fein?
TESTIMONY OF BRUCE FEIN, CAMPAIGN FOR LIBERTY
Mr. Fein. Thank you, Mr. Chairman and Members of the
Subcommittee.
I would like to amplify on my prior colleague's statement
about liberty and go back to first principles, because I think
we have turned them on their head in discussing the PATRIOT
Act, national security, and otherwise.
Now, as Thomas Paine who wrote, ``It's the duty of the
patriot to protect his country from his government,'' and it is
in that spirit I wish to address the PATRIOT Act, because it
seems to me its fundamental principles are upside down.
This country's bedrock birth certificate was placing the
liberty of the individual above the powers of government. The
Declaration of Independence, we are all born with unalienable
rights. We are endowed with our Creator with a right to
liberty. And the purpose of government is to secure those
rights. The purpose of government is exhausted after it secures
those rights.
And these were not marginal to the fight for our
independence from Great Britain. James Otis in 1761 deplored
the British general writs of assistance because they did not
require probable cause or particularity in searching persons'
homes. And it was John Adams who said that was the bell that
sounded the independence march of the United States of America.
And it's Patrick Henry who is noted for saying, what, ``Give me
liberty or give me death,'' not give me liberty, but give me
bigger government to protect my liberty.
And I underscore these things to emphasize that where you
start in asking the question determines where you end nine
times out of 10, why that is so important. And the Founding
Fathers did not cherish the right to be left alone just as an
intellectual abstraction. It was Justice Louis Brandeis who
wrote in 1928, ``The architects, the makers of the
Constitution, venerated man's spiritual nature, his moods, and
his intellect. They sought to protect Americans in their
beliefs, their attitudes, seclusions, and challenges to
conventional wisdom. They crown citizens with the right to be
free from government encroachments, the hallmark of every
civilized society.'' And he concluded, ``Every unjustifiable
intrusion by the government upon the privacy of the individual,
whatever the means employed, must be deemed a violation of the
Fourth Amendment.''
Now, it is has been said by many, well, where are these
court decisions, saying the PATRIOT Act is unconstitutional.
There have been a few, but I can see there are few. But the
Supreme Court and courts err. In the opinion I was quoting from
Justice Brandeis, the court then held conversations were not
even protected by the Fourth Amendment, that the government
could wiretap and surveil free from any restraints because
conversation was not in the text of the Fourth Amendment that
addressed persons, houses, papers, and effects. Thirty-nine
years later, the Supreme Court reversed.
And we all remember it was this body in 1988 told the
Supreme Court during World War II, they got it wrong when they
said, you could use race-based concentration camps for
Japanese-Americans. Courts can get it wrong. The Supreme Court
itself has reversed perhaps 200 times bedrock constitutional
principles. So, we should not be complacent with the fact that,
well, where are the courts out there?
Moreover, there are reasons why there would not be a
plethora of suits challenging the PATRIOT Act. Number one, a
former attorney general said, to criticize the Act was to aid
and abet enemies in terrorism. There is a climate out there
that if you challenge the government on the PATRIOT Act, you
are then unpatriotic. You then deserve a opprobrium, and that
has been true with many who defended those who were detained at
Guantanamo Bay. That is not the United States of America that
was born in 1776. Remember John Adams? He defended the British
soldiers accused in the Boston Massacre. He defended them. He
did not say, well, this is time when we have to be angry at
Great Britain. Due process is out the window. That explains why
you do not have a mushrooming number of lawsuits, aside from
the fact that in intelligence collection, the target of the
investigation is never alerted as they are in a Title III case.
How would they know that there is a violation? There is just a
huge database, and the fact that the database exists is an
abuse of itself.
Now, I want to address specifically the idea, the need to
gather just intelligence on Americans because need to protect
against international terrorist. Harlan Fiske Stone was
appointed attorney general in 1924. He was later appointed
Chief Justice of the United States, and he shut down all--all--
of the FBI's intelligence collection methods. He said, we have
to limit this to law enforcement only. There had been abuses.
He styled what the Bureau is doing as tyrannical. So, that is a
red herring, in my judgment.
The United States lived securely for over 100 years without
just intelligence collection in databases, and I think we can
do that today. Probable cause to suspect of crime or the
discovery of evidence of crime? Of course the government can
seek that kind of evidence. But this is a free country, and the
fact that we have limited government, just as Robert Jackson
said, does not mean we have weak government. And this is very
important. Justice Jackson, of course, was a prosecutor at
Nuremberg in addition to being on the United States Supreme
Court. And if you would indulge me, let me read his opinion
here, because I think----
Mr. Sensenbrenner. The gentleman's time has expired.
Mr. Fein. All right. Well, thank you.
[The prepared statement of Mr. Fein follows:]
__________
Mr. Sensenbrenner. Mr. Mullins?
TESTIMONY OF ED MULLINS, PRESIDENT,
SERGEANTS BENEVOLENT ASSOCIATION OF NEW YORK
Mr. Mullins. Mr. Chairman, Ranking Member Scott, and
Members of the Subcommittee, thank you for having me here
today. I am here as the head of a police labor organization
representing my members and their family. I also speak with the
perspective of a sworn law enforcement officer with 30 years of
experience.
I responded to the scene of the terrorist attacks on
September 11th, 2001. I also responded in 1993 to the
terrorists' first attempt to topple the Twin Towers.
I am a third generation New Yorker whose life was forever
changed by the terrorist attacks of 9/11. These unprovoked
attacks devastated New York City and the ranks of its fire and
police departments. The 2,973 innocent men, women, and children
killed on 9/11 surpassed the death toll America suffered in the
surprise attack on Pearl Harbor that triggered our entry into
World War II.
Sadly, the final casualty figures from 9/11 are not yet
known. Those terrorist acts continue right up to the present
day to claim the lives of more firefighters, police officers,
construction workers, and ordinary citizens who were caught in
the events of that fateful day. These are the people who, in
the years after 9/11, have developed debilitating illnesses and
died from their exposure to the toxins released when the World
Trade Center Towers collapsed.
The James Zadroga 9/11 Health and Compensation Act, passed
late last year to help discontinue victims, is a stark reminder
that while justice has been served on bin Laden, innocent
Americans continue to die and suffer as a result of his evil.
The USA PATRIOT Act was enacted in direct response to these
terrorist attacks for the purpose of preventing any repetition.
I appreciate the chance to help clear up some of the myths
surrounding the deliberations over whether to reauthorized
three specific expiring PATRIOT Act authorities. Let me begin
by setting aside the false clarities and simplicity that seek
to impose on these deliberations.
Reauthorizing these authorities is not a stark choice
between whether we place a greater value on our civil liberties
than our security. It is not a choice between freedom and a
police state. Let us not lose sight of how much alike every one
of us in this room today really is. We share the same values.
We are all Americans who love our country and the liberties
upon which it is founded. We all hate seeing our fellow
citizens slaughtered by bin Laden's demented disciples. None of
us desire or intend to extinguish liberty in the pursuit of
security. We only differ as to how, not if, our elected
representatives should strike a balance between the universal
value of protecting innocent lives from murderers and our
uniquely American notion of individual liberty.
Reauthorizing the three provisions set to expire later this
month strikes the right balance. By any historical yardstick,
these authorities are a measured response to an unprecedented
and undeniably real threat to our Nation. A generation learned
from struggles, the heroes of our past encountered imbalance in
liberty and security while reacting to the unprecedented
threats. We did not respond by rounding up and committing to
internment camps all members of the ethnic and religious
minorities from which the perpetrators of 9/11 were descended.
We did not grant law enforcement wholly unprecedented powers
never before entrusted to police on our shores. What we did was
to extend the Federal agents hunting terrorist powers analogous
to those that state and local enforcement have long used to
investigate drug dealers, burglars, and other common criminals.
In closing, let me dispel one final myth. We can let our
guard down and permit these authorities to sunset because bin
Laden is dead. The Pakistani Taliban, which was behind last
year's attempt to bomb Time Square, has vowed revenge. They
have bragged, ``We already have our people in America and are
sending more.'' Do not allow our recent success to obscure the
fact that 10 years ago in less than 2 hours we lost more
Americans at the hands of bin Laden's henchman than we did
almost 70 years ago on the Island of Guadalcanal.
Our enemies are more desperate than ever to replicate this
horror. A generation faces an unprecedented threat from a new
kind of foe. Still, we are very fortunate. Responding to the
great crisis of our age does not require drafting citizens to
fight. It has not necessitated the conversion of our economy to
wartime footing. There is no rationing of fuel, food, and other
resources. Citizens are not even asked to buy war bonds. It is
a testament to America's strength that most citizens can go
about their lives much as they did before 9/11 and delegate
defeating the terrorists who declared war on us to a relatively
small group of volunteers.
As cops, my members are among those volunteers. We pray
that as you debate the tools available to our Federal
counterparts that played a critical role in this mission, they
will be pragmatic in balancing the defense of our Nation with
the preservation of the freedoms we cherish. We hope that you
will not be seduced by rigid ideologies that demand the
sacrifice of one of the fundamental values of another.
As you know, this week is Police Week in our Nation's
capital. As we recognize all those officers who made the
ultimate sacrifice, I beg that you do not disarm those sworn to
protect you at a time when our enemies are bringing a renewed
fervor and new tactics in their efforts to murder Americans.
[The prepared statement of Mr. Mullins follows:]
__________
Mr. Sensenbrenner. Thank you very much, Sergeant.
The Chair will now recognize Members alternatively by side
for 5 minutes to ask questions of the members of the panel. And
the Chair has made note of the approximate order in which
Members have appeared, and will use that list in terms of
recognizing folks.
And the Chair recognizes himself for 5 minutes.
Mr. Barr, you voted in favor of the PATRIOT Act when it was
considered in the Committee, and then you voted in favor of
another version that was less favorable to civil liberties when
it appeared on the floor in October of 2001. The Committee has
done extensive oversight under both Republican and Democratic
control. Why do you think we failed, and why are you opposing
just a simple extension of what has been the law since 2005 in
these three areas given your votes in favor of it?
Mr. Barr. I certainly, Mr. Chairman, would not deign to try
and speculate on what Members have done or not done or why. I
can certainly speak for myself.
Yes, I did vote both for the better version more protective
of civil liberties that was reported out unanimously by the
full Judiciary Committee. Subsequent to that, when a very
different bill came to the floor, I had several conversations,
including some personal ones, with the Attorney General and
some other members of the Department of Justice with regard to
certain promises or assurances that the provisions in the
PATRIOT Act then to be voted on would be used in certain ways
for certain investigations that were indeed important national
security terrorism related investigations. There were promises
made that the executive branch, the President and the Attorney
General, would report regularly and openly and extensively on
the use of the PATRIOT Act.
Mr. Sensenbrenner. Oh, I think they did that after you left
the Congress. As a matter of fact, there was one time I
cancelled a hearing of Attorney General Ashcroft because he
didn't submit his testimony on time. So, you know, maybe we
were busy doing something else.
Let me ask you another question. There was an outstanding
warrant against Osama bin Laden. You condemned the President
for sending a U.S. military unit to strike and kill him when
the civilian justice system was waiting to grind slowly away at
him?
Mr. Barr. No, I think this was one of those instances in
which the resolution the use of military force does provide and
did provide proper authority for the presidential action of
taking out Osama bin Laden.
Mr. Sensenbrenner. Okay. But should not the President have
used what you refer to as tried and true methods of capturing
what you call a criminal-like bin Laden, like pursuant to an
arrest warrant?
Mr. Barr. No, simply because an individual can be pursued
either through the criminal justice system or militarily in
certain circumstances does not make it improper to choose one
over the other. And in this instance, I think the President
chose wisely and properly, and it was properly authorized by
the Congress, unlike some of the other actions by the current
and former Administration using the resolution for the use of
military force which does not provide proper authority.
Mr. Sensenbrenner. The PATRIOT Act was passed after 9/11.
Do you think the U.S. attorneys of New York, New England, and
Washington, D.C. could have prevented the 9/11 attack by using
traditional law enforcement methods?
Mr. Barr. Certainly not being privy to all of the
information that they had or did not have or the circumstances
under which certain acts were authorized or not authorized, it
does seem to me that there was more than sufficient authority
to have given us--the U.S. government, that is--a much greater
chance, likelihood of having prevented the attacks had those
proper preexisting authorities been used. They were not used.
Mr. Sensenbrenner. Well, the PATRIOT Act repealed the wall
that prevented the FBI and the CIA from exchanging information.
So, if the CIA knew that there were Al-Qaeda terrorists loose
in the United States and, specifically, in the New York City
area, it would have been a violation of the pre-PATRIOT Act law
for the CIA to walk that information across the hall and give
it to the FBI.
Mr. Barr. Not necessarily.
Mr. Sensenbrenner. Oh, yes, it would have. Yes, it would
have. Yes, it would have been.
Mr. Barr. And on circumstances under which it was required,
Mr. Chairman.
Mr. Sensenbrenner. Well, if the circumstances were, you
know, that they acquired it overseas and then they found out
that they appeared in New York, it was still giving them
intelligence that they had found overseas. And the 9/11
Commission determined that the wall prevented that, and they
studied it extensively for a couple of years.
Mr. Barr. Well, we also now know, and with hindsight, that
the--is the 19th or 20th hijacker--I forget the number--that
had the government gone before a court and sought a warrant to
access that person's computer, which a court, based on the
circumstances we know now existed at the time, almost certainly
would have granted a warrant. The fact of the matter is, the
government chose not to do that. They made a policy error. It
was not that the law did not allow it. They made a policy
error.
Mr. Sensenbrenner. Well, you know, from what I have heard
you say, I think that you are advocating that before 9/11, the
FBI would have violated the law that that was put up by the
Church Commission if they ended up exchanging intelligence
information. And as a result of the PATRIOT Act, we do not have
that any more.
The gentleman from Virginia, Mr. Scott?
Mr. Scott. Thank you, Mr. Chairman.
One of the problems with the PATRIOT Act is understanding
exactly what it does. And so, Mr. Rowan, let me ask you a
question. In declaring someone to be a ``Lone-Wolf'', where you
can begin surveilling them, what information and what standard
is there that you would not be able to get a run of the mill
criminal warrant?
Mr. Rowan. Congressman, as you know, the FISA statute, with
respect to the ``Lone-Wolf'' definition, talks about an
individual engaged in activities relating to terrorism or
preparation therefor. So, potentially you could think of
circumstances where an individual was engaged in preparation
for terrorist activities, and yet an Article III judge looking
at it from a criminal law enforcement perspective might
determine that there is not probable cause.
But I agree with the thrust of your question, which is that
most of the circumstances one can conceive of would also
describe a crime that you could obtain a Title III wiretap
under.
Mr. Scott. Okay. Let me ask the same question about
business records. You've suggested it is the kind of same as
criminal. What kind of investigation could you get business
records under PATRIOT Act that you cannot get them under a
regular criminal warrant?
Mr. Rowan. Well, when you say a warrant, I presume you mean
a grand jury subpoena. Certainly, a----
Mr. Scott. Well, whatever the warrant, grand jury subpoena,
or however else you want to get it.
Mr. Rowan. Yeah. No, I think you are right, that you could
get all those tangible things with a grand jury subpoena. The
critical difference is obviously not what you can get, but the
circumstances under which you can get it. If you get it under a
business records under FISA, you have the opportunity to gather
it covertly, to use it for an intelligence investigation with
far less risk that your investigation is going to be exposed.
Mr. Scott. And if you get it with a criminal warrant, you
cannot keep it secret?
Mr. Rowan. You cannot. I mean, with a grand jury subpoena,
you are in a position when it hand it to a third party
custodian. That custodian has every right and opportunity to
turn around and share it with whoever else he or she cares to
include in the target.
Mr. Scott. And you cannot have an order prohibiting the
dissemination of that information in the criminal court?
Mr. Rowan. I think what conventionally occurs is an AUSA
will write a letter. They will request the third party
custodian not to share the information. The actual getting an
order from a judge, there may be circumstances under which you
can obtain that. I think there are some judges that would
provide it, others that might not.
Mr. Scott. Roving wiretap--who gets to approve it, and
after approval, what kind of oversight is there that is
different under the PATRIOT Act that you cannot do in a normal
criminal warrant?
Mr. Rowan. Well, a roving wiretap is obviously a FISA
wiretap, so the approval mechanism----
Mr. Scott. Well, no. Under FISA, you have to designate it
to be roving rather than kind of a stationary wiretap, or all
wiretaps under FISA roving wiretaps?
Mr. Rowan. No, they are not all roving wiretaps. The way it
kicks in is when you are asking the court--the FISA judge--what
sort of orders you are going to need, and that is when the
circumstances under which you described this as being an
occasion where you need a roving wiretap. So, the approval
mechanisms there, both within the Department of Justice, they
are higher for a roving wiretap in a FISA context than you
would have in an ordinary Title III wiretap. The approval with
respect to the judiciary is going to be the same thing. It is
going to be an Article III judge, and one of them happens to
sit on the FISA court, the other does not.
Mr. Scott. Once you get personal information subject to
surveillance, exactly how many people have access to that
information?
Mr. Rowan. When you say surveillance, you mean in the FISA
world.
Mr. Scott. Yeah, in the FISA world, you got a FISA wiretap.
In Northern Virginia, a lot of people work for the
``government.'' How many people get access to the private
information that you have listened into?
Mr. Rowan. As you know, in the FISA statute there are a
requirement for minimization procedures, which are procedures
that are approved by the FISA court, which restrict the
government's dissemination of information. With the respect
to----
Mr. Scott. Well, the whole point of this is for the FBI to
talk to the CIA, to talk to everybody else. I mean, how many
people get access to this information?
Mr. Sensenbrenner. The gentleman's time has expired.
Gentleman from California, Mr. Lungren?
Mr. Lungren. Thank you very much, Mr. Chairman, and thank
you for these hearings.
Mr. Fein, you and I have been on the same side of arguments
before, but we find ourselves on the opposite side of the
argument this time. You make a statement that I hope is an
overstatement, where in your written testimony you say that
repealing the PATRIOT Act would honor what the Americans who
fought in the Civil War begot. Do you really favor repealing
the entire PATRIOT Act, even that section which dismantled the
so-called wall between law enforcement intelligence that the 9/
11 Commission indicated was one of the major vulnerabilities
that we had, and one of the reasons why we could not connect
the dots so that we might be able to prevent the kind of
attacks that we saw on 9/11?
Mr. Fein. I believe that the 9/11 Commission concluded that
the 9/11 abominations would have been thwarted if the so-called
wall of separation had been absent. And I believe Jamie
Gorelick, who was on the 9/11 Commission, who was deputy
attorney general, I believe, when the alleged wall of
separation was erected, denied that there really was that wall.
And I do not believe that in passing the USA PATRIOT Act, that
this Congress made a finding that if the wall was not erected,
9/11 would not have occurred.
Mr. Lungren. My question, though, is do you really favor
repealing the entire PATRIOT Act?
Mr. Fein. What I stated in the testimony, Mr. Congressman,
was that the burden is on the government in this country to
demonstrate the need and urgency to compromise the customary
probable cause to suspect crime to endow government with
authority----
Mr. Lungren. So, you think the probable cause to suspect a
crime is sufficient to give us the kind of information
necessary to find out about the possibility of a terrorist act
and thwart it before it is carried out. You think the criminal
law intelligence, criminal law procedures that we have talked
about are sufficient to do that?
Mr. Fein. I believe the Constitution places the burden on
government, when it wants to encroach on liberties to be
justified.
Mr. Lungren. No, I understand that. But what I am saying--
--
Mr. Fein. And so, the burden----
Mr. Lungren [continuing]. Are you telling us what we have
are sufficient to thwart terrorist attacks as opposed to
gathering the evidence after in fact is has occurred to be able
to convict those who may be involved in it?
Mr. Fein. Well, first of all, you can gather evidence
before any attack has concurred under the conspiracy laws. As
you well know, conspiracy can reach before you come close to
even getting that attempt.
Secondly, I have stated that if this Committee can
establish by empirical evidence, make a finding that these
powers are indispensable to preventing a terrorist attack, then
you have a justification for breaching the wall. But I do not
have----
Mr. Lungren. Okay. So, do you have confidence in this
Committee that we could make such a finding?
Mr. Fein. Ordinarily findings should not be made out of
trifles lai desaire, meaning you have got to define based upon
evidence----
Mr. Lungren. Well, I guess your answer is no. I guess you
do not trust us to be able to make that finding.
Mr. Fein. No, I expect there to be empirical evidence with
the experts who would state, yes, if we had this power, this
particular investigation would have reached fruition and then
blocked a terrorism act, and otherwise could not have happened.
Mr. Lungren. Well, the predicate----
Mr. Fein. Those decisions are made all the time.
Mr. Lungren. The predicate for wiretaps is not that a crime
is being committed, but that surveillance is necessary because
the person to be surveilled is a foreign power or agent of a
foreign power. It does not mean that they are involved in a
crime at that point in time? Do you not think that is a
sufficient basis for being able to have a wiretap?
Mr. Fein. I think that Title III does require suspicion of
implication in crime, and I think that ought to be the
standard.
Mr. Lungren. So----
Mr. Fein. That is the standard that Harlan Fiske Stone,
Chief Justice----
Mr. Lungren. I understand.
Mr. Fein [continuing]. And former attorney general adopted
for the----
Mr. Lungren. So, you are saying that we do not have the
right to spy on foreign powers in our own country unless we
have evidence that they are about to ready to commit a criminal
act.
Mr. Fein. Now, if you are spying on citizens on the United
States or people that are here lawfully, that is one thing. It
is something else if you are spying on diplomats who are
involved in embassies or otherwise. They are not loyal to the
United States. They do not have the same protection.
Mr. Lungren. And the definition of a U.S. person in this
Act is, someone who is a citizen or someone who is a permanent
resident alien. Other people are allowed under this, but those
are not.
Mr. Mullins, you have had more than a slight participation
in the criminal justice system. Are you satisfied that the
criminal tools that are available to law enforcement are
sufficient that we do not the PATRIOT Act in our anti-terrorism
efforts?
Mr. Mullins. Not at all.
Mr. Lungren. Well, why is that? I mean, you use that every
day. If I listen to Mr. Barr and Mr. Fein, you should be very
satisfied. You guys are professional. You know what you are
doing. You have been able to do a great job in the city that
you represent. Why do we need this?
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from Michigan, Mr. Conyers?
Mr. Conyers. Thank you. This is a quite interesting
discussion because what we are exchanging views on is whether
the failure of 9/11 was a failure of intelligence analysis or
law enforcement. And I hear Members on the Committee claiming
that law enforcement dropped the ball and that is how it
happened. But I think that it was failure of intelligence, and
I would like you two to comment on it, because since 9/11, of
course, we have reorganized our whole Federal law enforcement,
given the FBI, for example, the mission of preventing
terrorism. And so, the failure of 9/11 was in one sense a
failure to connect the dots. It was a failure to use the
information that we had. And I would like you to expand on
that.
Mr. Fein. Representative Conyers, I do not know whether I
would be all that critical of the intelligence people. They
make errors make from time to time. 9/11 was unprecedented in
many ways. People did not think that that kind of dastardly
abomination would be plausible, but certainly think, and I
think Mr. Barr mentioned, that Mr. Moussaoui, the 20th
hijacker, there was clearly probable cause to search his
computer that could have uncovered the plot, and simply was not
exercised on that score.
And with regard, I think, to the general idea that anything
that makes it easier to thwart terrorism is justified, then you
might as well say, go into anybody's home and spy whenever you
want. And if the question is, DoE sit make it more likely for
us to thwart terrorism, the answer is yes, but it destroys the
country that we know and we fought to maintain as a country
give to freedom rather than national security.
Mr. Barr. I would say probably, not to coin a phrase, but
what happened in the lead up to 9/11 was probably a perfect
storm of failures. I do not think that it was, nor is it the
case today, that these terrorists are all rocket scientists,
and know exactly what they are doing, and never make mistakes.
They got very lucky on 9/11. There were numerous
opportunities, from enforcing our immigration laws to enforcing
the laws requiring and establishing security at airports, to
laws allowing the government to access computers, that were
simply not exercised by the government at all levels, state
government as well as Federal Government. There were licenses
that were obtained, driver's licenses based on false pretenses
and false information that were never checked out. There were
immigration statuses that were overstayed that the Federal
Government did not enforce. There were not proper steps taken
to search the baggage and so forth. And the 20th hijacker did
not have his computer access, which the government could have.
There was authority to do that. Yet, I do not recall, and maybe
the Chairman does, but I do not recall that the post-9/11
hearings that we had leading up to the PATRIOT Act, any
government witnesses coming in and saying they had made a
mistake. They all paraded in here and said, oh, we did not have
enough authority. We did not have enough money. Give us more
authority, give us more money, rather than address the mistakes
that had been made by failing to use existing powers.
Mr. Conyers. I ask unanimous consent to put in a New York
Times story that said that the leaders--``Bush Was Warned Bin
Laden Wanted to Hijack Planes.''
Mr. Sensenbrenner. Without objection.
[The information referred to follows:]
__________
Mr. Conyers. Thanks, sir. And another one from the
Washington Post, the heading, ``Two Months Before 9/11, an
Urgent Warning To Rice.''
Mr. Sensenbrenner. Without objection.
[The information referred to follows:]
__________
Mr. Conyers. Thank you again.
Now, I want to dispel this misunderstanding that some
Members seem to be articulating up here. This is not about a
hearing of whether we have no PATRIOT Act or we continue the
same PATRIOT Act. I want to make that clear. This is about how
we improve the PATRIOT Act, and that is why I have a compromise
bill that I strongly suggest that we try to have some hearings
on. We are not having hearings on the bill itself. This a
hearing called ``Dispelling the Myths.'' That is not a hearing,
and I insist that----
Mr. Sensenbrenner. The gentleman's time has expired. The
gentleman from Michigan knows full well that the Committee
Rules require advance notice of hearings so that everybody can
be prepared, and he dropped his bill last night, which was well
after the time deadline that was required for a hearing today.
And the full committee Chair has scheduled a markup tomorrow.
So, I think the gentleman is a little bit too late in meeting
deadlines of rules that everybody knows.
The Chair now recognizes----
Mr. Conyers. Would the Chairman allow me 30 seconds?
Mr. Sensenbrenner. Certainly, without objection?
Mr. Conyers. You dropped your bill Friday.
Mr. Sensenbrenner. Mm-hmm.
Mr. Conyers. I guess that makes your bill okay and my bill
too late.
Mr. Sensenbrenner. My bill was dropped in time for the full
Committee Chair to notice the bill for a markup tomorrow, so we
complied with the rules on that. And everybody has now had 5
days to see what was in the legislation that I dropped. You
dropped yours last night. You did not see me on the floor. You
did not see the gentleman from Texas, Mr. Smith, the full
Committee Chair, on the floor. So, we got here today to find
out that you dropped your bill, and we found out a couple of
hours before this hearing.
The gentleman from Florida, Ms. Adams?
Ms. Adams. Thank you, Mr. Chair. I will yield my time to
the gentleman from South Carolina.
Mr. Sensenbrenner. Okay. The gentleman from South Carolina
is next up on the Republican side. Without objection, the Chair
will recognize the gentleman from South Carolina, Mr. Gowdy,
for 10 minutes?
Mr. Gowdy. Thank you, Mr. Chairman, and I want to thank the
gentle lady from Florida for yielding and also for her service
as a distinguished law enforcement officer prior to coming to
Congress.
Mr. Fein, I want to be very, very clear about this. I do
not and have never challenged the patriotism of anyone who
holds a contrary viewpoint on this Act. In fact, I applaud you
for probing and questioning and challenging. And I would hope
in that spirit that you would also help those of us who have a
contrary view on the constitutionality of this Act to beat back
the rhetoric, to instruct it with fact. And when I read that
this hearing is about national security letters, or jackbooted
thuggery, or sneak and peak search warrants when it
demonstrably false, just as I would rise in defense of your
patriotism, I would hope that you would rise in defense of the
truth about what these hearings are about.
And as you mentioned, the spirit of the Fourth Amendment,
that is the conversation I would like to have with you, one
grounded in civility, but one about the depth and breadth and
spirit of the Fourth Amendment. Fair enough?
Mr. Fein. That is fair enough.
Mr. Gowdy. All right. You mentioned in your testimony, and
I will quote, ``Government in the United States has no business
collecting or retaining information about citizens without
probable cause to believe that crime has been or will be
committed.'' So, you allow that there needs to be government
involvement in the investigation of future crimes.
Mr. Fein. Yes, conspiracy is a perfect example, yes, sir.
Mr. Gowdy. Right, and there are other examples. I mean, you
cannot wait until something happens to begin to investigate.
Mr. Fein. Well, that is what conspiracy law is about.
Conspiracy means nothing has happened; you just have an
agreement, and you can investigate the agreement to commit an
unlawful act, and that is permissible.
Mr. Gowdy. Well, the difference is, in a conspiracy case,
nothing ever has to happen. It is a crime just to conspire to
commit an offense. You can have conspiracies all day long and
not ever have a crime. Agreed?
Mr. Fein. Well----
Mr. Gowdy. I mean, there does not have to be----
Mr. Fein [continuing]. Some conspiracies you do not need
any overt action.
Mr. Gowdy. You need no overt action Title XXI conspiracy.
Mr.. Fein. You can go ahead and prosecute, but all I am
saying is that you can begin an investigation before anything
happens under the criminal law.
Mr. Gowdy. Agreed, but you used the word probable cause in
that sentence. And then in another sentence you said the whole
purpose of the Fourth Amendment is to saddle government with a
heavy burden of demonstrating by indisputable evidence. Now,
you would agree with me, Mr. Fein, that is not the standard.
Indisputable evidence is not the standard by which the Fourth
Amendment is judged.
Mr. Fein. Indisputable evidence that the inquiry would
produce is focused on somebody who is probably implicated in
crime or the evidence unearthed would shed light on a crime.
Mr. Gowdy. Well, the word ``indisputable'' and ``probably''
do not fit nicely in the same sentence. What is your definition
of probable cause?
Mr. Fein. The one that the U.S. Supreme Court has said you
have got some reasonable foundation and suspicion that ordinary
people applying their intellect would conclude makes it
substantially likely that the individual is engaged in crime.
Mr. Gowdy. It is a fair probability, right?
Mr. Fein. Fair probability, yes.
Mr. Gowdy. That is what the Supreme Court said, and that is
very different from indisputable evidence.
Mr. Fein. Yes, but I believe my statement with regard to
indisputable evidence is indisputable showing that this
particular investigatory tool is necessary to investigate crime
under those standards, not the standard for getting a warrant.
Mr. Gowdy. But you will agree with me that there are
several areas of criminal law where the standard is not
probable cause. You do not have to have probable cause for a
terry-like encounter with law enforcement. You have a
distinguished law enforcement officer right beside you. If
there were to be a police citizen encounter on the street, he
does not have to have probable cause to frisk me for weapons,
right?
Mr. Fein. And that is not viewed as a search. It is a stop
and frisk.
Mr. Gowdy. Well, you can remove weapons and contraband from
their hand or from their pocket under another exception to the
Fourth Amendment, which is the Plain Feel Doctrine. Do you
agree or disagree with the Plain Feel Doctrine?
Mr. Fein. No. The Plain Feel is you have got plain evidence
that a crime or contraband is in your vision.
Mr. Gowdy. But you do not have a warrant.
Mr. Fein [continuing]. Probable cause. No, I am not
saying--probable cause does not mean you have to get a warrant
in every circumstance. Sometimes you can act without a warrant,
but you would have to establish probable cause if it were
challenged after the fact.
Mr. Gowdy. And you will agree that there are areas of
criminal law where well before the PATRIOT Act, all you had to
have was a reasonable suspicion or an articulable suspicion,
or, in some instances, just a hunch.
Mr. Fein. With regard to full scale searches and seizures,
no, sir, I do not believe that is the law.
Mr. Gowdy. Well, but then we get into a discussion of what
is a full scale search and seizure. Can I put a tracking device
on an automobile?
Mr. Fein. I think that is in dispute now, depending upon
whether the tracking device is there 24 hours a day. I believe
that case is just in the U.S. Court of Appeals for the District
of Columbia.
Mr. Gowdy. But there are courts of appeals, including the
4th Circuit, which have said you can put electronic tracking
devices on automobiles, right?
Mr. Fein. Yes, there are, and they may be wrong.
Mr. Gowdy. They may be, but what if they find out in 10
years we are all wrong?
Mr. Fein. You have an independent judgment to make as well.
The Olmstead case in 1928 said wiretaps are free, that you do
not have to have any cause whatsoever, and it was overruled 3o9
years later.
Mr. Gowdy. Right.
Mr. Fein. And this body has a tradition of looking at court
decisions and maybe overruling them. They did that with regard
to Korematsu and Haribiyashi when they enacted the Civil
Liberties Act.
Mr. Gowdy. We are having a hard time getting the laws we
have passed enforced right now with respect. This executive
branch does not enforce the laws we do pass, so the notion that
we are going to foresee----
Let me ask you this. Do you agree that law enforcement
should be able to search the computer records of a suspected
child pornographer who uses a taxpayer funded computer at a
public library?
Mr. Fein. If it satisfies probable cause, they will come up
with evidence of crime. Of course, yes.
Mr. Gowdy. They have no--well, it does not have to be
probable cause. An assistant United States attorney can send a
subpoena, right? You do not have to have a search warrant.
Mr. Fein. I am talking about probable cause. If it just----
Mr. Gowdy. I know you are talking about probable cause, but
what I am trying to establish is there is a rich jurisprudence
in this country where probable cause is not the only standard.
An assistant United States attorney can send a grand jury
subpoena to a library and get your library records today,
correct?
Mr. Fein. That is correct because the Supreme Court, and I
think they got it wrong, says that if the information is in the
hands of a third party, then you have no protectable----
Mr. Gowdy. You have no understanding.
Mr. Fein [continuing]. Reasonable expectation--yeah.
Mr. Gowdy. You have no expectation of privacy.
Mr. Fein. I believe that is an incorrect interpretation of
the Fourth Amendment. In today's Internet era, you can have
your virtual digital diary of everything you have done tracked
in the hands of third parties, and that doctrine enables then
the government to find--really look in your diary----
Mr. Gowdy. Or you can be on notice that the law is what it
is and not keep things that you have an expectation of
privacy----
Mr. Fein. I think if you are an American, you are endowed
with liberty, and the burden is on the government to overcome
your right to be left alone, not the other way around.
Mr. Gowdy. You think that you are endowed with the liberty
to use a taxpayer funded computer at a taxpayer funded library
and search for child pornography, and have standing to contest
whether or not the government can get those records.
Mr. Fein. If the government is providing it and they place
certain conditions that the government places certain
conditions on use, that may be different because you are then
given alert that you are using government property. It is like
if you are living in government operated house, they may say,
well, then you are going to be searched to make sure you do not
have guns or something in there. So, that changes----
Mr. Gowdy. Well, that raises a wonderful point. Would you
agree with me that as a condition of probation, the government
can say we have the right to search you when we want to? As a
condition of parole or probation, you consent to be searched.
Mr. Fein. If they wish to--if you have already established
that they violated the law, this is a privilege they have got
now to go out on probation. The government can set those
conditions.
Mr. Gowdy. Well, wait a minute. You have already served
your debt to society.
Mr. Fein. Well, with regard to parole, I am not sure----
Mr. Gowdy. Or probation. There is no parole in the Federal
system.
Mr. Fein [continuing]. That if you violate the conditions
of parole, you return to----
Mr. Gowdy. Could we make it a condition on admittance to
this country that you consent to be searched?
Mr. Fein. If you are not a U.S. citizen, that is----
Mr. Gowdy. So, you do not have a problem with that.
Mr. Fein. The rule on border searches is that you do not
have to--yeah, you do not cause whatsoever. It is an exception
to the Fourth Amendment.
Mr. Gowdy. Border searches, probation searches. So, there
has already been an erosion in your judgment of the probable
cause standard, the warrant standard, of the Fourth Amendment.
Mr. Fein. In very narrow circumstances, yes.
Mr. Gowdy. All right. Do you disagree with the lawfulness
of anticipatory search warrants?
Mr. Fein. Of what search warrants?
Mr. Gowdy. Anticipatory. The crime has not even been
committed yet, but law enforcement can go get a search warrant
for that crime.
Mr. Fein. Well, as I say, if there is a conspiracy and
there is suspicion----
Mr. Gowdy. Not a conspiracy case.
Mr. Fein. No, I do not believe that you should just go out
and be able to spy on citizens because of somebody's individual
hunch.
Mr. Gowdy. Not a spy.
Mr. Fein. Hey, maybe it will come out.
Mr. Gowdy. It is not a spy. It is an undercover case where
somebody has ordered contraband, and it is going to be
delivered to their home. So, you go get a search warrant in
anticipation of delivery. The crime has not been committed yet.
Mr. Fein. No, if the search warrant is based upon probable
cause to believe you will uncover evidence of crimes, of course
you can do that.
Mr. Gowdy. So, again, the strictures of the Fourth
Amendment do not require a warrant before every arrest, agreed?
Mr. Fein. Right. Probable cause is different than a
warrant.
Mr. Gowdy. And they do not require a warrant for all
searches, agreed?
Mr. Fein. Right, but they may require probable cause if----
Mr. Sensenbrenner. The time of the gentleman has expired.
The gentlewoman from California, Ms. Chu?
Ms. Chu. Thank you, Mr. Chair.
I would like to ask Mr. Fein, pertaining to the business
records provision and gag orders, we know that secrecy is
essential when conducting any intelligence investigation. But
Section 215 orders come armed with significant gag orders that
are the subject of the order from discussing it with anyone. In
fact, you have to wait an entire year before you can even
challenge the gag order in court. And uninformed person might
not even know that they actually challenge it, or how to it.
Judicial review is the essential mechanism that we arm
citizens with to ensure that they can protect their rights, but
under the PATRIOT Act it is practically impossible to bring
these cases to court.
How can we change the rules? What would be your
recommendation with regard to changing the rules surrounding
gag orders to more adequately provide innocent Americans with
an avenue to challenge them in court?
Mr. Fein. Well, I would authorize them certainly to consult
with lawyers and to bring court challenges without waiting,
because 1 year all sorts of damage could happen in the interim,
because I believe that the PATRIOT Act, again, is premised
largely on the idea that government generally never gets it
wrong, and the burden is on the citizen to establish their
right to be free from government snooping rather than the
burden on the government to say, why are you crossing the
threshold of the citizen.
And certainly there have been instances where the gag
orders were challenged. A couple of cases held that they were
unconstitutional because they interfered with the due process
right to challenge an alleged violation of the law. And I do
not believe that there is any demonstration. In some of these
instances when the gag orders were lifted, the FBI just dropped
the investigation without showing that we had a terrorism crime
that ensued because there wasn't that particular authority to
keep the entire matter under wraps, if you will. And I think
that anyone who receives some government issued document should
have a right to go into court and challenge its legality. That
is what the rule of law is about.
Ms. Chu. You mean immediately without having to wait a
year.
Mr. Fein. Correct.
Ms. Chu. And also you discussed the fact that subjects are
frequently kept in the dark when they are the subject of these
investigations because much of the information is requested
directly from third parties, such as telecommunication
companies or Internet service providers. And not only is the
subject never told that their information is being shared with
the government, the third parties hardly ever have any
incentive to even question the government's actions. In fact,
the legal costs for those third parties are a strong barrier,
and they find that it is just easier for them to cooperate.
This essentially allows the government to compile
information regarding individuals without notice, providing
they claim it as relevant to a national security investigation.
Should the government be required to give notice to the
subjects of these investigations?
Mr. Fein. Yes. I believe that is true, and I believe in
other circumstances, for instance when there are tax
investigations or the Bank Privacy Act, Congress went out of
its way and, by statute, did allow in limited circumstances the
target of the investigation to be notified, even though the
target was not specifically the recipient of the subpoena or
for the investigative demand. And it seems to me more, rather
than less, urgent today to do that because so much of the data
about any individual in the hands of third party Internet
service providers. It is hard to suggest that you volunteer
information on the Internet. It is hard to even run or live
today without having huge stores of information on the
Internet.
And without being cynical, you are exactly right. The
incentive of the provider of the information is to cooperate.
They are regulated by the government. They have huge amounts of
contracts. I think we discovered that with regard to the
cooperation of the telephone companies concerning the
President's terrorist surveillance program, and they were
eager. We will give you all of our phone records even without
asking for an attorney general assertion that this is
constitutionally mandated because they have got $10, $20
billion contracts with the Defense Department, and you cannot
expect them--they are out for their interests--to defend the
third party target of the investigation.
Ms. Chu. Mr. Barr, I wanted to ask a question about
oversight. At the end of last month, the Department of Justice
submitted an annual report that Congress had detailed a number
of times that the government want FISA support authority to
conduct secret electronic surveillance for access to certain
business records and the number of national security letters.
And this report found out that the government used these
special tools much more often than in the past years. For
instance, they made 96 applications for access to business
records for foreign intelligence purpose, and that is five
times more than the year before. And the FBI used national
security letters to get information on over 14,000 different
U.S. persons; that is over double the individuals of the year
before.
I am greatly concerned about the increase in government
access to personal information without the proper checks and
balances. And we know that there have been times when the FBI
has abused this----
Mr. Sensenbrenner. The time of the gentleman has expired.
Gentleman from Virginia, Mr. Goodlatte?
Mr. Goodlatte. Thank you, Mr. Chairman. Thank you for
holding this hearing, and I want to thank all the panelists for
their contribution.
I want to start out, Mr. Rowan, and ask you to comment on
what I think is the core point that Mr. Barr and Mr. Fein have
made here. And that is that with regard to the business records
provision, that there needs to be illegal activity or a known
terrorist, that somehow this legislation has broken the link
between the right to privacy and the requirement that the
government show a reasonable suspicion before being able to
examine these third party held business records. I wonder if
you would comment on that.
Mr. Rowan. Well, I think that, first of all, there is a
standard in there. A statement of facts needs to be submitted
to a judge showing that there are reasonable grounds to believe
that the----
Mr. Goodlatte. So, to be clear. No one is looking at
anybody's business records without a judge first saying they
are going to be able to do so. Is that correct?
Mr. Rowan. Right. And, again, from the perspective of
somebody who knows how Federal criminal law enforcement
investigations go, this is an extraordinary bar. The director
of the FBI and the attorney general or his designate are
signing off on these applications. This is such a more
stringent mechanism in place----
Mr. Goodlatte. So, in order to look at somebody's business
records, the top level people in our law enforcement agencies
are having to approve this.
Mr. Rowan. That is right. These are being treated with the
same set of protections as a request for electronic
surveillance under FISA. And there is an application made to an
Article III judge sitting on a FISA court who is going to
determine whether or not the standard has been met.
The standard is, relatively speaking to electronic
surveillance, it is lower, but it needs to be lower because----
Mr. Goodlatte. I understand there three categories it has
to fit into--foreign intelligence investigation--not just a
whim, but there is an actual investigation that this will be a
part of--international terrorism or clandestine intelligence
activity, all under Section 501(a). Is that correct?
Mr. Rowan. That is correct.
Mr. Goodlatte. And then the court that this is brought to
has to make a number of specific findings before one can look
at one's business records. And these are not business records
held by the individual; these are, as have been discussed here,
business records held by a third party.
Mr. Rowan. That is right, and keep in mind that in addition
to making those findings, the court is imposing minimization
procedures on the government effectively telling the
government, if and when you get these records, you need to take
great care in how you handle them. You need to determine
whether or not they are in fact intelligence information before
you disseminate them. And, moreover, there is going to be at
the end of the year or whenever it is appropriate, there is
going to be a report made to the Congress that is going to list
this particular order as one of those that was secured during
the year. So----
Mr. Goodlatte. Now, let me interrupt you. Mr. Fein has said
in his testimony that every provision of the PATRIOT Act should
be repealed unless the government can prove that, ``but for the
authority,'' an act of international terrorism would have
succeeded. That is a pretty high standard to meet in terms of
trying to look forward to prevent something like 9/11 happening
again, because it will not happen exactly the same as it
happened previously.
So, let me ask you. Are you confident that the PATRIOT Act
has helped to thwart acts of international terrorism since its
enactment in 2001?
Mr. Rowan. Yes, I am.
Mr. Goodlatte. And in September 2004 before the Senate
Judiciary Committee, former Congressman Barr, my former
colleague and friend, and hopefully still a current friend,
stated that a Federal agent could randomly wiretap an entire
apartment complex. Is there any legal authority in the PATRIOT
Act or in the U.S. Code anywhere that would authorize a court
to authorize such a wiretap?
Mr. Rowan. No.
Mr. Goodlatte. And in your experience, have you ever heard
of such a wiretap taking place?
Mr. Rowan. No.
Mr. Goodlatte. Sergeant Mullins, in your experience, do
your Federal law enforcement counterparts exercise care,
restraint, and discretion in the exercise of PATRIOT Act
provisions?
Mr. Mullins. Yes.
Mr. Goodlatte. Do you want to elaborate?
Mr. Mullins. Well, to my understanding, there has been
approximately 32 events to which terrorist acts were about to
inflicted upon Americans here in this country. And those events
were prevented as a result of the intelligence that was
gathered by Federal authorities. And to date, again, my
understanding, there has been no Supreme Court decisions, no
major court cases that have challenged that.
Mr. Goodlatte. Thank you.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from Arizona, Mr. Quayle?
Mr. Quayle. Thank you, Mr. Chairman, and thanks to all the
witnesses for being here today.
Mr. Fein, I enjoyed your constitutional back and forth with
Mr. Gowdy, and obviously there is a differing of opinion
between the constitutionality of the PATRIOT Act. But aside
from the constitutionality, we just have to decide, even if we
stipulate that it is constitutional, I mean, the Constitution
is a set of rights that cannot be trampled on by the majority.
So, even if you stipulate that it is constitutional, you still
have to figure out whether it is the right thing to do.
Mr. Fein. Correct.
Mr. Quayle. And I think that that sometimes is lost in this
argument when people continue to say this is constitutional, so
it is constitutional, so it is okay to do. And I just wanted to
say that at the beginning because there are some concerns that
I have.
And, Mr. Rowan, one of the things that I want to just get
some clarification on, when you are talking about the grand
jury subpoenas that you had issued, and you said that they were
obviously issued without any court order and without any
judicial oversight, was that with a criminal investigation to a
crime that already occurred, or was it something that was to
try to prevent a crime from occurring in the future?
Mr. Rowan. Well, it would certainly be in the context of
either historical criminal activity or ongoing criminal
activity. As Mr. Fein has pointed out, you know, the conspiracy
law is broad, and you can be investigating a series of
activities, including what you think is going to happen in the
future, in the context of a grand jury investigation because
you can identify somewhere in there an offense that is going on
at the time.
Mr. Quayle. Okay. And one thing that I was just wondering
is, with the Foreign Intelligence Surveillance Act of 1978,
they required specific and articulable facts. Why do you think
it is imperative to have that removed from that level of
relevancy and actually having to be able to state, these are
the facts that show the reasonable grounds to go and get the
business records of an individual or to have a surveillance?
Mr. Rowan. Well, I think there are two different things
here. I think that the factual showing that needs to be made
for electronic surveillance is higher in FISA than it is for
business records, and that is appropriate because it is far
more intrusive than going after third party documents.
With respect to Section 215, the business records
provision, if you are going to ask the FBI to do a lengthy
factual narrative of why they want these third party records,
there is a huge disincentive for the FBI to pursue that because
it is a time consuming activity. Remember, these orders are
written by an agent in Phoenix, who then forwards it to his
supervisor, who forwards it to Washington, who takes it to the
Justice Department. And the Justice Department and the FBI
headquarters work on it together, and then they eventually say,
this is good enough that it can be signed by the director of
the FBI and the attorney general and sent to a Federal judge.
All that takes time, and they can do it very quickly when they
have to. And they do it all the time very quickly when they
need to. But when you are asking the agents to get a lengthy
factual narrative explaining exactly why you need these
records, that is a lot of work to do under circumstances where
they have, you know, potentially they may well decide, you know
what? I would rather risk exposing my investigation and using a
grand jury subpoena because I can get this quickly, and I need
to move. I cannot wait to go through everything that you are
asking me to go through to meet the standards of a 215 order.
That may not be a good thing, that agents make decisions
like that, but I think that is the real world of conducting
national security investigations.
Mr. Quayle. And I understand that, and I understand the
importance of being able to balance and give Federal law
enforcement officers and intelligence officers the ability to
thwart attacks against the United States. But the one thing
that I have been looking and reading about, sometimes when you
have laws that are vague or overly broad, it opens up to misuse
by various agencies, not to say that it would actually happen,
but it actually has the potential to have--when you have vague
and overbroad laws. Do you think that that is the case in this
instance?
Mr. Rowan. I understand your general point, but I think
that when you consider all the informal and formal executive
branch oversight that exists for these orders, that the chances
of abuse are far--it is just not very likely, I think, under
these circumstances. I mean, if you look back at the history of
the business orders, it took the FBI and the DoJ several years
to even use this provision because it was new, it was
different, it asked them for things they had not been required
to do in the past. It took a long time for agents to get
comfortable with this approach. And to be blunt, if you raise
the bar further in terms of what needs to be provided, it is
even harder to see this used in the future.
Mr. Sensenbrenner. The gentleman's time has expired.
The Vice Chairman of the Committee, the gentleman from
Texas, Mr. Gohmert?
Mr. Gohmert. Thank you, Mr. Chairman, and do appreciate
each of you being here and the attention that each of you have
given to this subject. Obviously there are differing opinions.
There is no question in my mind, and hopefully in yours,
that there are people who are war with us. They have declared
war on the United States and on western civilization. They feel
like the freedoms we have lead to debauchery and lead to things
that can be avoided if you have on religious zealot controlling
what people get to do. I do not want to get there. I believe
God gave us freedom of choice.
And yet when you are dealing with people at war with you,
are often different parts of the Constitution come into play. I
have been struck that people demand constitutional rights for
people who have declared war against us that actually are not
constitutional rights for them at all. The Constitution
anticipates that in time of war or in time of peace, our own
military will not have the constitutional rights. When I was in
the Army, I did not have the constitutional rights everybody
else did. That is just all part of the Constitution.
I have been concerned about parts of the PATRIOT Act, but
felt that if it were pertaining to foreign non-U.S. citizens
and we had some terrific discussions about this back in my
first term, '05 and '06. But even then it needed to be properly
monitored.
There were a couple of us that really pushed hard, some of
us harder than others, but really pushed for having sunsets so
we could have this discussion down the road. And I was pleased
that we got them in on anything in the House version so that
when it got to conference it could still be used.
But as the last 5 years have unfolded, it seems to be that
the biggest abuses have not come in 206 or 215, the ``Lone-
Wolf'' provision, but in the national security letters. That is
where we had the IG report that was just devastating of how
abusive that has been. And that is not something that is up for
renewal, but I have concerns if maybe we ought to slide the NSL
authority under the business records provision. I am just
uncomfortable after we saw how easily abused that could be.
I think because of some of the presentations some have made
in public that America is confused about the report of the
national security letter abuses, which have not been similarly
abused that I can find under 215 or 206.
So, I am curious. I asked in a prior hearing if one
proponent against NSLs, if he wanted to see them disappear
because I was entertaining that, and he said, oh, no, I do not
think so.
How would you feel if NSL authority were somehow merged
with 215 to at least give some requirement of court authority
before you could just send out what basically amounts to a
subpoena for records and other things? Yes, sir, Mr. Fein?
Mr. Fein. Congressman Gohmert, the first thing I would like
to do before I get specifically that is read from this
statement of the unanimous consent ex parte Milligan about the
idea of war changing the constitutional matrix. And this was,
of course, after the existence of the republic had been shaken
by the Civil War.
Mr. Gohmert. I understand Milligan, and I understand, and
perhaps I did not make myself clear. I am not talking so much
in war there are different things that apply to prisoners of
war, enemy combatants, and things like that. But I would like
to one answer to my question.
Mr. Fein. I think in one of the prior hearings, it was
shown that on a couple of occasions when 215 authority was
sought and turned down because the judge thought it was focused
on First Amendment activity, the government then went and got
national security letters to, in some sense, circumvent the
standards of 215. And I do not see any reason why the national
security letters seem to me historically the ones that have
been most abused. They have the most lax standards
administratively. It is not like 215 where you have to get a
court involved, just the FBI goes out there and say it is
relevant. That covers about everything----
Mr. Sensenbrenner. The time of the gentleman has expired.
And the Chair will clarify is that the national security
letters were never a part of the PATRIOT Act.
Mr. Gohmert. Right.
Mr. Sensenbrenner. They were originally enacted in 1986 on
a bill that was sponsored by Senator Leahy of Vermont and
Representative Kastenmeier of Wisconsin.
The Chair now recognizes the gentleman from George, Mr.
Johnson?
Mr. Johnson. Thank you, Mr. Chairman.
Mr. Bob Barr, we have seen you many times here testifying
on behalf of liberty, Fourth Amendment issues particularly. And
you know well this area, having served as a U.S. congressman on
this Committee for a number of years, and then prior to that as
a U.S. attorney down in the northern district of Georgia,
where, in my opinion, you exercised prosecutorial authority in
a nonpartisan way. And I appreciate your service to the Nation.
I have just a few questions that I would like to ask you.
Does a relevance standard impose any real check on the
government's ability to secretly collect information about
American citizens using Section 215? And cannot a good lawyer
almost always come up with a reason why information is
relevant?
Mr. Barr. The standard that you refer to is virtually no
standard at all. To come before a judge or any other authority
and say we need this and you need to issue an order allowing us
to access this information because it is relevant to an
investigation that we are undertaking, in effect, means
absolutely nothing. It is no standard, and it is particularly
problematic here because the relevance standard, so to speak,
is being used to access information or may be used to access
information on individuals with no connection whatsoever to a
terrorist, a suspected terrorist, or even an associate of a
known terrorist.
Mr. Johnson. Well, let me ask you this question. If a
terrorist suspect--and before I do that, though, I must point
out the fact that as a congressman, you served as a Republican,
and now I have not heard you renounce your political leanings,
so I assume you are still a Republican with some libertarian
leanings. But I will not----
Mr. Bar. Probably a little more than that, but I am here
today in a nonpartisan capacity.
Mr. Johnson. Well, I do appreciate that, sir.
If a terrorist suspect used a U.S. online dating site and
viewed your profile or sent you a message, could the government
collect your online dating history or other records about you?
And would not such information be relevant to the investigation
and possibly even presumptively relevant since it involved
contact with a foreign power?
Mr. Barr. I would like to make clear for the record that
the congressman is referring to a hypothetical, not a real
situation. [Laughter.]
Mr. Johnson. Well, I mean, many people use dating services
these days. [Laughter.]
Mr. Barr. With that understanding, I think probably in that
case, there would be a justification for accessing those
records because there would be a link, certainly one that could
be dispelled, but certainly a link that would be apparent. You
have a known or suspected terrorist communicating with an
individual, and that individual may have no connection
whatsoever and may be entirely innocent. But I think in that
situation, there probably would be an appropriate justification
for the government to look at those records.
Mr. Johnson. And what if there was no message at all and
there was just a viewing of the records?
Mr. Barr. There was just what?
Mr. Johnson. A viewing of the records.
Mr. Barr. Well, that would establish nothing. If an
individual just goes online to a dating service, as I
understand it--never having used one--they can look at
virtually an unlimited number of persons with no connection
whatsoever. So, in that situation, there would seem to be no
nexus whatsoever that would provide a justification for the
government to then look at that other individual and their
data.
Mr. Johnson. Well, that is kind of using a reasonable
standard, but I guess someone could eke out a relevancy
purpose.
Mr. Sensenbrenner. The gentleman's time has expired, and
the Chair will observe that the use of dating services, either
hypothetically or actually, is not within the purview of this
hearing.
So, with that note, I would like to thank all of the
witnesses for their testimony today. And without objection, all
Members will have 5 legislative days to submit to the Chair
additional written questions for the witnesses, which we will
forward and ask the witnesses to respond as promptly as they
can so that their answers may be made part of the record.
Mr. Sensenbrenner. Without objection, all Members will have
5 legislative days to submit any additional materials for
inclusion in the record.
Also without objection, letters from the Federal Law
Enforcement Officers Association, the Sergeants Benevolent
Association of New York City, the Society of Former Special
Agents of the FBI, the FBI Agents Association, Keep America
Safe, the National Association of Assistant United States
Attorneys, and the National Fraternal Order of Police in
support of the reauthorization of the PATRIOT Act, will be
submitted to the record.*
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*The submissions referred to are located in the Appendix of this
hearing record.
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And without objection those three requests are so ordered.
The gentleman----
Mr. Barr. Mr. Chairman, I may have missed the beginning,
but might I ask permission to have my entire printed statement
made a part of the record?
Mr. Sensenbrenner. Well, just to make clear, without
objection, the printed statements of all four of the witnesses
will be made part of the record at the beginning of their
testimony.
And if there is no further business to be brought before
the Subcommittee, the Subcommittee stands adjourned.
[Whereupon, at 11:53 a.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record