[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


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



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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.]


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