SPEAKERS CONTENTS INSERTS
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USA PATRIOT ACT: A REVIEW FOR THE PURPOSE OF REAUTHORIZATION
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
APRIL 6, 2005
Serial No. 10912
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
COMMITTEE ON THE JUDICIARY
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F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
DANIEL E. LUNGREN, California
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
SPENCER BACHUS, Alabama
BOB INGLIS, South Carolina
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
DARRELL ISSA, California
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Page 3 PREV PAGE TOP OF DOCJOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California
ADAM SMITH, Washington
CHRIS VAN HOLLEN, Maryland
PHILIP G. KIKO, Chief of Staff-General Counsel
PERRY H. APELBAUM, Minority Chief Counsel
C O N T E N T S
APRIL 6, 2005
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The Honorable F. James Sensenbrenner, Jr., a Representative in Congress from the State of Wisconsin, and Chairman, Committee on the Judiciary
The Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary
The Honorable Alberto R. Gonzales, Attorney General, U.S. Department of Justice
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Letter submitted by the Honorable John Conyers, Jr. from Ms. Clash-Drexler
Article submitted by the Honorable John Conyers, Jr., entitled ''Seeking the Truth From Justice,'' by Laura Murphy, former Director, American Civil Liberties Union
Prepared Statement of the Honorable Sheila Jackson Lee, a Representative in Congress from the State of Texas
Prepared Statement of the Honorable Linda Sánchez, a Representative in Congress from the State of California
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Prepared Statement of the Honorable Zoe Lofgren, a Representative in Congress from the State of California
Material Submitted for the Hearing Record
USA Patriot Act: Sunsets Report, prepared by the U.S. Department of Justice
Chapter I of On Liberty by John Stuart Mill, submitted for the Record by the Honorable Sheila Jackson Lee
USA PATRIOT ACT: A REVIEW FOR THE PURPOSE OF REAUTHORIZATION
WEDNESDAY, APRIL 6, 2005
House of Representatives,
Committee on the Judiciary,
The Committee met, pursuant to notice, at 1:01 p.m., in Room 2141, Rayburn House Office Building, Hon. F. James Sensenbrenner, Jr. (Chairman of the Committee) presiding.
Page 6 PREV PAGE TOP OF DOC Chairman SENSENBRENNER. The Committee will be in order. A quorum for the taking of testimony is present.
On September 11, 2001, 19 terrorists turned four planes into guided missiles that killed more than 3,000 innocent men, women, and children, caused approximately $100 billion in economic losses, and triggered U.S. military action in Afghanistan. In response to the failure of the Nation's law enforcement and intelligence communities to discover and prevent these attacks, Congress passed the USA PATRIOT Act. The objective of this bill was to modernize both Federal law enforcement and intelligence investigative tools and to ensure that the information collected was shared between the law enforcement and intelligence communities.
September 11 also led to the passage of several other key pieces of legislation to assist law enforcement and the Intelligence Community with their efforts in the war on terrorism. Such accomplishments included creating a Department of Homeland Security to better coordinate agency efforts for a secure homeland; further improvements to information sharing; efforts to enhance border and visa security; and heightened penalties for terrorist acts and criminal activities which assist in their furtherance.
The PATRIOT Act is an important part of the overall framework to protect our Nation. In passing the PATRIOT Act, Congress established standards and oversight for the use of the Act's provision. For example, section 1001 of the PATRIOT Act requires the Inspector General of the Department of Justice to determine and report to Congress civil liberties violations. I would note that this includes any violations of civil liberties by DOJ, not just those alleged to have occurred under the provisions of the PATRIOT Act. To date, the Inspector General has issued six reports and not found a single example of a civil liberties violation relating to authority granted under the PATRIOT Act.
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To further address concerns that enhanced law enforcement tools could lead to civil liberties violations, Congress included a sunset provision for 16 sections of the PATRIOT Act. These 16 sections, set to expire this year on December 31, are aimed at updating investigative tools and improving information sharing and go to the very heart of our Nation's response to a changed world in which terrorists plot to destroy our very way of life.
As we consider the reauthorization of these provisions, we must consider whether allowing them to expire will once again saddle law enforcement and the Intelligence Community with the restrictions that will render intelligence unreliable and prosecutions unattainable against criminals and terrorists who increasingly utilize advanced technology and countersurveillance methods to improve their efforts to harm and to kill.
As we learned from the 9/11 attacks, procedures needed to be streamlined for law enforcement and the Intelligence Community to react in real time. In this war on terrorism, we are racing against the clock. Terrorist cells operate throughout the world, including within our own borders, and actively plan attacks against U.S. citizens. Law enforcement and the Intelligence Community must be able to quickly protect the public from future attacks.
That is why I believe that one of the most important tasks Congress faces this year is to consider the reauthorization of these provisions. Lawmakers must focus on how the PATRIOT Act has been implemented, what improvements, if any, are needed, and whether the provisions set to expire deserve to be made permanent.
Accordingly, the Committee plans an ambitious hearing and oversight schedule beginning with today's full Committee hearing with Attorney General Alberto Gonzales. After this hearing, the Committee will hold eight Subcommittee hearings through April and May on the PATRIOT Act provisions that are set to expire on December 31. Finally, I anticipate the Deputy Attorney General and the Inspector General will testify before the full Committee soon after the Subcommittee hearings are completed. These hearings reflect this Committee's continued commitment to monitor the implementation of anti-terrorism legislation, to conduct active oversight over the Department of Justice, and to ensure that law enforcement has the tools necessary to fight and to win the war on terrorism and to fight crime in general.
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I look forward to hearing the testimony of the Attorney General, and congratulations, General Gonzales, on your recent confirmation.
Now I recognize the gentleman from Michigan, Mr. Conyers.
Mr. CONYERS. Thank you, Mr. Chairman. Good afternoon, Mr. Attorney General. We are delighted to have you here.
As we begin our review of the PATRIOT Act, let me start at this very important point. Those who oppose the passage of any parts of the PATRIOT Act, want changes, who question its utility, who are concerned about the Government's demand for new and unnecessary powers after September 11 are not those who do that because they have any sympathy with terrorists or those that support them. I personally resent on the part of all Americans any one, particularly in the Government, that takes that point of view.
In the Congress and in the Judiciary Committee, that's even more important because we make the laws. We pass the laws. These are our responsibilities. This is what we took the oath for. So we have a historic and legitimate concern regarding the misuse and the abuse of Government power, any Government power, but particularly coming from the Department of Justice, not only under the PATRIOT Act, but under the entire array of authority unilaterally assumed in many instances by the Administration since September 11.
This includes the mistreatment of detainees, the condoning of torture, the designation of enemy combatants, the immigration sweeps, hundreds of them, the excessive collection of personnel data, the closing of immigration proceedings, the unchecked military tribunals, and the abuse of our material witness statutes.
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When our own Government detains and verbally and physically abuses thousands of immigrants for unknown and unspecified reasons with no time limits, targets tens of thousands of Arab Americans for intensive interrogation, I, sir, see a Department of Justice that has institutionalized racial and ethnic profiling without the benefit of a single terrorism conviction.
When our President takes upon himself to label United States citizens as enemy combatants without a trial, without charges, without access to the outside world, I see an executive branch that has placed itself in the constitutionally untenable position of prosecutor, judge, and jury, and is ignoring, to my shock and dismay, the principles of the separation of powers.
When our Justice Department condones the torture of prisoners at home and abroad, authorizes the monitoring of mosques and religious sites without any indication of criminal activity, I see a course of conduct that makes our citizens less safe, not more safe, and undermines our role as a beacon of democracy and freedom in the world.
When the FBI can arrest an innocent American citizen, a Muslim, Brandon Mayfield, based on a botched fingerprint exam, blame him for blowing up a train in Spain and he's never been in the country, has no known connection to al-Qaeda or any terrorist group, I hope you can understand why so many Americans are distrustful about the tactics and standards being applied in our war against terror.
When the PATRIOT Act can be misused to tap Mr. Mayfield's phones, seize his property, copy his computer, spy on his children, take his DNA, all without his knowledge, please, sir, appreciate why I am today calling on the Inspector General to review the manner in which this American citizen and his family have been treated by our Government.
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In the past, your predecessor has stated that those who would criticize this Administration are aiding the terrorists and giving ammunition to America's enemies and chastise us as searching for phantoms of lost liberty. Well, I'm here to say that these incidents are not phantoms, thousands of them. They involve real people with real families whose civil liberties have been abused in the war on terror.
This Member will not be bullied or intimidated or rushed into backing down from my legislative and oversight responsibilities. Many of us remember a time when the powers of the FBI and the CIA were horribly abused. We know what it means to face racial profiling and religious persecution. Many of us know that our Nation has too frequently overreacted to threats of violence in the past by clamping down on legitimate protests and law-abiding citizens and immigrants. To me, the lessons of September 11 are that if we allow law enforcement to do their work free of political interference, if we give them adequate resources and modern technologies, we can protect our citizens without intruding on our liberties.
We all fight terrorism, but we want to work with you to fight it the right way, consistent with our Constitution and in a manner that serves as a model for the rest of the world.
Chairman SENSENBRENNER. Thank you, Mr. Conyers.
[The letter from Ms. Clash-Drexler follows:]
LETTER SUBMITTED FOR THE RECORD BY THE HONORABLE JOHN CONYERS, JR. FROM MS. CLASH-DREXLER
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ARTICLE SUBMITTED BY THE HONORABLE JOHN CONYERS, JR. ENTITLED ''SEEKING THE TRUTH FROM JUSTICE,'' BY LAURA MURPHY, FORMER DIRECTOR, AMERICAN CIVIL LIBERTIES UNION
Chairman SENSENBRENNER. Without objection, all Members may place opening statements in the record at this point.
[The prepared statement of Ms. Jackson Lee follows:]
[The prepared statement of Ms. Sánchez follows:]
PREPARED STATEMENT OF THE HONORABLE LINDA T. SÁNCHEZ, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Thank you, Chairman Sensenbrenner and Ranking Member Conyers for convening this oversight hearing today to review the PATRIOT Act, and to consider its reauthorization.
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Reauthorizing the PATRIOT Act raises many very deep concerns, and those concerns are just as deep as the opposition I feel to the first incarnation of the PATRIOT Act.
The PATRIOT Act signed in 2001 is a massive infringement on many civil liberties. It became law with little consideration of the consequences of giving law enforcement such broad surveillance powerseven going so far as granting them access to your library records.
Every Member of this Committee is fully aware of how quickly we advanced from the terrorist attacks on 9/11, to the concept of the PATRIOT Act, to the bill being passed by both chambers of Congress.
It only took 41 days.
Forty-one days is simply not enough time to fully develop a bill that impacts the Constitutionally protected privacy rights of every American citizen, and granted so much authority to law enforcement agencies.
Some of the new law enforcement powers the PATRIOT Act allows are shocking.
We now live in a country where the government can listen to conversations between attorneys and clients as they prepare their defense in certain cases.
Page 13 PREV PAGE TOP OF DOC We live in a country where the government has the power to indefinitely detain and even deport people who are part of certain associations, or simply exercise their right to free speech.
We live in a country where law enforcement agents have the power to detain aliens when the Attorney General merely suspects they have engaged in terrorist activity.
That doesn't sound like the United States to me, it sounds more like Communist China?
As troubling as the law enforcement provisions of this bill are, the restrictions on the ability of Judiciary and Legislative branches to oversee law enforcement's actions are equally troubling.
This Committee has tried in vain to exercise its oversight powers and get answers to our many questions about how the PATRIOT Act is being used, and more importantly, how it is being misused.
Far too often we have been met by a wall of secrecy or silence.
That is unacceptable. When every American's civil liberties and rights are at stake, we must have transparency to ensure that privacy rights are protected.
I fully recognize how monumental and important the task of protecting national security and preventing future terrorist attacks is.
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I also recognize that law enforcement agents are working tirelessly to protect our country and will need every resource we can provide to keep another 9/11 from happening.
But we cannot trample on the Constitution in our effort to prevent terrorist attacks.
I thank the Attorney General for his testimony today, and I hope that he can inform the Committee how he plans to address the serious civil liberty concerns inherent in reauthorizing the PATRIOT Act.
I yield back.
[The prepared statement of Ms. Lofgren follows:]
PREPARED STATEMENT OF THE HONORABLE ZOE LOFGREN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Following the attacks of 9/11, this Congress passed the USA PATRIOT Act to give our law enforcement and intelligence agencies new powers to fight terrorism. I voted for that law, but only after securing support for sunset provisions that allowed this Congress to revisit these issues under less trying circumstances.
Today, we begin that review in a very different atmosphere. This Nation is still fighting terrorism at home and abroad. But an increasing number of Americans are beginning to wonder whether the PATRIOT Act does more harm than good. In fact, over 370 communities and 4 states have passed resolutions opposing parts of the PATRIOT Act. These communities represent about 56 million Americans who have lost faith in their government's ability to protect civil liberties.
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It's no surprise so many Americans have lost faith. Aside from the PATRIOT Act, Americans have had to deal with torture scandals that were at least implicitly authorized by their own government. They have had to grapple with the reality that their government detains its own citizens for indefinite periods of time without charge, access to counsel, or due process. And they have had to watch their government conduct racial profiling sweeps and secret tribunals.
Add to these realities the fact that this Administration has been so secretive about its use of the PATRIOT Act, and one can understand why the American public wants answers.
Every American, whether Democrat or Republican, wants to protect this country and all it stands for. But we cannot let our zeal for security destroy our fundamental freedoms. There must be a system of checks and balances to ensure that the goals of security and liberty both receive attention.
I question whether this Administration is succeeding in that challenge. I question this Administration's actions because I love this country too much to sit back and watch our fundamental freedoms give way to indefinite detentions and secret tribunals.
For several years now, this Congress has abrogated its responsibility to ask the tough questions. But today, we have an opportunity to change that. There are difficult decisions ahead of us. I am hopeful that the members of this committee will follow their conscience and not the prevailing political winds of the day. These issues are too important.
Page 16 PREV PAGE TOP OF DOC As we start this process, I for one plan to keep an open mind. But I cannot do my job unless this Administration starts to provide real answers. We have the time to give thoughtful consideration to whether particular powers actually advance security and adequately protect civil liberties. But we can't do that in a vacuum. We need to know the facts. We need to know whether these powers are actually helping protect this country from terrorism. And we need to know their effect on fundamental freedoms. These are not Republican issues, and they are not Democratic issues. They are American issues, and the public deserves answers. I hope we can get some starting today.
Chairman SENSENBRENNER. Now, I would like to welcome our witness today, Attorney General Alberto Gonzales. He was sworn in as our Nation's 80th Attorney General in February of this year. Prior to his appointment, he served as counsel to President George W. Bush throughout the President's first term. Before coming to Washington, he sat on the Supreme Court of Texas, served as Texas Secretary of State, and served as General Counsel to then-Governor Bush. Before joining the Governor's staff, he was a partner with the law firm of Vinson and Elkins. It is also noteworthy to mention that General Gonzales has served in the Air Force, which adds to his distinguished career.
Welcome, General. We are pleased to have you testify today, and if you will please rise and take the oath, you may proceed afterwards.
Do you solemnly swear that the testimony before this Committee will be the truth, the whole truth, and nothing but the truth, so help you, God?
Attorney General GONZALES. I do.
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Chairman SENSENBRENNER. Thank you. Attorney General, you are now recognized.
TESTIMONY OF ALBERTO R. GONZALES, ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE
Attorney General GONZALES. Chairman Sensenbrenner, Congressman Conyers, and Members of the Committee, I am pleased to be here to discuss an issue relating to the security of the American people and the protection of our cherished freedoms.
Following the attacks of September 11, the Administration and Congress came together to prevent another tragedy from happening again. One result of our collaboration was the USA PATRIOT Act, which was passed by Congress with overwhelming bipartisan support after carefully balancing security and civil liberties. And since then, this law has been integral to the Government's prosection of the war on terrorism. We have dismantled terrorist cells, disrupted terrorist plots, and captured terrorists before they could strike.
Many of the most important authorities in the Act are scheduled to expire on December 31 of this year. I believe it is important that they remain available. Al-Qaeda and other terrorist groups still pose a grave threat to the security of the American people and now is not the time to relinquish some of our most effective tools in the fight.
As Congress considers whether to renew these provisions, I am open to suggestions for clarifying and strengthening the Act and I look forward to meeting with those both inside and outside of Congress who have expressed concern about some of these provisions. But let me be clear that I cannot support any proposal that would undermine our ability to combat terrorism effectively.
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All of us continue to have the same objective, ensuring the security of the American people while preserving our civil liberties. I, therefore, hope that we would consider reauthorization in a calm and thoughtful manner and with the understanding that while the tools of the PATRIOT Act are important, they are not extraordinary. Many of these authorities to deal with terrorists have long been available to prosecutors to deal with ordinary criminals, and actions under the Act often must occur with the approval of a Federal judge. Our dialogue should be based on these facts rather than exaggeration.
And because I believe that this discussion must be conducted in an open and honest fashion, I will begin my testimony today by presenting this Committee with relatively new information recently declassified about the use of certain PATRIOT Act provisions.
Of the 16 provisions scheduled to sunset, I understand that some Members of this Committee are most concerned about sections 206 and 215. Section 215 granted national security investigators authority to seek a court order requiring the production of records relevant to their investigation. Just as prosecutors use grand jury subpoenas as the building blocks of criminal investigations, investigators of international terrorism and espionage cases must have the ability, with appropriate safeguards, to request production of evidence that can be essential to the success of an intelligence investigation.
To be clear, a section 215 order, like a subpoena, does not authorize Government investigators to enter anyone's home or search anyone's property. It is a request for information. A Federal judge must approve every request for records under section 215, and the FISA court has granted the Department's request for a 215 order 35 times as of March 30, 2005.
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Although prosecutors have long been able to obtain and have obtained library records in connection with a criminal investigation, I understand section 215 may be considered controversial because of fears concerning its theoretical use to obtain library records. However, I can report the Department has not sought a section 215 order to obtain library or book store records, medical records, or gun sale records. Rather, the provision to date has been used only to obtain driver's license records, public accommodation records, apartment leasing records, credit card records, and subscriber information, such as names and addresses, for telephone numbers captured through court-authorized pen-register devices.
Going forward, the Department anticipates that our use of section 215 will increase as we continue to use the provision to obtain subscriber information for telephone numbers captured through court-authorized pen-register devices, just as such information is routinely obtained in criminal investigations.
Although some of the concerns expressed about section 215 have been based on inaccurate fears about its use, other criticisms have apparently been based on possible ambiguity in the law. The Department has already stated in litigation that the recipient of a section 215 order may consult with an attorney and may challenge that order in court. The Department has also stated that the Government may seek and a court may require only the production of records that are relevant to a national security investigation, a standard similar to the relevant standard that applied to grand jury subpoenas in criminal cases. The text of section 215, however, is not as clear as it could be in these respects. The Department, therefore, is willing to support amendments to section 215 to clarify these points.
Page 20 PREV PAGE TOP OF DOC We cannot, however, support elevating the relevant standard under section 215 to probable cause. According to our lawyers and agents, raising the standard would render section 215 a dead letter. As we all know, probable cause is the standard that law enforcement must meet to justify a search for electronic surveillance. It should not be applied to preliminary investigative tools, such as grand jury subpoenas or section 215 orders, which are used to determine whether more intrusive investigative techniques requiring probable cause are justified.
Section 206 also provides terrorism investigators with an authority long possessed by criminal investigators. In 1986, Congress authorized the use of multi-point or roving wiretaps in criminal investigations. Before the PATRIOT Act, however, these orders were not available for national security investigations under FISA. Therefore, when an international terrorist or spy switched telephones, investigators had to return to the FISA court for a new surveillance order and risk missing key conversations.
In a post-9/11 world, we cannot afford to take that risk. Section 206 fixed this problem by authorizing multi-point surveillance of an international terrorist or spy when a judge finds that the target may take action to thwart surveillance; and as of March 30, this provision had been used 49 times.
As in the case of multi-point wiretaps for traditional criminal investigations, section 206 contains ample safeguards to protect the privacy of innocent Americans. The target of roving surveillance must be identified or described specifically in the order. The Government cannot use a 206 roving wiretap order to move from target to target. If the Government wants to obtain a wiretap for a new target, it must go back to court.
Page 21 PREV PAGE TOP OF DOC Another important FISA-related PATRIOT Act provision is section 207. Prior to this law, the Justice Department invested considerable time returning to court to renew existing orders. Section 207 substantially reduced this investment of time by increasing the maximum time duration for FISA electronic surveillance and physical search orders.
The Department estimates that section 207 has saved nearly 60,000 attorney hours. In other words, it has saved 30 lawyers a year's work, and this estimate does not account for the time saved by FBI agents, administrative staff, and the judiciary. Department personnel were able to spend that time pursuing other investigations and oversight matters.
And given section 207's success, I am today proposing additional amendments to increase the efficiency of the FISA process, copies of which will be presented to this Committee today. And had these proposals been included in the PATRIOT Act, the Department estimates that an additional 25,000 attorney hours would have been saved in the interim. Most of these ideas were specifically endorsed in the recent report of the WMD Commission, which said that these amendments would allow the Department both to ''focus their attention where it is most needed,'' and to maintain the current level of oversight paid to cases implicating the civil liberties of Americans.
Finally, I would like to touch on another provision that has generated significant discussion. Section 213, which is not scheduled to sunset, established a nationwide standard for issuing delayed notice search warrants, which have been used by law enforcement and criminal investigations and approved by courts for decades. Under section 213, law enforcement must always provide notice to a person whose property is searched. A judge may allow that notice to be temporarily delayed, but that person will always receive notification.
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The Department uses this tool only when necessary. For instance, from enactment of the PATRIOT Act through January 31 of this year, the Department used section 213 to request approximately 155 delayed notice search warrants, which have been issued in terrorism, drug, murder, and other criminal investigations. We estimate that this number represents less than one-fifth of 1 percent of all search warrants obtained by the Department during this time. In other words, in more than 499 of 500 cases, the Department provides immediate notice of the search. In appropriate cases, however, delayed notice search warrants are necessary, because if terrorists or other criminals are prematurely tipped off that they are under investigation, they may destroy evidence, harm witnesses, or flee prosecution.
I hope that this information will demystify these essential national security tools, eliminate some of the confusion surrounding their use, and enrich the debate about the Department's counterterrorism efforts.
I believe the authorities of the PATRIOT Act are critical to our Nation's success in the war against terrorism. I am, therefore, committed to providing the information that this Committee and the American public need to thoroughly evaluate its effectiveness. The Act has a proven record of success in protecting the security of the American people and we cannot afford to allow its most important provisions to sunset.
I look forward to working with the Committee closely in the weeks ahead, listening to your concerns, and joining together again to protect the security of the American people. Thank you, Mr. Chairman.
Page 23 PREV PAGE TOP OF DOC Chairman SENSENBRENNER. Thank you very much, Attorney General Gonzales.
[The prepared statement of Mr. Gonzales follows:]
PREPARED STATEMENT OF THE HONORABLE ALBERTO R. GONZALES
Chairman Sensenbrenner, Ranking Member Conyers, and Members of the Committee:
It is my pleasure to appear before you this afternoon to discuss the USA PATRIOT Act. Approximately three-and-a-half years ago, our Nation suffered a great tragedy. Thousands of our fellow citizens were murdered at the World Trade Center, the Pentagon, and a field in rural Pennsylvania. We will never forget that day or the heroes who perished on that hallowed ground. Forever in our Nation's collective memory are stories of the New York City firefighters who rushed into burning buildings so that others might live and of the brave passengers who brought down United Airlines Flight 93 before it could reach Washington, DC, and the messages from those trapped in the World Trade Center saying their last goodbyes to loved ones as they faced certain death will stay forever in our hearts.
In the wake of this horrific attack on American soil, we mourned our Nation's terrible loss. In addition, we came together in an effort to prevent such a tragedy from ever happening again. Members of both parties worked together on legislation to ensure that investigators and prosecutors would have the tools they need to uncover and disrupt terrorist plots. Additionally, members joined hands across the aisle to guarantee that our efforts to update and strengthen the laws governing the investigation and prosecution of terrorism remained firmly within the parameters of the Constitution and our fundamental national commitment to the protection of civil rights and civil liberties.
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The result of this collaboration was the USA PATRIOT Act, which passed both Houses of the Congress with overwhelming bipartisan majorities and was signed into law by President Bush on October 26, 2001. In the past three-and-a-half years, the USA PATRIOT Act has been an integral part of the Federal Government's successful prosecution of the war against terrorism. Thanks to the Act, we have been able to identify terrorist operatives, dismantle terrorist cells, disrupt terrorist plots, and capture terrorists before they have been able to strike.
Many of the most important provisions of the USA PATRIOT Act, however, are scheduled to expire at the end of this year. Therefore, I am here today primarily to convey one simple message: All provisions of the USA PATRIOT Act that are scheduled to sunset at the end of this year must be made permanent. While we have made considerable progress in the war against terrorism in the past three-and-a-half years, al Qaeda and other terrorist groups still pose a grave threat to the safety and security of the American people. The tools contained in the USA PATRIOT Act have proven to be essential weapons in our arsenal to combat the terrorists, and now is not the time for us to be engaging in unilateral disarmament. Moreover, many provisions in the Act simply updated the law to reflect recent technological developments and have been used, as was intended by Congress, not only in terrorism cases, but also to combat other serious criminal conduct. If these provisions are not renewed, the Department's ability to combat serious offenses such as cybercrime, child pornography, and kidnappings will also be hindered.
As Congress considers whether to renew key USA PATRIOT Act provisions, I also wish to stress that I am open to any ideas that may be offered for improving these provisions. If members of this Committee or other members of Congress wish to offer proposals in this regard, I and others at the Department of Justice would be happy to consult with you and review your ideas. However, let me be clear about one thing: I will not support any proposal that would undermine the ability of investigators and prosecutors to disrupt terrorist plots and combat terrorism effectively.
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It is also my sincere hope that we will be able to consider these crucial issues in a calm and thoughtful fashion. All of us seek to ensure the safety and security of the American people and to protect their civil liberties as well. As this debate goes forward, I will treat those who express concerns about the USA PATRIOT Act with respect and listen to their concerns with an open mind. I also hope that all who participate in the debate will stick to the facts and avoid overheated rhetoric that inevitably tends to obfuscate rather than elucidate the truth.
Today, I would like to use the rest of my testimony to explain how key provisions of the USA PATRIOT Act have helped to protect the American people. I will particularly focus on those sections of the Act that are scheduled to expire at the end of 2005. To begin with, I will discuss how the USA PATRIOT Act has enhanced the federal government's ability to share intelligence. Then, I will explain how the USA PATRIOT Act provided terrorism investigators with many of the same tools long available to investigators in traditional criminal cases. Additionally, I will explore how the USA PATRIOT Act updated the law to reflect new technology. And finally, I will review how the Act protects the civil liberties of the American people and respects the important role of checks and balances within the Federal Government.
The most important reforms contained in the USA PATRIOT Act improved coordination and information sharing within the Federal Government. Prior to the attacks of September 11, 2001, our counterterrorism efforts were severely hampered by unnecessary obstacles and barriers to information sharing. These obstacles and barriers, taken together, have been described as a ''wall'' that largely separated intelligence personnel from law enforcement personnel, thus dramatically hampering the Department's ability to detect and disrupt terrorist plots.
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It is vitally important for this Committee to understand how the ''wall'' was developed and how it was dismantled, not for the purpose of placing blame but rather to ensure that it is never rebuilt. Before the passage of the USA PATRIOT Act, the Foreign Intelligence Surveillance Act (FISA) mandated that applications for orders authorizing electronic surveillance or physical searches under FISA were required to include a certification that ''the purpose'' of the surveillance or search was to gather foreign intelligence information. This requirement, however, came to be interpreted by the courts and later the Department of Justice to require that the ''primary purpose'' of the collection was to obtain foreign intelligence information rather than evidence of a crime. And, because the courts evaluated the Department's purpose for using FISA, in part, by examining the nature and extent of coordination between intelligence and law enforcement personnel, the more coordination that occurred, the more likely courts would find that law enforcement, rather than foreign intelligence, had become the primary purpose of the surveillance or search, a finding that would prevent the court from authorizing surveillance under FISA. As a result, over the years, the ''primary purpose'' standard had the effect of constructing a metaphorical ''wall'' between intelligence and law enforcement personnel.
During the 1980s, a set of largely unwritten rules only limited information sharing between intelligence and law enforcement officials to some degree. In 1995, however, the Department established formal procedures that limited the sharing of information between intelligence and law enforcement personnel. The promulgation of these procedures was motivated in part by the concern that the use of FISA authorities would not be allowed to continue in particular investigations if criminal prosecution began to overcome intelligence gathering as an investigation's primary purpose.
Page 27 PREV PAGE TOP OF DOC As they were originally designed, the procedures were intended to permit a degree of interaction and information sharing between prosecutors and intelligence officers, while at the same time ensuring that the FBI would be able to obtain or continue FISA surveillance and later use the fruits of that surveillance in a criminal prosecution. Over time, however, coordination and information sharing between intelligence and law enforcement investigators became even more limited in practice than was permitted in theory. Due both to the complexities of the restrictions on information sharing and to a perception that improper information sharing could end a career, investigators often erred on the side of caution and refrained from sharing information. The end result was a culture within the Department sharply limiting the exchange of information between intelligence and law enforcement officials.
In hindsight, it is difficult to overemphasize the negative impact of the ''wall.'' In order to uncover terrorist plots, it is essential that investigators have access to as much information as possible. Often, only by piecing together disparate and seemingly unrelated points of information are investigators able to detect suspicious patterns of activity, a phenomenon generally referred to as ''connecting the dots.'' If, however, one set of investigators has access to only one-half of the dots, and another set of investigators has access to the other half of the dots, the likelihood that either set of investigators will be able to connect the dots is significantly reduced.
The operation of the ''wall'' was vividly illustrated in testimony from Patrick Fitzgerald, U.S. Attorney for the Northern District of Illinois, before the Senate Judiciary Committee:
I was on a prosecution team in New York that began a criminal investigation of Usama Bin Laden in early 1996. The teamprosecutors and FBI agents assigned to the criminal casehad access to a number of sources. We could talk to citizens. We could talk to local police officers. We could talk to other U.S. Government agencies. We could talk to foreign police officers. Even foreign intelligence personnel. And foreign citizens. And we did all those things as often as we could. We could even talk to al Qaeda membersand we did. We actually called several members and associates of al Qaeda to testify before a grand jury in New York. And we even debriefed al Qaeda members overseas who agreed to become cooperating witnesses.
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But there was one group of people we were not permitted to talk to. Who? The FBI agents across the street from us in lower Manhattan assigned to a parallel intelligence investigation of Usama Bin Laden and al Qaeda. We could not learn what information they had gathered. That was ''the wall.''
Thanks in large part to the USA PATRIOT Act, this ''wall'' has been lowered. Section 218 of the Act, in particular, helped to tear down the ''wall'' by eliminating the ''primary purpose'' requirement under FISA and replacing it with a ''significant purpose'' test. Under section 218, the Department may now conduct FISA surveillance or searches if foreign-intelligence gathering is a ''significant purpose'' of the surveillance or search. As a result, courts no longer need to compare the relative weight of the ''foreign intelligence'' and ''law enforcement'' purposes of a proposed surveillance or search and determine which is the primary purpose; they simply need to determine whether a significant purpose of the surveillance is to obtain foreign intelligence. The consequence is that intelligence and law enforcement personnel may share information much more freely without fear that such coordination will undermine the Department's ability to continue to gain authorization for surveillance under FISA.
Section 218 of the USA PATRIOT Act not only removed what was perceived at the time as the primary impediment to robust information sharing between intelligence and law enforcement personnel; it also provided the necessary impetus for the removal of the formal administrative restrictions as well as the informal cultural restrictions on information sharing. Thanks to the USA PATRIOT Act, the Department has been able to move from a culture where information sharing was viewed with a wary eye to one where it is an integral component of our counterterrorism strategy. Following passage of the Act, the Department adopted new procedures specifically designed to increase information sharing between intelligence and law enforcement personnel. Moreover, Attorney General Ashcroft instructed every U.S. Attorney across the country to review intelligence files to discover whether there was a basis for bringing criminal charges against the subjects of intelligence investigations. He also directed every U.S. Attorney to develop a plan to monitor intelligence investigations, to ensure that information about terrorist threats is shared with other agencies, and to consider criminal charges in those investigations.
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The increased information sharing facilitated by section 218 of the USA PATRIOT Act has led to tangible results in the war against terrorism: plots have been disrupted; terrorists have been apprehended; and convictions have been obtained in terrorism cases. Information sharing between intelligence and law enforcement personnel, for example, was critical in successfully dismantling a terror cell in Portland, Oregon, popularly known as the ''Portland Seven,'' as well as a terror cell in Lackawanna, New York. Such information sharing has also been used in the prosecution of: several persons involved in al Qaeda drugs-for-weapons plot in San Diego, two of whom have pleaded guilty; nine associates in Northern Virginia of a violent extremist group known as Lashkar-e-Taiba that has ties to al Qaeda, who were convicted and sentenced to prison terms ranging from four years to life imprisonment; two Yemeni citizens, Mohammed Ali Hasan Al-Moayad and Mohshen Yahya Zayed, who were charged and convicted for conspiring to provide material support to al Qaeda and HAMAS; Khaled Abdel Latif Dumeisi, who was convicted by a jury in January 2004 of illegally acting as an agent of the former government of Iraq as well as two counts of perjury; and Enaam Arnaout, the Executive Director of the Illinois-based Benevolence International Foundation, who had a long-standing relationship with Osama Bin Laden and pleaded guilty to a racketeering charge, admitting that he diverted thousands of dollars from his charity organization to support Islamic militant groups in Bosnia and Chechnya. Information sharing between intelligence and law enforcement personnel has also been extremely valuable in a number of other ongoing or otherwise sensitive investigations that I am not at liberty to discuss today.
While the ''wall'' primarily blocked the flow of information from intelligence investigators to law enforcement investigators, another set of barriers, before the passage of the USA PATRIOT Act, often prevented law enforcement officials from sharing information with intelligence personnel and others in the government responsible for protecting the national security. Federal law, for example, was interpreted generally to prohibit federal prosecutors from disclosing information from grand jury testimony and criminal investigative wiretaps to intelligence and national defense officials even if that information indicated that terrorists were planning a future attack, unless such officials were actually assisting with the criminal investigation. Sections 203(a) and (b) of the USA PATRIOT Act, however, eliminated these obstacles to information sharing by allowing for the dissemination of that information to assist Federal law enforcement, intelligence, protective, immigration, national defense, and national security officials in the performance of their official duties, even if their duties are unrelated to the criminal investigation. (Section 203(a) covers grand jury information, and section 203(b) covers wiretap information). Section 203(d), likewise, ensures that important information that is obtained by law enforcement means may be shared with intelligence and other national security officials. This provision does so by creating a generic exception to any other law purporting to bar Federal law enforcement, intelligence, immigration, national defense, or national security officials from receiving, for official use, information regarding foreign intelligence or counterintelligence obtained as part of a criminal investigation. Indeed, section 905 of the USA PATRIOT Act requires the Attorney General to expeditiously disclose to the Director of Central Intelligence foreign intelligence acquired by the Department of Justice in the course of a criminal investigation unless disclosure of such information would jeopardize an ongoing investigation or impair other significant law enforcement interests.
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The Department has relied on section 203 in disclosing vital information to the intelligence community and other federal officials on many occasions. Such disclosures, for instance, have been used to assist in the dismantling of terror cells in Portland, Oregon and Lackawanna, New York, to support the revocation of suspected terrorists' visas, to track terrorists' funding sources, and to identify terrorist operatives overseas.
The information sharing provisions described above have been heralded by investigators in the field as the most important provisions of the USA PATRIOT Act. Their value has also been recognized by the 9/11 Commission, which stated in its official report that ''[t]he provisions in the act that facilitate the sharing of information among intelligence agencies and between law enforcement and intelligence appear, on balance, to be beneficial.''
Since the passage of the USA PATRIOT Act, Congress has taken in the Homeland Security Act of 2002 and the Intelligence Reform and Terrorism Prevention Act of 2004 other important steps forward to improve coordination and information sharing throughout the Federal Government. If Congress does not act by the end of the year, however, we will soon take a dramatic step back to the days when unnecessary obstacles blocked vital information sharing. Three of the key information sharing provisions of the USA PATRIOT Act, sections 203(b), 203(d), and 218, are scheduled to sunset at the end of the year. It is imperative that we not allow this to happen. To ensure that the ''wall'' is not reconstructed and investigators are able to ''connect the dots'' to prevent future terrorist attacks, these provisions must be made permanent.
USING PREEXISTING TOOLS IN TERRORISM INVESTIGATIONS
Page 31 PREV PAGE TOP OF DOC In addition to enhancing the information sharing capabilities of the Department, the USA PATRIOT Act also permitted several existing investigative tools that had been used for years in a wide range of criminal investigations to be used in terrorism cases as well. Essentially, these provisions gave investigators the ability to fight terrorism utilizing many of the same court-approved tools that have been used successfully and constitutionally for many years in drug, fraud, and organized crime cases.
Section 201 of the USA PATRIOT Act is one such provision. In the context of criminal law enforcement, Federal investigators have long been able to obtain court orders to conduct wiretaps when investigating numerous traditional criminal offenses. Specifically, these orders have authorized the interception of certain communications to investigate the predicate offenses listed in the federal wiretap statute, 18 U.S.C. §2516(1). The listed offenses include numerous crimes, such as drug crimes, mail fraud, passport fraud, embezzlement from pension and welfare funds, the transmission of wagering information, and obscenity offenses.
Prior to the passage of the USA PATRIOT Act, however, certain extremely serious crimes that terrorists are likely to commit were not included in this list, which prevented law enforcement authorities from using wiretaps to investigate these serious terrorism-related offenses. As a result, law enforcement could obtain under appropriate circumstances a court order to intercept phone communications in a passport fraud investigation but not a chemical weapons investigation or an investigation into terrorism transcending national boundaries.
Section 201 of the Act ended this anomaly in the law by amending the criminal wiretap statute to add the following terrorism-related crimes to the list of wiretap predicates: (1) chemical-weapons offenses; (2) certain homicides and other acts of violence against Americans occurring outside of the country; (3) the use of weapons of mass destruction; (4) acts of terrorism transcending national borders; (5) financial transactions with countries which support terrorism; and (6) material support of terrorists and terrorist organizations.
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This provision simply enables investigators to use wiretaps when looking into the full range of terrorism-related crimes. This authority makes as much, if not more, sense in the war against terrorism as it does in traditional criminal investigations; if wiretaps are an appropriate investigative tool to be utilized in cases involving bribery, gambling, and obscenity, then surely investigators should be able to use them when investigating the use of weapons of mass destruction, acts of terrorism transcending national borders, chemical weapons offenses, and other serious crimes that terrorists are likely to commit.
It is also important to point out that section 201 preserved all of the pre-existing standards in the wiretap statute. For example, law enforcement must file an application with a court, and a court must find that: (1) there is probable cause to believe an individual is committing, has committed, or is about to commit a particular predicate offense; (2) there is probable cause to believe that particular communications concerning that offense will be obtained through the wiretap; and (3) ''normal investigative procedures'' have been tried and failed or reasonably appear to be unlikely to succeed or are too dangerous.
Section 206 of the USA PATRIOT Act, like section 201 discussed above, provided terrorism investigators with an authority that investigators have long possessed in traditional criminal investigations. Before the passage of the Act, multipoint or so-called ''roving'' wiretap orders, which attach to a particular suspect rather than a particular phone or communications facility, were not available under FISA. As a result, each time an international terrorist or spy switched communications providers, for example, by changing cell phones or Internet accounts, investigators had to return to court to obtain a new surveillance order, often leaving investigators unable to monitor key conversations.
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Congress eliminated this problem with respect to traditional criminal crimes, such as drug offenses and racketeering, in 1986 when it authorized the use of multi-point or ''roving'' wiretaps in criminal investigations. But from 1986 until the passage of the USA PATRIOT Act in 2001, such authority was not available under FISA for cases involving terrorists and spies. Multi-point wiretaps could be used to conduct surveillance of drug dealers but not international terrorists. However, such authority was needed under FISA. International terrorists and foreign intelligence officers are trained to thwart surveillance by changing the communications facilities they use, thus making vital the ability to obtain ''roving'' surveillance. Without such surveillance, investigators were often left two steps behind sophisticated terrorists.
Section 206 of the Act amended the law to allow the FISA Court to authorize multi-point surveillance of a terrorist or spy when it finds that the target's actions may thwart the identification of those specific individuals or companies, such as communications providers, whose assistance may be needed to carry out the surveillance. Thus, the FISA Court does not have to name in the wiretap order each telecommunications company or other ''specified person'' whose assistance may be required.
A number of federal courtsincluding the Second, Fifth, and Ninth Circuitshave squarely ruled that multi-point wiretaps are perfectly consistent with the Fourth Amendment. Section 206 simply authorizes the same constitutional techniques used to investigate ordinary crimes to be used in national-security investigations. Despite this fact, section 206 remains one of the more controversial provisions of the USA PATRIOT Act. However, as in the case of multi-point wiretaps used for traditional criminal investigations, section 206 contains ample safeguards to protect the privacy of innocent Americans.
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First, section 206 did not change FISA's requirement that the target of multi-point surveillance must be identified or described in the order. In fact, section 206 is always connected to a particular target of surveillance. For example, even if the Justice Department is not sure of the actual identity of the target of such a wiretap, FISA nonetheless requires our attorneys to provide a description of the target of the electronic surveillance to the FISA Court prior to obtaining multi-point surveillance order.
Second, just as the law required prior to the Act, the FISA Court must find that there is probable cause to believe the target of surveillance is either a foreign power or an agent of a foreign power, such as a terrorist or spy. In addition, the FISA Court must also find that the actions of the target of the application may have the effect of thwarting surveillance before multi-point surveillance may be authorized.
Third, section 206 in no way altered the robust FISA minimization procedures that limit the acquisition, retention, and dissemination by the government of information or communications involving United States persons.
Section 214 is yet another provision of the USA PATRIOT Act that provides terrorism investigators with the same authority that investigators have long possessed in traditional criminal investigations. Specifically, this section allows the government to obtain a pen register or trap-and-trace order in national security investigations where the information to be obtained is likely to be relevant to an international terrorism or espionage investigation. A pen register or trap-and-trace device can track routing and addressing information about a communicationfor example, which numbers are dialed from a particular telephone. Such devices, however, are not used to collect the content of communications.
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Under FISA, intelligence officers may seek a court order for a pen register or trap-and-trace to gather foreign intelligence information or information about international terrorism. Prior to the enactment of the USA PATRIOT Act, however, FISA required government personnel to certify not just that the information they sought to obtain with a pen register or trap-and-trace device would be relevant to their investigation, but also that the particular facilities being monitored, such as phones, were being used by foreign governments, international terrorists, or spies. As a result, it was much more difficult to obtain a pen register or trap-and-trace device order under FISA than it was under the criminal wiretap statute, where the applicable standard was and remains simply one of relevance in an ongoing criminal investigation.
Section 214 of the Act simply harmonized the standard for obtaining a pen register order in a criminal investigation and a national-security investigation by eliminating the restriction limiting FISA pen register and trap-and-trace orders to facilities used by foreign agents or agents of foreign powers. Applicants must still, however, certify that a pen register or trap-and-trace device is likely to reveal information relevant to an international terrorism or espionage investigation or foreign intelligence information not concerning a United States person. This provision made the standard contained in FISA for obtaining a pen register or trap-and-trace order parallel with the standard for obtaining those same orders in the criminal context. Now, as before, investigators cannot install a pen register or trap-and-trace device unless they apply for and receive permission from the FISA Court.
I will now turn to section 215, which I recognize has become the most controversial provision in the USA PATRIOT Act. This provision, however, simply granted national security investigators the same authority that criminal investigators have had for centuriesthat is, to request the production of records that may be relevant to their investigation. For years, ordinary grand juries have issued subpoenas to obtain records from third parties that are relevant to criminal inquiries. But just as prosecutors need to obtain such records in order to advance traditional criminal investigations, so, too, must investigators in international terrorism and espionage cases have the ability, with appropriate safeguards, to request the production of relevant records.
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While obtaining business records is a long-standing law enforcement tactic that has been considered an ordinary tool in criminal investigations, prior to the USA PATRIOT Act it was difficult for investigators to obtain access to the same types of records in connection with foreign intelligence investigations. Such records, for example, could be sought only from common carriers, public accommodation providers, physical storage facility operators, and vehicle rental agencies. In addition, intelligence investigators had to meet a higher evidentiary standard to obtain an order requiring the production of such records than prosecutors had to meet to obtain a grand jury subpoena to require the production of those same records in a criminal investigation.
To address this anomaly in the law, section 215 of the Act made several important changes to the FISA business-records authority so that intelligence agents would be better able to obtain crucial information in important national-security investigations. Section 215 expanded the types of entities that can be compelled to disclose information. Under the old provision, the FBI could obtain records only from ''a common carrier, public accommodation facility, physical storage facility or vehicle rental facility.'' The new provision contains no such restrictions. Section 215 also expanded the types of items that can be requested. Under the old authority, the FBI could only seek ''records.'' Now, the FBI can seek ''any tangible things (including books, records, papers, documents, and other items).''
I recognize that section 215 has been subject to a great deal of criticism because of its speculative application to libraries, and based on what some have said about the provision, I can understand why many Americans would be concerned. The government should not be obtaining the library records of law-abiding Americans, and I will do everything within my power to ensure that this will not happen on my watch.
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Section 215 does not focus on libraries. Indeed, the USA PATRIOT Act nowhere mentions the word ''library,'' a fact that many Americans are surprised to learn. Section 215 simply does not exempt libraries from the range of entities that may be required to produce records. Now some have suggested, since the Department has no interest in the reading habits of law-abiding Americans, that section 215 should be amended to forbid us from using the provision to request the production of records from libraries and booksellers. This, however, would be a serious mistake.
Libraries are currently not safe havens for criminals. Grand jury subpoenas have long been used to obtain relevant records from libraries and bookstores in criminal investigations. In fact, law enforcement used this authority in investigating the Gianni Versace murder case as well as the case of the Zodiac gunman in order to determine who checked out particular books from public libraries that were relevant in those murder investigations. And if libraries are not safe havens for common criminals, neither should they be safe havens for international terrorists or spies, especially since we know that terrorists and spies have used libraries to plan and carry out activities that threaten our national security. The Justice Department, for instance, has confirmed that, as recently as the winter and spring of 2004, a member of a terrorist group closely affiliated with al Qaeda used Internet service provided by a public library to communicate with his confederates.
Section 215, moreover, contains very specific safeguards in order to ensure that the privacy of law-abiding Americans, both with respect to their library records as well as other types of records, is respected. First, section 215 expressly protects First Amendment rights, unlike grand jury subpoenas. Even though libraries and bookstores are not specifically mentioned in the provision, section 215 does prohibit the government from using this authority to conduct investigations ''of a United States person solely on the basis of activities protected by the First Amendment to the Constitution of the United States.'' In other words, the library habits of ordinary Americans are of no interest to those conducting terrorism investigations, nor are they permitted to be.
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Second, any request for the production of records under section 215 must be issued through a court order. Therefore, investigators cannot use this authority unilaterally to compel any entity to turn over its records; rather, a judge must first approve the government's request. By contrast, a grand jury subpoena is typically issued without any prior judicial review or approval. Both grand jury subpoenas and section 215 orders are also governed by a standard of relevance. Under section 215, agents may not seek records that are irrelevant to an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.
Third, section 215 has a narrow scope. It can only be used in an authorized investigation (1) ''to obtain foreign intelligence information not concerning a United States person''; or (2) ''to protect against international terrorism or clandestine intelligence activities.'' It cannot be used to investigate ordinary crimes, or even domestic terrorism. On the other hand, a grand jury many obtain business records in investigations of any federal crime.
Finally, section 215 provides for thorough congressional oversight that is not present with respect to grand-jury subpoenas. On a semi-annual basis, I must ''fully inform'' appropriate congressional committees concerning all requests for records under section 215 as well as the number of section 215 orders granted, modified, or denied. To date, the Department has provided Congress with six reports regarding its use of section 215.
Admittedly, the recipient of an order under section 215 is not permitted to make that order publicly known, and this confidentiality requirement has generated some fear among the public. It is critical, however, that terrorists are not tipped off prematurely about sensitive investigations. Otherwise, their conspirators may flee and key information may be destroyed before the government's investigation has been completed. As the U.S. Senate concluded when adopting FISA: ''By its very nature, foreign intelligence surveillance must be conducted in secret.''
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UPDATING THE LAW TO REFLECT NEW TECHNOLOGY
As well as providing terrorism investigators many of the same tools that law enforcement investigators had long possessed in traditional criminal investigations, many sections of the USA PATRIOT Act updated the law to reflect new technology and to prevent sophisticated terrorists and criminals from exploiting that new technology. Several of these provisions, some of which are currently set to sunset at the end of this year, simply updated tools available to law enforcement in the context of ordinary criminal investigations to address recent technological developments, while others sought to make existing criminal statutes technology-neutral. I wish to focus on five such provisions of the Act, which are currently set to expire at the end of 2005. The Department believes that each of these provisions has proven valuable and should be made permanent.
Section 212 amended the Electronic Communications Privacy Act to authorize electronic communications service providers to disclose communications and records relating to customers or subscribers in an emergency involving the immediate danger of death or serious physical injury. Before the USA PATRIOT Act, for example, if an Internet service provider had learned that a customer was about to commit a terrorist act and notified law enforcement to that effect, the service provider could have been subject to civil lawsuits. Now, however, providers are permitted voluntarily to turn over information to the government in emergencies without fear of civil liability. It is important to point out that they are under no obligation whatsoever to review customer communications and records. This provision also corrected an anomaly in prior law under which an Internet service provider could voluntarily disclose the content of communications to protect itself against hacking, but could not voluntarily disclose customer records for the same purpose.
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Communications providers have relied upon section 212 to disclose vital and time-sensitive information to the government on many occasions since the passage of the USA PATRIOT Act, thus saving lives. To give just one example, this provision was used to apprehend an individual threatening to destroy a Texas mosque before he could carry out his threat. Jared Bjarnason, a 30-year-old resident of El Paso, Texas, sent an e-mail message to the El Paso Islamic Center on April 18, 2004, threatening to burn the Islamic Center's mosque to the ground if hostages in Iraq were not freed within three days. Section 212 allowed FBI officers investigating the threat to obtain information quickly from electronic communications service providers, leading to the identification and arrest of Bjarnason before he could attack the mosque. It is not clear, however, that absent section 212 investigators would have been able to locate and apprehend Bjarnason in time.
Section 212 of the USA PATRIOT Act governed both the voluntary disclosure of the content of communications and the voluntary disclosure of non-content customer records in emergency situations; but in 2002, the Homeland Security Act repealed that portion of section 212 governing the disclosure of the content of communications in emergency situations and placed similar authority in a separate statutory provision that is not scheduled to sunset. The remaining portion of section 212, governing the disclosure of customer records, however, is set to expire at the end of 2005. Should section 212 expire, communications providers would be able to disclose the content of customers' communications in emergency situations but would not be able voluntarily to disclose non-content customer records pertaining to those communications. Such an outcome would defy common sense. Allowing section 212 to expire, moreover, would dramatically restrict communications providers' ability voluntarily to disclose life-saving information to the government in emergency situations.
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Section 202, for its part, modernized the criminal code in light of the increased importance of telecommunications and digital communications. The provision allows law enforcement to use pre-existing wiretap authorities to intercept voice communications, such as telephone conversations, in the interception of felony offenses under the Computer Fraud and Abuse Act. These include many important cybercrime and cyberterrorism offenses, such as computer espionage and intentionally damaging a Federal Government computer. Significantly, section 202 preserved all of the pre-existing standards in the wiretap statute, meaning that law enforcement must file an application with a court, and a court must find that: (1) there is probable cause to believe an individual is committing, has committed, or is about to commit a particular predicate offense; (2) there is probable cause to believe that particular communications concerning that offense will be obtained through the wiretap; and (3) ''normal investigative procedures'' have been tried and failed or reasonably appear to be unlikely to succeed or are too dangerous. If wiretaps are an appropriate investigative tool to be utilized in cases involving bribery, gambling, and obscenity, as was the case prior to the passage of the USA PATRIOT Act, then surely investigators should be able to use them when investigating computer espionage, extortion, and other serious cybercrime and cyberterrorism offenses.
Turning to section 220, that provision allows courts, in investigations over which they have jurisdiction, to issue search warrants for electronic evidence stored outside of the district where they are located. Federal law requires investigators to use a search warrant to compel an Internet service provider to disclose unopened e-mail messages that are less than six months old. Prior to the USA PATRIOT Act, some courts interpreting Rule 41 of the Federal Rules of Criminal Procedure declined to issue search warrants for e-mail messages stored on servers in other districts, leading to delays in many time-sensitive investigations as investigators had to bring agents, prosecutors, and judges in another district up to speed. Requiring investigators to obtain warrants in distant jurisdictions also placed enormous administrative burdens on districts in which major Internet service providers are located, such as the Northern District of California and the Eastern District of Virginia.
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Section 220 fixed this problem. It makes clear, for example, that a judge with jurisdiction over a murder investigation in Pennsylvania can issue a search warrant for e-mail messages pertaining to that investigation that were stored on a server in Silicon Valley. Thus, investigators in Pennsylvania, under this scenario, can ask a judge familiar with the investigation to issue the warrant rather than having to ask Assistant United States Attorneys in California, who are unfamiliar with the case, to ask a judge in the United States District Court for the Northern District of California, who is also unfamiliar with the case, to issue the warrant.
The Department has already utilized section 220 in important terrorism investigations. As Assistant Attorney General Christopher Wray testified before this committee on October 21, 2003, section 220 was useful in the Portland terror cell case because ''the judge who was most familiar with the case was able to issue the search warrants for the defendants' e-mail accounts from providers in other districts, which dramatically sped up the investigation and reduced all sorts of unnecessary burdens on other prosecutors, agents and courts.'' This section has been similarly useful in the ''Virginia Jihad'' case involving a Northern Virginia terror cell and in the case of the infamous ''shoebomber'' terrorist Richard Reid. Moreover, the ability to obtain search warrants in the jurisdiction of the investigation has proven critical to the success of complex, multi-jurisdictional child pornography cases.
Contrary to concerns voiced by some, section 220 does not promote forum-shopping; the provision may be used only in a court with jurisdiction over the investigation. Investigators may not ask any court in the country to issue a warrant to obtain electronic evidence.
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It is imperative that section 220 be renewed; allowing the provision to expire would delay many time-sensitive investigations and result in the inefficient use of investigators', prosecutors', and judges' time.
Moving to section 209, that provision made existing statutes technology-neutral by providing that voicemail messages stored with a third-party provider should be treated like e-mail messages and answering machine messages, which may be obtained through a search warrant. Previously, such messages fell under the rubric of the more restrictive provisions of the criminal wiretap statute, which apply to the interception of live conversations. Given that stored voice communications possess few of the sensitivities associated with the real-time interception of telephone communications, it was unreasonable to subject attempts to retrieve voice-mail message stored with third-party providers to the same burdensome process as requests for wiretaps. Section 209 simply allows investigators, upon a showing of probable cause, to apply for and receive a court-ordered search warrant to obtain voicemails held by a third-party provider, preserving all of the pre-existing standards for the availability of search warrants. Since the passage of the USA PATRIOT Act, such search warrants have been used in a variety of criminal cases to obtain key evidence, including voicemail messages left for foreign and domestic terrorists, and to investigate a large-scale Ecstasy smuggling ring based in the Netherlands.
The speed with which voicemail is seized and searched can often be critical to an investigation given that deleted messages are lost forever. Allowing section 209 to expire, as it is set to do in 2005, would once again require different treatment for stored voicemail messages than for messages stored on an answering machine in a person's home, needlessly hampering law enforcement efforts to investigate crimes and obtain evidence in a timely manner.
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Section 217 similarly makes criminal law technology-neutral, placing cyber-trespassers on the same footing as physical intruders by allowing victims of computer-hacking crimes voluntarily to request law enforcement assistance in monitoring trespassers on their computers. Just as burglary victims have long been able to invite officers into their homes to catch the thieves, hacking victims can now invite law enforcement assistance to assist them in combating cyber-intruders. Section 217 does not require computer operators to involve law enforcement if they detect trespassers on their systems; it simply gives them the option to do so. In so doing, section 217 also preserves the privacy of law-abiding computer users by sharply limiting the circumstances under which section 217 is available. Officers may not agree to help a computer owner unless (1) they are engaged in a lawful investigation; (2) there is reason to believe that the communications will be relevant to that investigation; and (3) their activities will not acquire the communications of non-trespassers. Moreover, the provision amended the wiretap statute to protect the privacy of an Internet service provider's customers by providing a definition of ''computer trespasser'' which excludes an individual who has a contractual relationship with the service provider. Therefore, for example, section 217 would not allow Earthlink to ask law enforcement to help monitor a hacking attack on its system that was initiated by one of its own subscribers.
Since its enactment, section 217 has played a key role in sensitive national security matters, including investigations into hackers' attempts to compromise military computer systems. Section 217 is also particularly helpful when computer hackers launch massive ''denial of service'' attackswhich are designed to shut down individual web sites, computer networks, or even the entire Internet. Allowing section 217 to expire, which is set to occur in 2005, would lead to a bizarre world in which a computer hacker's supposed privacy right would trump the legitimate privacy rights of a hacker's victims, making it more difficult to combat hacking and cyberterrorism effectively.
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PROTECTING CIVIL LIBERTIES
While the USA PATRIOT Act provided investigators and prosecutors with tools critical for protecting the American people, it is vital to note that it did so in a manner fully consistent with constitutional rights of the American people. In section 102 of the USA PATRIOT Act, Congress expressed its sense that ''the civil rights and civil liberties of all Americans . . . must be protected,'' and the USA PATRIOT Act does just that.
In the first place, the USA PATRIOT Act contains several provisions specifically designed to provide additional protection to the civil rights and civil liberties of all Americans. Section 223, for example, allows individuals aggrieved by any willful violation of the criminal wiretap statute (Title III), the Electronic Communications Privacy Act, or certain provisions the FISA, to file an action in United States District Court to recover not less than $10,000 in damages. This provision allows an individual whose privacy is violated to sue the United States for money damages if Federal officers or employees disclose sensitive information without lawful authorization. Section 223 also requires Federal departments and agencies to initiate a proceeding to determine whether disciplinary action is warranted against an officer or employee whenever a court or agency finds that the circumstances surrounding a violation of Title III raise serious questions about whether that officer or employee willfully or intentionally violated Title III. To date, there have been no administrative disciplinary proceedings or civil actions initiated under section 223 of the USA PATRIOT Act. I believe that this reflects the fact that employees of the Justice Department consistently strive to comply with their legal obligations. Nevertheless, section 223 provides an important mechanism for holding the Department of Justice accountable, and I strongly urge Congress not to allow it to sunset at the end of 2005.
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Additionally, section 1001 of the USA PATRIOT Act requires the Justice Department's Inspector General to designate one official responsible for the review of complaints alleging abuses of civil rights and civil liberties by Justice Department employees. This individual is then responsible for conducting a public awareness campaign through the Internet, radio, television, and newspaper advertisements to ensure that individuals know how to file complaints with the Office of the Inspector General. Section 1001 also directs the Office of Inspector General to submit to this Committee and the House Judiciary Committee on a semi-annual basis a report detailing any abuses of civil rights and civil liberties by Department employees or officials. To date, six such reports have been submitted by the Office of the Inspector General pursuant to section 1001; they were transmitted in July 2002, January 2003, July 2003, January 2004, September 2004, and March 2005. I am pleased to be able to state that the Office of the Inspector General has not documented in these reports any abuse of civil rights or civil liberties by the Department related to the use of any substantive provision of the USA PATRIOT Act.
In addition to containing special provisions designed to ensure that the civil rights and civil liberties of the American people are respected, the USA PATRIOT Act also respects the vital role of the judiciary by providing for ample judicial oversight to guarantee that the constitutional rights of all Americans are safeguarded and that the important role of checks and balances within our Federal Government is preserved. As reviewed above, under section 214 of the Act, investigators cannot utilize a pen register or trap-and-trace device unless they apply for and receive permission from the FISA Court. Section 215 of the Act requires investigators to obtain a court order to request the production of business records in national security investigations. Section 206 requires the Foreign Intelligence Surveillance Court to approve the use of ''roving'' surveillance in national security investigations. Sections 201 and 202 require a Federal court to approve the use of a criminal investigative wiretap, and sections 209 and 220 require a Federal court to issue search warrants to obtain evidence in a criminal investigation.
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Besides safeguarding the vital role of the judiciary, the USA PATRIOT Act also recognizes the crucial importance of congressional oversight. On a semiannual basis, for example, as noted before, I am required to report to this Committee and the House Judiciary Committee the number of applications made for orders requiring the production of business records under section 215 as well as the number of such orders granted, modified or denied. I am also required to fully inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate on a semiannual basis concerning all requests for the production of business records under section 215. These reports were transmitted by the Department to the appropriate committees in April 2002, January 2003, September 2003, December 2003, September 2004, and December 2004. Moreover, I am required by statute to submit a comprehensive report on a semiannual basis to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate regarding the Department's use of FISA. These reports contain valuable information concerning the Department's use of USA PATRIOT Act provisions, including sections 207, 214, and 218.
I would note that the Department has gone to great lengths to respond to congressional concerns about the implementation of the USA PATRIOT Act. The Department has, for example, provided answers to more than 520 oversight questions from Members of Congress regarding the USA PATRIOT Act. In the 108th Congress alone, in fact, the Department sent 100 letters to Congress that specifically addressed the USA PATRIOT Act. The Department also has provided witnesses at over 50 terrorism-related hearings, and its employees have conducted numerous formal and informal briefings with Members and staff on USA PATRIOT Act provisions. In short, the Department has been responsive and will continue to be responsive as Congress considers whether key sections of the USA PATRIOT Act will be made permanent.
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In closing, the issues that we are discussing today are absolutely critical to our Nation's future success in the war against terrorism. The USA PATRIOT Act has a proven record of success when it comes to protecting the safety and security of the American people, and we cannot afford to allow many of the Act's most important provisions to expire at the end of the year. For while we certainly wish that the terrorist threat would disappear on December 31, 2005, we all know that this will not be the case. I look forward to working with the Members of this Committee closely in the weeks and months ahead, listening to your concerns, and joining together again on a bipartisan basis to ensure that those in the field have the tools that they need to effectively prosecute the war against terrorism. Finally, Mr. Chairman, we have taken the liberty of supplying the Committee with a copy of FBI Director Mueller's testimony concerning the USA PATRIOT Act, which he presented yesterday before the Senate's Committee on the Judiciary. We ask that it be made a part of this Committee's hearing record, as well.
I look forward to answering your questions today.
Chairman SENSENBRENNER. Before getting to questions, let me just explain the process that I intend to use during this hearing. The Chair has been making notes of the approximate order in which Members have arrived on both sides of the aisle, and after Mr. Conyers and I are done asking General Gonzales questions, the Chair will alternate from side to side in the order in which Members appeared and will let everybody know what the list is with the order.
Page 49 PREV PAGE TOP OF DOC Because we have a limited amount of time today and because those Members who are going to go to the Pope's funeral have to get out to Andrews Air Force Base, the Chair announces right now off the bat that he is going to strictly enforce the 5-minute rule on everybody, including himself. We will have a break for votes somewhere around 3. If all of the Members who wish to ask questions have not asked their questions by then, we will come back and the remaining Members will be able to ask their questions.
So the Chair now recognizes himself for 5 minutes.
Attorney General Gonzales, as you know, I was instrumental in putting the sunset into the PATRIOT Act because I felt that the Congress should have a chance to have the opportunity to review the effectiveness of the Act's provisions as well as use that as a tool to do oversight over the Department of Justice. Do you believe that the sunset should be completely repealed, or do you think that there should be another sunset put in, and if so, how far in the future do you think we should force another review?
Attorney General GONZALES. Mr. Chairman, it was my understanding that the sunset provisions were included in the Act because of concerns about whether or not the Congress had achieved the right balance between protecting our country and securing our civil liberties. We've now had a period of time to evaluate how these provisions work, how the Department has used these provisions. I think it's a strong record of success. I think the Act has been effective. I think the Department has acted responsibly. I think there is sufficient information for the Congress to make a determination that, in fact, these provisions should be made permanent.
Page 50 PREV PAGE TOP OF DOC As a matter of reality, we all understand that the Congress at any time, the next year or the year after, could at any time evaluate whether or not certain provisions should be discontinued, and so even if the decision were made to remove the sunsets, that would not, in my judgment, in any way affect the ability or the right or the authority of Congress to examine and reexamine the way that these authorities are working and the way that the Department is using these authorities.
Chairman SENSENBRENNER. One of the things that I believe all Members of the Committee and particularly I have heard is concerns about section 215. Let me say thator make two points. First of all, I am gratified at your testimony that the Justice Department has never sought bookstore, medical, or gun sale records under section 215.
Secondly, I would observe that if section 215 is repealed, as some have advocated, all of these records would still be available to law enforcement through the procedure of a grand jury subpoena, and with a grand jury subpoena, it is up to the recipient to hire a lawyer and move to quash the subpoena in Federal court, whereas under section 215, there is judicial review by the FISA court before the FISA warrant is issued under section 215.
I salute your willingness to have some amendments to section 215 to clarify the process under which the Justice Department utilizes this section. Can you talk in a little bit greater detail on how you suggest section 215 be amended to do so?
Attorney General GONZALES. As I have indicated, Mr. Chairman, the Department has taken the position in litigation that we interpret 215 as including an implicit right for a recipient of a 215 order to challenge that order. We also read in the statute the right of a recipient to disclose the existence of a receipt of an order to an attorney in order to help them prepare such a challenge.
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I, quite frankly, understand the concerns at the fact that the statute doesn't have those rights explicitly spelled out in the statute, and for that reason, the Department is quite comfortable supporting an amendment to make it clear that, in fact, those authorities should be included as part of a statute.
Another important point that we would support is the specific acknowledgement of what the appropriate standard is. There is some question as to whether or not a relevance standard is applicable in the statute. We believe it does. We believe that is the applicable statutestandard, even though thatand we think judges have interpreted 215 to impose a relevance standard. But in order to remove any doubt or ambiguity, we would support the explicit acknowledgment that that is the standard that must be met whenever we go to the Federal judge, that that is the standard that we have to meet in order to receive a 215 order.
Chairman SENSENBRENNER. Thank you. My time has expired.
The gentleman from Michigan, Mr. Conyers?
Mr. CONYERS. Thank you, Mr. Chairman. Thank you.
I have within the time allotted to me three questions. One is about the Brandon Mayfield incident in which the PATRIOT Act was used.
The second is about terrorists' access to guns in which we have a GAO study that shows, Mr. Attorney General, that out of 56 firearm purchase attempts by individuals designated as suspected terrorists, 47 of them were permitted to involve themselves inwere able to purchase weapons.
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And my third question is about racial and religious profiling in which since September 11 the Department of Justice has interviewed over 3,000 Middle Eastern immigrants, counted mosques and surveyed their attendees, registered over 83,000 Arab and Muslim visitors, interviewed 10,000 Iraqi nationals, and I wanted to find out what all this profiling was for, racial and religious profiling, which is contrary to FBI guidelines, and what do we have to show for it?
Let's start with Brandon Mayfield, who really got hit up pretty hard and I think, to make this a short conversation, you've already conceded that the PATRIOT Act was involved, right?
Attorney General GONZALES. What I have said, Congressman, is that section 213 was not implicatedwas not used. There were stories, I believe, in the press that section 213 of the PATRIOT Act was the basis for the search. That is not true.
What I have said is that the PATRIOT Act is implicated to the extent that this was a FISA search and that FISA, the provisions of FISA were amended by the PATRIOT Act. For example, section 218, which deals with changing the standard from the purpose to a significant purpose in targeting an intelligence investigation, and also sections
Mr. CONYERS. Excuse me, sir. Sections 207 and 218 were involved, right? Sections
Attorney General GONZALES. Sections 207 and 218, that's what I was just saying.
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Mr. CONYERS. Yes.
Attorney General GONZALES. Yes.
Mr. CONYERS. So the answer is yes.
Attorney General GONZALES. To the extent that we're talking about utilizing FISA and to the extent that the PATRIOT Act amended provisions of FISA, yes. Provisions of the PATRIOT Act were used in connection with that investigation, but I might add that based on what I know today, and I'm limited in what I can say because this matter is in litigation, I don't believe that the Brandon Mayfield case is an example where there was a misuse or abuse of a provision of the PATRIOT Act.
Mr. CONYERS. Well, let me just ask you, can we on this Committee cooperate with you to open up those Mayfield files so we can learn exactly how the PATRIOT Act was used in this case? The Seattle Times and others widely report PATRIOT Act use in Portland, attorney investigation, Attorney General says, and goes on and on and on, and I think you've said the same thing here.
Attorney General GONZALES. Again, Congressman, this matter is in litigation so I'm likely to be limited about what information I can share with you, but I'm happy to go back and see what we can do to provide information to the Committee in connection with this case.
Page 54 PREV PAGE TOP OF DOC Mr. CONYERS. Let's go on to the
Attorney General GONZALES. The GAO report. Congressman, it is up to Congress to determine who is able to possess a firearm in this country. Congress designates certain categories of people, based upon various actions, that make them disabled from owning a firearm. If someone does not have such a disability which has been recognized by Congress, even though they're a terrorist, there are limits to what this Department can do to prevent them
Mr. CONYERS. Would you be willing to support legislation limiting a terrorist's access to such weapons?
Attorney General GONZALES. I think that we'd be willing to consider looking at such legislation, Congressman
Mr. CONYERS. Well, 47 suspected terrorists were able to get weapons. What
Attorney General GONZALES. Let me try to explain that we try to be very, very careful about who appears on the Terrorist Watch List.
Mr. CONYERS. Sure.
Attorney General GONZALES. There are various reasons that people appear on the Terrorist Watch List, and so the fact that someone appears on the Terrorist Watch List
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Mr. CONYERS. That doesn't make them a good guy.
Chairman SENSENBRENNER. The gentleman's time has expired.
The gentleman from California, Mr. Lungren?
Mr. LUNGREN. Thank you very much, Mr. Chairman, and welcome again to the Committee, Mr. Attorney General.
Mr. Attorney General, when I've had town hall meetings in my district, even though I'm a former Attorney General of California, and try to explain it in legal terms, I've had people raise section 213. They don't know it as delayed notification. They know it by another name. And a concern is always raised about this would necessarily lead to abuses and somehow seems unfair.
This is an investigative authority that has been used in cases other than terrorism. Could you just explain why that is an important technique, an important authority, and how, if extending it to terrorism cases, it changes the nature of it or the seriousness of the authority given, or if it does not? That is, what would you say to my constituents who ask me this question at town hall meetings, despite my best efforts to answer them?
Attorney General GONZALES. I would respond by maybe giving them this hypothetical. I'm going to change some facts here about a hypothetical and how this tool can be very useful in dealing with terrorism, and that is, let's say, we uncover ammonium nitrate, a large stockpile of ammonium nitrate. It is a very important ingredient in creating a very dangerous bomb. So we discover this. We don't know who all is involved in this plot, this possible conspiracy. So we want to make sure we get everyone involved in it. On the other hand, we want to grab it because we're concerned that we may lose track of it and it may be used to build a bomb and kill lots of people.
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And so we get a delayed notification warrant that allows us to come in. We substitute the ammonium nitrate with an inert substitute and we're able to continue the investigation to the appropriate time without jeopardizing a possible creation of a bomb, an explosion killing hundreds of people. So that would be an example of where the ability to go in and do a search without notifying the target can be extremely beneficial until the time comes when we have sufficient information to make our case, and that would be an example that I would provide to your constituents.
Mr. LUNGREN. And is that any different than what we do in other kinds of criminal cases with the delayed notification authority?
Attorney General GONZALES. Delayed notification warrants have been in place for many, many years in ordinary criminal investigations for a wide variety of crimes. People need to understand that it is under the jurisdiction and supervision of a Federal judge. We still have to show the probablewe still have to meet the probable cause standards, and so
Mr. LUNGREN. And that is all done prior to the time that the entry is made or the
Attorney General GONZALES. Absolutely. We go to a judge like in every other case and we make our case, present the facts, and the judge makes the determination whether or not we meet the standards under the Constitution.
Page 57 PREV PAGE TOP OF DOC Mr. LUNGREN. Mr. Attorney General, you have said here and you've said before, and I'll quote an article in the New York Times that quotes you as warning Congress that we cannot afford to assume the quiet of the day will mean peace for tomorrow and the terrorist threat will not expire, even if parts of the PATRIOT Act are allowed to. If we fail to renew these provisions of the PATRIOT Act, could you tell us how this would harm law enforcement, because we made sort of a broad statement that it would, but specifically, how would it?
Attorney General GONZALES. One major way would be in the sharing of information. If you look at the reports of the 9/11 Commission and the WMD Commission, both have acknowledged that a serious weaponthe most effective weapon in dealing with terrorism is in the sharing of information. And prior to the PATRIOT Act, there were questions within the law enforcement community about how much information could be shared by those in the Intelligence Community with law enforcement, and those questions were laid to rest by certain provisions in the PATRIOT Act.
If those provisions were sunsetted, we would once again be in a situation where law enforcement would be very, very cautious in sharing of information. They would want to check with their superiors, and so it would cause delays in investigations and I think would needlessly tie the hands of American investigators in dealing with this threat.
Mr. LUNGREN. Thank you, Mr. Attorney General. I might just say for the record, while I understand what you say about perhaps we don't have the need to put in the sunset in the future, as a spur to Congress to make sure we do appropriate oversight, I'm inclined to support a sunset provision in the future, because, frankly, this is serious and the people need to be assured that we are, in fact, doing the oversight that is necessary.
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Chairman SENSENBRENNER. The time of the gentleman has expired.
The gentleman from California, Mr. Schiff?
Mr. SCHIFF. Mr. Attorney General, I want to thank you for being here. I'm a former Assistant U.S. Attorney and I greatly value the work done by Justice Department people all over the country.
I'm an original cosponsor of the House version of the PATRIOT bill. In my view, the PATRIOT bill was a bargain. We would give the Government greater ability to investigate and prosecute terrorism suspects, and in return, we would take upon ourselves greater responsibility for overseeing these more powerful tools.
In my view, we have not kept up our part of the bargain. We have not done adequate oversight of the PATRIOT bill in this House or in this Committee. For the Justice Department's part, I believe the Department has not been forthcoming with the information that we would need also to do our job of oversight.
And in one area in particular, I have been most concerned. This is an area both within, but largely without, the PATRIOT bill and that is the detention of Americans and lawful residents as enemy combatants. For 3 years now, I have been raising this issue, what the standards ought to be for the detention of an American, what due process should be afforded. I introduced legislation 3 years ago to authorize the detention of enemy combatants, but to ensure that there was access to judicial review and access to counsel.
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We've had no hearing on any of this legislation. Indeed, requests to have a hearing just on the issue of the detention of Americans have not been successful. We have had no hearing on this subject. That's been our problem, our unwillingness to set any limit on the power of the executive to detain an American citizen. That's been our problem.
At the same time, efforts that I've made to learn information from the Justice Department and the Defense Department about our Government's own policies of when we treat someone as an enemy combatant or when we treat them as a criminal defendantwhen we treat them as a defendant with all of the rights that attach to that, when we treat them as an enemy combatant with none of the due process that attaches to that, I have been unable to get really any meaningful information, even in classified form.
When you gave a speech to the ABA a year or two ago, it was the most information I had ever heard about how we were deciding when to treat someone as an enemy combatant. More information than you gave publicly was denied me in classified form. That cannot persist.
I find it odd that there aren't more voices in the Congress raising this issue, that aren't demanding that Congress act to set limits on the detention of Americans, to set due process for the detainees at Guantanamo. Of course, all this thing, not done for the terrorism suspects but done for all the rest of us, to protect our civil liberties and our due process. I find it very odd there have been so few voices in the Congress on this issue, but I find I have a new and powerful ally on the Supreme Court of the United States.
Page 60 PREV PAGE TOP OF DOC As you know, the District Courts have been conflicting about whether the executive has the power to detain enemy combatants and under what conditions. Justice Scalia, in one of his dissenting opinions, commented, ''I frankly do not know whether the tools are sufficient to meet the Government's security needs, including the need to obtain intelligence through interrogation. It is far beyond my competence or the Court's competence to determine that, but it is not beyond Congress's.'' We could not have, I think, a stronger admonition that we need to act in the Congress, and so I'm in the unusual position of asking you to help us to do our job.
Mr. Attorney General, do you believe, as I do, that the Justice Department's power to detain enemy combatants, which I believe the Department has to have in the war on terrorism, don't you believe that power is strengthened when the Congress acts to provide both the authority clearly and the due process clearly? Isn't the power strengthened because it will now have the imprimatur of both the legislative and executive branch and, therefore, have the respect of the judicial branch? Shouldn't we act so that we don't have piecemeal decision making by the courts? Will you work with the Congress to propose legislation setting out the due process for the detention of Americans as enemy combatants and the detainees in Guantanamo?
Attorney General GONZALES. Congressman, there is a lot there to respond to. Generally, in the area of war, the framers of the Constitution gave both to the executive branch and to the legislative branch certain powers, and I think in the exercise of the power, I, for one, as someone who looks at these things, look at where you are on the continuing spectrum.
I mean, for example, if theif America is attacked, I think this President, as Commander in Chief, can take action to defend this country without action by Congress. I think he has the authority to do that. But if we're talking about taking 100,000 troops into another country for an extended period of time, then it becomes, I think, more difficult whether or notcan the Commander in Chief do that without any kind of Congressional authorization.
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I think the Framers probably had it right. It probably works best, particularly when we talk about putting the lives of men and women at risk, to have both branches working together in most cases. Whether or not legislation is appropriate, these are very, very difficult issues. I have really discovered how difficult these issues have been these past 4 years.
There is a reason why courts around this country reach conflicting decisions about these issues, because they are so hard. Many of the issues have never been confronted in our courts before. It's a new kind of war, and some of the old rules just don't apply. And so we try to deal with them.
And so to answer directly your question about whether or not legislation would be beneficial, I'd have to look at the circumstances. I'd have to look at the legislation, quite frankly.
You're right. We waited too long, in my judgment, to respond, to explain to the American people what we're doing and why, and it was one of the things that I mentioned in that speech you referred to, is that we waited. We waited a long time because of concerns that we didn't want to say anything that might help the enemy, might jeopardize something that we're doing. But we finally acknowledged that we were hurting ourselves, that the American people and the Congress really needed to know what we were doing and why, and that wasI'm delighted to know about your speech, because I did, I think, talk a lot about the process that we used in designating someone as an enemy combatant or having them go through the criminal justice system.
Page 62 PREV PAGE TOP OF DOC Chairman SENSENBRENNER. The time of the gentleman has expired.
The time of the gentleman from Texas, Mr. Smith.
Mr. SMITH OF TEXAS. Thank you, Mr. Chairman.
General Gonzales, thank you for being here today. General Gonzales, recently, you made the statement that you felt that the PATRIOT Act is working and, in fact, it has helped to prevent additional terrorist attacks. Could you be more specific? Could you point to the number of individuals, the number of would-be terrorists who might have been detected and apprehended? Can you point to terrorist rings that might have been disrupted or broken up to substantiate that statement?
Attorney General GONZALES. It's kind of hard to sort of prove a negative or show a negative. I can certainlyI've got a list here of where the PATRIOT Act has been beneficial or helpful. I can certainly provide to the Congress and to you examples of cases where the PATRIOT Act has been very helpful.
Mr. SMITH OF TEXAS. Let me just
Attorney General GONZALES. I would just repeat what I said earlier in a response to another question about, I mean, just the sharing of information. There's a reason that there's not been another attack in this country, quite frankly, and not just the PATRIOT Act. I know this Congress worked very hard in standing up a new Department, Homeland Security, so a lot of actions taken by the Government in order to defend this country.
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But I think the PATRIOT Act has been very, very helpful. We have in various cities around the country, in Portland, Oregon, in Buffalo and Detroit, I mean, in New York City, rounded up people who were engaged in plotting another terrorist attack. Often times, we obtain convictions. Some critics of the Administration have said, well, you've only got low-level convictions. That's because we try to preempt something really bad from happening, and so sometimes we cannotwe have to move in early enough to prevent another attack and we don't have a sufficient basis to prosecute someone for something really serious.
Mr. SMITH OF TEXAS. General Gonzales, how many convictions have you obtained?
Attorney General GONZALES. I don't know, but I can get that information for you.
Mr. SMITH OF TEXAS. Okay. I would be curious about that.
Let me go to another aspect or another kind of terrorist threat. You are aware, I am sure, that last year, the number of individuals coming across our Southern border from terrorist-sponsoring nations increased dramatically, and I'm just wondering what we're doing to target the individuals who might be coming into our country to commit terrorist acts.
And as a sort of a second part of that question, I point out, which you also know to be the case, the Border Patrol tells us that for every three individuals seeking to come into the country illegally, two succeed. Two out of every three people who want to come into the country illegally are able to do so. We wouldn't be surprised, given that, that there might not be another terrorist attack. But what is your response as to how we can prevent that from occurring and how we target the individuals who might be coming across the border who would bemight be would-be terrorists from terrorist-sponsoring countries?
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Attorney General GONZALES. Congressman, I know the immigration issue is one that you have spent a lot of time on and you have a lot of expertise and knowledge about. It is a very, very difficult issue. As I've said many times in talking about this issue, because we have a country that traditionally has invited immigrants, we embrace them, we want them to come in our country, it is the fabric of our great country, is the contributions of immigrants.
We have generally an open border in the South. People along the border communities cross the border every day, back and forth, so that they can go to work, provide for their families, and that's the reality of life.
On the other hand, a new reality after September 11 is the fact that we need to do what we can do to make it so that terrorists cannot come into this country. Of course, the Department of Homeland Security has now the primary responsibility for dealing with that. I know Mike Chertoff, he and I have spoken about this issue. We've invested money, the Congress working with the Administration and making sure additional monies are available for additional agents. Our technology is getting better. But we still have a long way to go. I mean, this is a very difficult issue. It's one that's existed for many, many years. If it were one that could easily be solved, it would have been solved a long time ago. But I justwe'll continue to work with the Congress to try to address it.
We understand it's a problem. I was in Mexico last week. We talked about this issue with President Fox and the Attorney General in Mexico, and so they understand that we consider it a seriouswe're seriously concerned about it, and I was reassured by the Attorney General that they consider it an issue for them. They realize how harmful it would be for their economy, their tourism, if, in fact, we have a situation where terrorists come up from Latin America, other countries, through Mexico into our country and cause another attack. They realize how damaging that would be, and so they're very concerned about it, as well.
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Mr. SMITH OF TEXAS. Thank you, General Gonzales. Regarding my first question, the number of convictions, I understand it's in the 80's to 90's range, and I'll look forward to that information.
Attorney General GONZALES. Thank you.
Mr. SMITH OF TEXAS. Thank you, Mr. Chairman.
Chairman SENSENBRENNER. The time of the gentleman has expired.
The gentleman from California, Mr. Berman?
Mr. BERMAN. Thank you very much, Mr. Chairman, and thank you, Mr. Attorney General, for being here and for at least conveying the impression that you sometimes hear and even understand the questions we ask. That's already an improvement over your predecessor.
The PATRIOT Act sunset provisions you've discussed, I frankly think most Members of Congress have come or will come to the conclusion that many of these sunsetted provisions should beperhaps all of them should be continued, perhaps refined. Mr. Chairman, I would hope this review, though, would also take into account a number of unilateral actionsMr. Schiff certainly brought up one in the context of the enemy combatants issuethat we should be considering that weren't part of the PATRIOT Act but were developed in response to September 11 and in our effort to fight a more effective war on terror.
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Some of these include policies instituted without any input from Congress, mining data from public and non-public databases, blanket closure of deportation hearings to the public, blanket closure, denial of bond to whole classes of non-citizens, altering the makeup of the Board of Immigration Appeals in a way that has overwhelmed the Federal circuit courts, and permitting the DOG's immigration attorney's to unilaterally overrule an immigration judge when he has ordered someone released on bond.
Today, Mr. Delahunt and I are introducing a law we call the Civil Liberties Restoration Act. It doesn't repeal any part of the PATRIOT Act. It doesn't impede in any way the ability of agencies to share information. Our goal is simply to ensure there are appropriate checks and balances on a number of PATRIOT provisions as well as an opportunity for Congress to address some of the unilateral policy decisions that I just mentioned. They're all drafted, we think, in a way that tries to achieve the balance that you and others have talked about. I would hope at some point you might have a chance to take a look at some of the proposals contained in that legislation.
But I think the 9/11 Commission was instructive on this issue, and my question to you isI'm going to mentionthey established some standards for the process that we are now about to embark on and I'd like your reaction to it. The 9/11 Commission essentially said we should reexamine the specific provisions that sunset, taking care not to renew any provision unless the Government can show, one, that the power actually materially enhances security, and two, that there is adequate supervision of the executive's use of the power to ensure protection of civil liberties.
Page 67 PREV PAGE TOP OF DOC Secondly, if the power is granted, there must be adequate guidelines and oversight to properly confine its use.
And thirdly, on the issue I've just touched on, because the issues of national security and civil liberties posed by anti-terrorism powers that are not part of the PATRIOT Act sunset are at least as serious as any posed by those provisions that do sunset, Congress should undertake the broader review of anti-terrorism powers both within and outside of the PATRIOT Act, using the same standard of review that I just mentioned for the sunset provisions.
Anything wrong with that as a methodological approach for us to begin this effort?
Attorney General GONZALES. I think this country was founded by people concerned about the exercise of power in our home country and I think it is appropriate to alwaysto question and to examine the exercise of power by the Government, and so I welcomethat's why I welcome this debate.
I think that the record shows that the PATRIOT Act has been effective. I think the record shows that the exercise of the authorities granted to the Department of Justice have been used wisely and judiciously. But I think that
Mr. BERMAN. Let me just throw out one thing here. For instance, in our bill that we're introducing today, the blanket closure of all immigration hearings, why isn't it case by case? Where there's a legitimate national security reason to close that hearing, by all means, you ought to have the authority to have that hearing closed. But why does there need to be a blanket closure?
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Attorney General GONZALES. Congressman, I wasn't involved
Mr. BERMAN. Can you defend that decision?
Attorney General GONZALES.I wasn't involved in that decision, and so I probably do not knowin fact, I know I don't know all the facts that were weighed or considered in connection with that
Mr. BERMAN. From what you know now, what do you think of that?
Attorney General GONZALES. Well, I think that there were mistakes made, quite frankly, and I think if you look at the IG report about the detentions of immigrants, there were some mistakes made. We've worked very, very hardthe Department has worked hard to try and address and respond to the recommendations made by the IG. But in terms of the blanket, that would be something I would have to look at.
Chairman SENSENBRENNER. The time of the gentleman has expired.
The gentleman from Iowa, Mr. King?
Mr. KING. Thank you, Mr. Chairman.
Mr. Attorney General, I thank you for being here to testify today, I believe the first time in the position that you're in. I welcome you to the Judiciary Committee.
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A series of questions have arisen as I listened to your testimony and the questions here today and one of them is with regard to the question asked by the Ranking Member. Fifty-six attempts to purchase guns and 47 of them were successful in purchasing guns, and as I listened to the follow-up question, I heard the phrase, ''suspected terrorists.'' Was there any anticipation that suspected terrorists would be screened from getting guns, and could you also speak as to under what circumstances the other nine might have been prohibited?
Attorney General GONZALES. I don't have the information about the other nine. Weunless Congress says that if you have this disability or something or you have this characteristic or you've done this kind of action, you're going to be entitled to own a firearm in this country. As I've said before, we do not want to see a situation where terrorists have the right to possess a weapon in this country. But at the end of the day, all we can do is enforce the law.
Under our current structure, you are disabled if you've been involved in some kind of domestic abuse. You're disabled if you're an illegal immigrant. You're disabled if you're a felon. But in that list of disabilities is not the words ''terrorist.'' That doesn't mean that we just give up. Obviously, when someone wants to purchase a weapon and there's a hit on the Terrorist Watch List, we tried to alert the local officials and see if we can get additional information to find out if there is a way that this person can either be arrested or deported or can we discover some kind of disability to prevent them from getting a weapon. But if we can't do that, they're entitled under the law to get a weapon.
Mr. KING. We don't have a category for suspected terrorists and I think that's the summary of that answer and I thank you.
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Then on another subject matter, the PATRIOT Act requires the Inspector General of the Department of Justice to provide a twice-yearly report as to the civil liberties, whether they have been violated by use of the PATRIOT Act, and it's my understanding that those six reports have not found a single violation of civil liberties.
Would you care to expand on that? I guess the question comes to me is why do I continually hear the stories about civil liberties being violatedand I'd expand my question a little more in that I'm inclined to support eliminating the sunset on the PATRIOT Act for the very reason of the demagoguery that I hear about the abuse of the PATRIOT Act and not finding evidence of it.
Attorney General GONZALES. You are correct, sir, that the IG is required to submit a report semi-annually about abuses under the PATRIOT Act, and to date, he has not been able to report any abuses under the PATRIOT Act. I visited with our IG several weeks ago and asked him again, are you aware of any such abuses, and he said no.
And as I travel around the country and I've encouraged other officials within the Department of Justice to go out and try to solicit examples of where real abuses or misuses of the PATRIOT Act have occurred, there's a lot of misinformation, a lot of disinformation out there. Some people believe that because certain provisions may have been struck down, that means that the PATRIOT Act was somehow found unconstitutional, and we discovered that, no, it related to a provision that was passed by the Congress years before the PATRIOT Act.
And so I think that, again, I think the record of the Department is a very good one regarding the use of the PATRIOT Act. I think that the record also reflects that Congress probably did a pretty good job in achieving a good balance between protection of civil liberties and protection of this country.
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Mr. KING. Thank you. And then with regard to section 215, do you believe there's a reason to expand that to cover domestic terrorism, as well?
Attorney General GONZALES. I would have to look at that, Congressman. I don't have an answer for that, whether or not 215 should be expanded to include domestic terrorism.
Mr. KING. And then off of Mr. Smith's statement with regard to theI mean, really, the amount of immigrants coming into this country on the illegal side, it looks like that number is over three million, if using that extrapolation of Mr. Smith's remarks. And out of that huge haystack, how would you think it would be logical that we could sort the terrorist needles out of 3.4 million illegals?
Attorney General GONZALES. I think it would be difficult. Obviously, from our perspective, I think it is good if we know who is coming into this country and why they're coming into this country. The key question is, how do we do that, and that's something that we're working on and I know Members of Congress have been thinking about and are continuing to work on it, because it is a very important issue.
Mr. KING. And I would suggest reducing the size of the haystack. Thank you, General Gonzales. Thank you, Mr. Chairman.
Chairman SENSENBRENNER. The gentleman's time has expired.
Page 72 PREV PAGE TOP OF DOC The gentleman from New York, Mr. Nadler?
Mr. NADLER. Thank you. Mr. Attorney General, my basic problem with all of this is that the Administration, the current Administration that's enforcing the PATRIOT Act seems to have no sense of limits and no sense of due process whatsoever when dealing with real or alleged terrorism cases. I will cite, for instance, the memo that you wrote justifying torture, which I am sure you won't characterize as such, but I will.
Number two, the whole doctrine of the enemy combatants that Mr. Schiff talked about in which the President has claimed the power to point his finger at any American citizenor non-citizenbut any American citizen and say, you are an enemy combatant because I say so on the basis of secret information which I won't reveal to you or anyone else, and by that declaration, I have the power to throw you in jail forever with no due process, no hearing, no evidence, no nothing. Nobody, to my knowledge, no executive in an English-speaking country has made such a claim of tyrannical power since before Magna Carta, and yetand the Justice Department under your predecessor had the nerve to say to the Federal courts that they didn't have the jurisdiction to even question the fact or the authority of the President.
Third, you stated in your opening statement that the PATRIOT Act was well considered and well balanced. Well, maybe it's balanced and maybe not, but it certainly wasn't well considered. If you recall how it passed here, this Committee considered in detail a PATRIOT Act, considered for 4 days, voted on amendments, marked it up, unanimously reported the bill on a Thursday, I believe. Over the weekend, the leadership of the House together with the Administration took the well-considered bill, which I thought was balanced, and threw it in the garbage, wrote over the weekend an entirely new bill, presented this 200-and-some-odd-page bill to the House with two copies available, one for the Democrats, one for the Republicans, warm to the touch at 10 in the morning. We started the debate at 11 and voted on it at 1 and nobody had a chance to read it. So it's certainly not well considered. It may be well balanced, but certainly not well considered.
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In light of all this, I have two specific questions about the bill. There are provisions in the PATRIOT Act that are fine and that have positively reformed the way intelligence is gathered and used to protect the United States and provisions that I think are over the top.
Last September, a judge in the Southern District of New York, Judge Morero, ruled that section 505 dealing with national security letters violated two constitutional principles, the first amendment right to freedom of speech and the right to be free from unreasonable searches and seizures under the fourth amendment. Section 505 authorizes the FBI, using only a piece of letterhead paper signed by a field agent in charge of a local FBI office, to demand private information without court review or approval, without the person being suspected of any crime, without ever having to tell him or her that it happened.
Moreover, the business from which the FBI gets these private records is gagged and prohibited from notifying the targeted individual, so they may never move in court to quash this request or to even question it.
Do you believe that section 505 should be either stricken or amended, question number one?
Question number two is that section 206 creates roving wiretaps in intelligence cases which allows the Government to get a single order that follows a target from phone to phone, which I think makes sense. But in addition, last year's Intelligence Authorization Act allows the Government to issue John Doe wiretaps where the phone and facility is known but the target is not. The combination of these two laws seems to allow for a general wiretap, one that follows an unknown suspect from unknown phone to unknown phone.
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Should this section be changed to clarify that the Government would specify either the person or the phone to be tapped, or are we now into the business of general wiretaps like the British Writs of Assistance that helped spark the American Revolution?
Attorney General GONZALES. Thank you, Congressman. As to 505, I don't think that 505, I think, should be amended or deleted. The court, as I understand it, found a problem with the fact that a person did not have the right to contest the national security letter or to tell anyone about the national security letter, even though the Department took the position, yes, you do, and we argued that in that litigation.
Mr. NADLER. That was one of the problems it found.
Attorney General GONZALES. I don't think that the court had a problem per se with 505, and some people have characterized this as a decision by the court that somehow struck down a provision of the PATRIOT Act when an ACLU attorney himself even acknowledged that, no, that wasn't the case. The problem was the first amendment and the fourth amendment and it did not relate to the PATRIOT Act, in my judgment.
In terms of roving wiretaps, in my reading of 206, I believe that the Department has an obligation to identify a specific target. We may not know the name of that person, but we have to go before a Federal judge and give the judge enough information that the judge is comfortable that we've satisfied the probable cause standard as to a specific target being a foreign power or an agent of a foreign power. That's the first thing.
Page 75 PREV PAGE TOP OF DOC And so it's not the case that if we get a wiretap on person A and we discovera roving wiretap on person A and we discover, whoops, this is not the right guy, let's listen to the phone of this person, if we go to person B, we have to get another order from a Federal judge. So it's not the casewe get an order for one specific person.
Now, when we go to the judge, we also go to the judge having to satisfy a probable cause standard as to a particular location or facility or phone that the terrorists or target is either about to use or is using. So it wouldn't be the case where we'd be able to simply get an order from a judge to tap the phones of everybody in an apartment building. The way it works is we get a roving wiretap on, say, terrorist A and terrorist A is on a cell phone. If he goes to a different cell phone, that roving wiretap would go with that terrorist to that second cell phone.
Chairman SENSENBRENNER. The gentleman's time has expired.
Without objection, immediately following Mr. Conyers' opening statement, a letter from Sarah W. Clash Drexler, Trial Attorney of the Department of Justice Civil Division, to Elden Rosenthal, an attorney in Portland, Oregon, relating to the Brandon Mayfield case will be inserted.
The gentleman from Florida, Mr. Feeney?
Mr. FEENEY. Thank you, Mr. Chairman, and thank you, General Gonzales. Like yourself and a lot of proponents of the PATRIOT Act as well as a lot of the critics and people that have voiced concerns, I'm interested in finding the appropriate balance between civil liberties and between protecting ourself against this enormous threat from terrorism, which is very real indeed.
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I note that, amongst other things, that the Constitution is often not absolute when it comes to civil liberties. For example, the prohibition against certain searches and seizures is based on reasonableness, according to the Founders. What that means to me is that whether a search or a seizure is reasonable or unreasonable may depend on the threat at any given time, so that it may not be an absolute bar. I think the Founders invited us to change that bar based on the threat to the United States and, of course, habeas corpus can be suspended amongst other times, so certainly under article I, during periods of emergency, the Congress has the right to suspend habeas.
The other thing that I note here is there are not a lot of legal precedents. So you've been referring to arguments by the ACLU. We've got different lower court decisions recently. But the last time we were attacked by a hostile foreign power successfully on the continental U.S. was 1812. There hasn't been a lot of litigation since 1812 on what the Government can or can't do in this regard.
We did have a Civil War within our shores from 1860 to 1865. Chief Justice Rehnquist has written a very important book about 15 years before the terrorist attack called All the Laws But One after Lincoln's quote when he suspended habeas corpus and was criticized for doing so and he said, ''Am I to suffer basically the loss of the Union and all of our laws as we defend one law, that being habeas?''
And I guess in that historical light, since we don't have a lot of recent precedents on how to do this balance, I'd like to ask you with respect to American citizens who are suspected under the PATRIOT Act or other provisions of law of engaging in war on terror whether you can compare them to, say, a rebellious Confederate soldier. Lincoln thought that States per se didn't have the right to secede. He treated individual soldiers, at least at the beginning of the war, as individual criminals. But he didn't give them any of the normal due process that we would expect criminals. When he captured somebody from Lee's army, he treated them as a prisoner of war. So there's that question, and to ask you whether that has any precedential value.
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Lincoln's suspension of habeas corpus, of course, there were, among other things, railroads being torn apart in Maryland by sympathizers with the Southern rebellion and there were Union troops that were attacked on the way. Habeas was suspended. That was just one of several cases.
And finally, as you deal with whether the Civil War and some of the other historical episodes in our history where we have had to cut back on normally anticipated and expected civil liberties, finally, I'd like to congratulate you, because there's two things that we can with some comfort say after September 11. One is that there have been no other successful attacks, and while it's true, as you said, you can't prove a negative, that but for the PATRIOT Act, we would have been attacked successfully, we can note that our enemies have made clear they want to attack us and they have been unsuccessful since September 11. And as you say, to my knowledge, there has been no proven civil liberty abuse under the PATRIOT Act, even though people are invited to bring civil actions under certain cases if they feel like they've been.
So I guess I'm interested in an historical aspect here because we really have a huge dearth of constitutional precedents dealing with how this pendulum swings, civil liberties versus protecting us from foreign threats.
Attorney General GONZALES. Congressman, I'm not sure how to answer that question. One point that I would want to emphasize is that I don't view this, the PATRIOT Act or certain actions by this Government, as reflecting a decision that protecting our country is okay at the expense of civil liberties. I think we can have both. I think we need to have both, quite frankly. I think we need to protect our country. We need to protect our civil liberties. I think that's very, very important.
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I think the PATRIOT Act is an example of the Congress and the President coming together and trying to achieve that balance, because we all understandthere are reasons these safeguards are in here. Even after thesix weeks after the most horrific attack on this country, people still wanted to have safeguards because Members of Congress and the President understood that civil liberties, the protection of civil liberties, was equally important.
And so I think that it would be a mistake to say that, depending on what the circumstances of the moment are, that sometimes civil liberties should be sacrificed in any way in order to protect the security of this country.
Chairman SENSENBRENNER. The gentleman's time has expired.
The gentlewoman from Texas, Ms. Jackson Lee.
Ms. JACKSON LEE. Thank you very much, Mr. Chairman. Allow me on my time a moment of personal privilege to welcome General Gonzales and to recognize that our paths cross as lawyers in the City of Houston, and let me applaud you for your historical family background and the history that you're making on behalf of the American people.
And I might say that my questioning is not personal. I appreciate you very much and I wish your family and you best and well as you proceed in this very important position.
We have spoken on occasion on some issues dealing with civil rights and so I think you have a sense of my concern as we look at the issue of either reauthorizing or making permanent several positionsspecific provisions of the PATRIOT One. I think it should be well noted that I supported a PATRIOT Act One legislative initiative as drafted in a bipartisan manner by this same Judiciary Committee. That was not the bill that arrived at the floor of the House and, therefore, I was compelled to stand, I think, more importantly with the Constitution and security by voting against it.
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Let me just share very briefly some words that I think are important to note. ''Individual liberty is individual power. The nation which enjoys the most freedom must necessarily be in proportion to its numbers the most powerful nation.'' That's John Quincy Adams.
Another by Samuel Adams notes that ''the Constitution should never be construed to authorize Congress to infringe,'' and then it goes on to say, ''on the ability of citizens to redress their grievances or to subject the people to unreasonable searches and seizures of their possessions, papers,'' or, as I said, possessions.
I say that because we seemingly have conceded to losing our rights because of the horrific act of 9/11. I think we are consistent in this Congress and in this Judiciary Committee to acknowledge, and I think you have acknowledged it, General, along with the President, that our highest responsibility is to secure the Nation and to secure the people of the United States. I don't step away from that responsibility.
I would argue, however, that the tone in which we have proceeded in the legislative initiatives have really done us in, and I say that because your beloved Texas now seems to be under the eye of the new Minutemen, Minutewomen. Border watchers have eyes on Texas. So because we have either created this atmosphere of fear, because we have either not done our job, we have not protected civil liberties, we have not enforced laws that we already have dealing with border security, we now have men taking up arms and placing themselves on the border, even to the extent that Border Patrol agents have said it may be a dangerous condition. So I'm concerned about the tone.
Page 80 PREV PAGE TOP OF DOC In addition, before the PATRIOT Act Two was pulled, we even had a potential section 501 that would take away someone's citizenship, which the Supreme Court under Justice Warren said that the 14th amendment protects our citizenship unless we voluntarily give it up.
It is the tone that has been created, and frankly, I don't believe that the PATRIOT Act provisions really have made us safer. I hope that we will vet them at a very high standard as to the standard of how they have denied our civil liberties, how they've created an atmosphere for Guantanamo Bay, and I do not criticize the military that is doing their job. I do criticize the existence of Guantanamo Bay for no reason. I criticize the existence of a determination of enemy combatant, which seemingly has no basis in law.
So I raise these questions with you. One, would you be able to provide for me the numbers of Pakistani who were required to sign up on the registration list in the early part of 2002-2003, the numbers of them? You can't give me names. How many were signed up? How many terrorists were found off of that list? That is my first question, and you obviously may not have that at your fingertips. I'd appreciate your issue on that.
Section 206 is the roving wiretap, and my question to you on that, the value of the roving wiretap. It doesn't seem to have enough restraints in terms of, again, the litmus test of civil liberties.
And my last one is to ask prospectively, because of the tone that's been created, do you think it's viable that we should have as a provision of any PATRIOT Act the removal of one's natural born citizenship that is protected under the 14th amendment? And I thank the gentleman for his concern on these questions.
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Attorney General GONZALES. I don't have the information on Pakistan. I'll see what I can learn and see what information can be provided.
On 206, 206 isallows the use of roving wiretaps in connection with intelligence investigations, and the use of roving wiretaps based on a probable cause standard is something that's been around for many, many years, has been reviewed by the courts, and I do believe does meet constitutional standards.
In terms of removal of citizens, I don't recall the specific provision you're referring to in what was, quote, PATRIOT
Ms. JACKSON LEE. Section 501.
Attorney General GONZALES.PATRIOT Two, but I'd be happy to look at it and give you my views about it.
Chairman SENSENBRENNER. The gentlewoman's time has expired.
Ms. JACKSON LEE. I thank you.
Chairman SENSENBRENNER. The gentleman from Texas, Judge Gohmert.
Mr. GOHMERT. Thank you, Mr. Chairman.
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General Gonzales, I've been a fan of yours for a long time, going back to my days as a judge and Chief Justice back in Texas. Proud to have you here. Thank you for your testimony.
I want to go quickly into these things. Five minutes goes fast. I was watching about 1 or 2 this morning a replay of some of your testimony yesterday with the FBI Director before the Senate and I wanted to clarify something with regard to section 215 and also 217. You had mentioned there was a lot of concern. Obviously, there is a lot of concern. Under 215, where it discusses that you or your designee may make an application for order and it's of a U.S. person, and it goes on that that would be to a judge of a court or magistrate, specifies that, and then it says if the judge finds the application meets the requirements of this section, then he will grant the warrant.
And I heard a lot of different discussion on different standards of proof and I want to make sure thatand I don't see anything in the section, haven't seen it, which says what is the burden of proof when you go before that judge that's designated and I want to make clear for the recordfind out clearly for the record what is that standard you have to prove to that judge or magistrate.
Attorney General GONZALES. Our position is, is that the standard that has to be met is a relevance standard, the same kind ofsimilar to standards that you would have to showto meet in connection, say, with a grand jury subpoena.
You are correct that the relevancethat standard is not explicitly mentioned in 215. Our experience is, is that judges have construed 215 to impose a relevance standard. That is a position that we have argued in litigation. It is one of the amendments to 215 that the Department would support because we believe that that is the appropriate standard, to include a specific relevance reference.
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Mr. GOHMERT. Also, there's obviously been a lot of concern about the sharing of information, and as you've heard from both sides of the aisle, nobody's meaning this personal to you, but apparently, there was a precedent back in the early 1970's that had a counsel that was abusive enough he had one FBI file, went to prison for it. And then I hear tell there's even been a White House Administration so corrupt they might have even had 1,000 FBI files and didn't have an Attorney General with the wherefore to go ahead and prosecute such a terrible abuse. So you can understand why there'd be some concerns about those things if it's true that you could really have that kind of abuse at the highest levels. I'm not concerned about you or this good President, but you never know. You can have a President like that.
So who gets this information that you glean? Does it, under your interpretation, ever get to the White House?
Attorney General GONZALES. Oh, absolutely not. We're talking about matters relating to prosecution. Certainly when I was in the White House and as the White House Counsel, we tried to be very, very clear.
First of all, we tried to certainly limit any communications between the White House and the Department of Justice on any criminal matter. It would have to go through the counsel's office because we were very, very concerned about in any way of sharing information between the White House and the Department of Justice, and even in communications between the counsel's office and the Department of Justice, we were also very, very careful about the information and the kinds of questions we would ask about a particular case.
Page 84 PREV PAGE TOP OF DOC No, believe me, we understand how sensitive this information is and we took great care to ensure that we didn't get access, and the Department was very good in ensuring that the White House did not get access to very sensitive information.
Mr. GOHMERT. And just so you know, there are those of us who do not criticize an Attorney General or a Department of Justice that if they need information about Iraq, they question people that have knowledge about Iraq and don't go to New Zealand to ask a farmer just so they don't look like they're profiling.
But I want to ask you also, do you feel like there ought to be a criminal code with regard to violations of national security? Do we need that?
Attorney General GONZALES. Congressman, I don't know whether or not we need it or not, quite frankly. I think that our current laws seem to be working well, but obviously, if you're serious about it, I'd be happy to think about it.
Mr. GOHMERT. Well, thank you. I wish you would. And I am in favor of a sunset provision. Thank you very much, Mr. Chairman.
Chairman SENSENBRENNER. Thank you.
The gentlewoman from California, Ms. Lofgren.
Ms. LOFGREN. Thank you, Mr. Chairman, and I am glad that we are having this hearing. I have felt for the past several years that we should have had some oversight in a formal sense in the Committee. And I think back to those days after 9/11 and the Committee really did work closely together, and I remember over the weekend in this very room personally being here and working on the drafts before the Committee with Viet Din and others who wereand we had a unanimous vote, I believe, out of this Committee.
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Key to that was a sunset to make sure that we hadn't made a mistake, and I think I'm going to want a continued sunset just so it forces the Committee to review how this is going.
Along those lines, and you've mentioned in answer to others that things are in litigation. I know that there's been times that the Committee hasn't received information because of security concerns. Every Member of the Committee has signed an oath and we are authorized to receive classified information in rooms that are here in the Capitol where you leave all your beepers outside. I'm hopeful that we can get the information you cannot give in a public session in a secure site so that we can fully understand what's going on here so that we can do our job.
I have a couple of questions on specific elements of the Act. You mentioned 215. I'll tell you, I don't think any of us had in mind libraries and bookstores when that provision was put together, and you say it's never been used with a library or a bookstore, and I'm wondering whether the Department would support an effort to specify that personally identifiable information in bookstores or libraries would be excluded from section 215.
I'm also interested in section 218. I want to know how many terrorism prosecutions have actually resulted from that section. If you don't have it today, I'd like it later. I just want to know the volume. How many have been issued and how many prosecutions for terrorism-related activities have occurred?
And then I alsofive minutes is not enough to get all our questions done, but I do have a general concern aboutwell, many things, but also habeas corpus. The very initial draft of the first PATRIOT Act sent over from the Department had a provision to suspend habeas corpus. As we know, in article I, section 9, suspension of habeas corpus is a power reserved to the legislative branch. It never really made it to print, but we're not going to suspend habeas corpus. But, I'm concerned that in a back door sort of way, we've ended up with that result.
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And one of the questions that's not in the PATRIOT Act itself, but it's part of the general effort on terrorism abatement, is the use of witness provisions, material witness statutes. The last update I've been able to find is from 2003, where the statute had been used supposedly 50 times. I don't know what's happened since that time, but here's the concern that's been raised in the press, that the material witness statute has been used but that it hasn't been used to produce testimony. So I'd like to know how many times this has been used in the Department's efforts to combat terrorism and how many of those individuals actually ended up testifying, because I do think that that is an issue relative to due process.
I'm hopeful that we will have a number of hearings. I haven't had a chance to ask the Chairman yet, but I'm wondering if you could address the three questions that I've asked.
Attorney General GONZALES. As to 215, whether or not I could support a provision that would exempt from the reach of 215 personal information from libraries and bookstores?
Ms. LOFGREN. Personally identifiable information from libraries, bookstores, and I think also medical records.
Attorney General GONZALES. Okay. I have said beforeI mean, the Department has no interest in rummaging around and learning about people's personal library habits and looking at their medical records. We are concerned about making sure we have information about people who use libraries to plot for purposes of engaging in some kind of terrorist activity.
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We know that, certainly in the criminal context, libraries have been used and there have been investigations, there have been subpoenas of library records in the criminal context, and we've had convictions
Ms. LOFGREN. Well
Attorney General GONZALES.and my own judgment, Congresswoman, is that we should not allow libraries to become safe harbors for terrorists.
Ms. LOFGREN. If I may
Chairman SENSENBRENNER. The time of the gentlewoman has expired.
Ms. LOFGREN. I'll give a follow-up question to you.
Chairman SENSENBRENNER. The gentleman from Indiana, Mr. Hostettler?
Mr. HOSTETTLER. Thank you, Mr. Chairman, and thank you, General Gonzales, for being here, and congratulations on your appointment and thank you for your willingness to take on such a tough job. I, like many of my colleagues, have received numerous questions since passage of the PATRIOT Act and my support of the PATRIOT Act regarding section 213. I would like to read to you the fourth amendment to the Constitution, and I have a question for you afterwards.
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Quote, ''The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures should not be violated and no warrants shall issue but upon probable cause supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized,'' end quote.
I don't see in the fourth amendment to the Constitution a requirement for prior notification. Do you see that in the fourth amendment
Attorney General GONZALES. No, and
Mr. HOSTETTLER.in the text of the fourth amendment?
Attorney General GONZALES.and I believe the Supreme Court in a case called, I think, Dowdia v. United States, has indicated that the fourth amendment does not require that notice be given when the warrant is executed, that it is constitutionally permissible to execute the warrant and to provide notice after the fact.
Mr. HOSTETTLER. And, in fact, even though I'm not suggesting that we do this, but the text of the amendment itself does not even require for any notification whatsoever, be it prior or delayed notification, the text of the amendment.
Attorney General GONZALES. Well, I presume your reading is correct and there does not appear to be a requirement for notice, but obviously we do give notice, and even in the connection of section 213, notice is given in every case.
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Mr. HOSTETTLER. Thank you. I have a question also about section 215. You, I believe, stated in your oral testimony that a recipient of a section 215 order is allowedcan be allowed to challenge that order prior to its execution. Did I hear that correctly?
Attorney General GONZALES. It is our position that under 215, a recipient could challenge that order
Mr. HOSTETTLER. Prior to its execution? Prior to the order being executed?
Attorney General GONZALES. And someoneif information is received, we believe that a person could seek to have that evidence or information suppressed in a subsequent proceeding. But yes, you do have the opportunity to challenge the execution of that order, in our judgment. We understand that 215 does not make that explicitly clear and we are prepared to support an amendment that would make that clear.
Mr. HOSTETTLER. Would there be a situation that you can foresee where that would be harmful to the investigation and potentially, therefore, the national security, if that process was allowed to be challenged prior to the execution?
Attorney General GONZALES. I suppose that it could be. Obviously, we would do work as quickly as we could to make sure that that issue was heard and resolved by a judge as quickly as possible.
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Mr. HOSTETTLER. Thank you very much. I yield back the balance of my time.
Chairman SENSENBRENNER. The gentleman from Virginia, Mr. Scott.
Mr. SCOTT. Thank you. Thank you, Mr. Chairman.
Mr. Gonzales, we've heardin talking about FISAyou keep talking about terrorism. FISA is not limited to terrorism or even criminal activity, is it? General intelligence, foreign intelligence
Attorney General GONZALES. Sure, yes.
Mr. SCOTT.a trade deal, spying on people. So we're not necessarily talking about crimes.
Attorney General GONZALES. That is correct.
Mr. SCOTT. Is a roving wiretap limited to terrorism?
Attorney General GONZALES. Umm
Mr. SCOTT. I mean, if you get a warrant
Page 91 PREV PAGE TOP OF DOC Attorney General GONZALES. No. No. No. A roving wiretap is not limited to terrorism.
Mr. SCOTT. Not even
Attorney General GONZALES. Roving wiretaps have been used in the criminal context for many, many years.
Mr. SCOTT. But if you get a FISA wiretap, you don't even have to start off with a crime, just foreign intelligence.
Attorney General GONZALES. Yes, that's correct.
Mr. SCOTT. You can get a roving wiretap, no crime even involved.
Attorney General GONZALES. But again, let me emphasize that this is not an authority that's used in the sole discretion of the Government. We do have to go to a Federal judge
Mr. SCOTT. Okay. Well
Attorney General GONZALES.establish probable cause
Page 92 PREV PAGE TOP OF DOC Mr. SCOTT. Probable cause of what?
Attorney General GONZALES. Establish probable cause that the target is either a foreign power or an agent of a foreign power and probable cause with respect to the location or facility that the target is either about to use or is using a certain telephone facility.
Mr. SCOTT. I didn't hear you say a crime is about to be committed because that's not part of a roving wiretap, and the probable cause, most people think you're talking about probable cause of a crime. That's not what you're talking about, is it? No.
Now, are you willing to limit this power to terrorism?
Attorney General GONZALES. Am I willing to limit section 206 to terrorism?
Mr. SCOTT. Right.
Attorney General GONZALES. Mr. Scott, I would have to look at that, and I'd be happy to consider that, but again, I do believe that this is an important tool
Mr. SCOTT. Okay, but
Attorney General GONZALES.in dealing with the war on terrorism
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Mr. SCOTT. You keep talking about terrorism, and let's limit it to terrorism. We already ascertained that some of this, no crime is even implicated because you're talking about foreign intelligence.
Let me ask you another question on the roving wiretap. We had some discussion when we passed that thing that you ought to ascertain that the target is actually in the house where the phone is before you start listening to it. You can put these taps all over the placecell phone, home phone, pay phone on the street corner if they use the phones. Shouldn't we require that you ascertain that the target is actually the one using the phone before you can start listening in?
Attorney General GONZALES. There is no ascertainment requirement even in the criminal context with respect to wire and electronic communications. There is an ascertainment requirement with respect to oral communications, such as bugging.
Mr. SCOTT. Should we put that in the bill, that if you're going to wiretap a person, you ought to ascertain that it's actually the person you're listening to, particularly because it may not be his home phone? It may be his next door neighbor's home phone if you know he keeps using that phone.
Attorney General GONZALES. Well, I think that the statute is written in such a way that you have to have probable cause that, in fact, the target
Mr. SCOTT. You've got probable
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Attorney General GONZALES.is using or about to use a particular phone.
Mr. SCOTT. And so you shouldso there is implicated an ascertainment requirement that you've got to ascertain that the target is actually in the next-door neighbor's house before you start listening to the next door neighbor's phone.
Attorney General GONZALES. It's my understanding that under 206, you have to first identify a target and you cannot go up on a roving wiretap unless the target is either using or about to use the phone.
Mr. SCOTT. And so you wouldn't be offended with an ascertainment requirement.
Attorney General GONZALES. I would have to look at that, Mr. Scott.
Mr. SCOTT. Okay. We went to great lengths to change the law on foreign intelligence to suggest that you can get one of these warrantsit used to be if the purpose of the warrant was foreign intelligence, now if it's a substantial objective, not the primary objective. If the purpose of the warrantof getting a FISA wiretap is something other than foreign intelligence, what is it? What are the other excuses for getting the FISA wiretap?
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Attorney General GONZALES. If it's other than foreign intelligence?
Mr. SCOTT. Right.
Attorney General GONZALES. You mean
Mr. SCOTT. The primary purpose is something other than foreign intelligence.
Attorney General GONZALES. Criminal activity.
Mr. SCOTT. You mean criminal activity without probable cause, without having to go through the rigamarol of getting a probable cause warrant?
Attorney General GONZALES. Mr. Scott, I would want to study this and get back to you on this.
Chairman SENSENBRENNER. The time of the gentleman has expired.
The gentleman from North Carolina, Mr. Coble.
Mr. COBLE. Thank you, Mr. Chairman.
Page 96 PREV PAGE TOP OF DOC General, several months ago, a constituent came to me and he said, ''We've got to get rid of this PATRIOT Act. It has the trappings of creating a crisis in this country.'' I said, ''Well, give me an example where it has adversely affected you.'' He said, ''I can't do it.'' I said, ''Well, give me an example of where it's adversely affected anyone you know or anyone you've heard about.'' ''Can't do it.'' I said, ''Well, you're not helping me any.''
General, I fear this exchange between my constituent and me typifies widespread misunderstanding about the PATRIOT Act, that many people have heard how onerous and how bad it is, but they can't give you examples where they've been adversely affected. I think that applies to 213. I'm glad you mentioned 213 because I've talked to many people who believe that delayed notification of a search warrant was born when the PATRIOT Act was enacted, and, of course, it was available long before then, as you pointed out. Of course, that's not subject to being sunsetted.
Let me shift gears to the library situation. Some folks have referred to it as the ''angry librarians' provision,'' and I'm not sure that's accurate. I don't know that the librarians are angry, but I think they're perplexed, probably, and perhaps because of misunderstanding, because I'm told, and I think you may have alluded to this this afternoon, I don't think any inquiries have been leveled against libraries, is that correct, under the PATRIOT Act?
Attorney General GONZALES. We have not exercised the authorities under section 215 for library records. Let me make one thing clear, because I want to be obviously forthcoming with the Committee. There have been library records produced to the FBI for purposes of a foreign intelligence investigation. We've gone forward to librarians. In some cases, the libraries have come to us concerned about the library habits of some of their customers and they have shared information with us voluntarily.
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So I don't want to leave the Committee the impression that there hasn't been some exchange of library information with the FBI, but it is true that section 215that authority under section 215 has not been used to obtain library records.
Mr. COBLE. All right. Let me ask you this, Mr. Attorney General. If the information can be obtained with a grand jury subpoena, which it can be done, that does not require a court order, why would the Department of Justice want to use a FISA order that requires a court order and limits the type of information that the Department can obtain?
Attorney General GONZALES. It may involve a very, very sensitive investigation where we may not want to jeopardize the source or the investigation itself, and therefore, we feel more comfortable pursuing a 215 order rather than a grand jury subpoena.
Mr. COBLE. Permit me to revisit the Mayfield case, and I realize there's litigation here and you're probably restricted as to how much you can say about that, but is it not true that the Attorney General is currently investigating whether or not PATRIOT Act authorities were abused in the case? I'm told that it is ongoing.
Attorney General GONZALES. It is and has been looked at and is being looked at. I don't know if that review is complete, yes, by the Department.
Mr. COBLE. And finally, Mr. Attorney General, to follow up on Mr. Scott's questioning regarding the roving wiretaps, are there not two separate entities, that is to say, a roving wiretap for intelligence matters, on the one hand, and then a roving wiretap for criminal matters on the other, is that not correct?
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Attorney General GONZALES. Section 206 deals with roving surveillance under FISA. There is authorityother authorities that govern the use of roving authorities in criminal matters.
Mr. COBLE. Well, I want to reiterate what you said earlier about the importance of preserving our civil liberties while at the same token arming ourselves against would-be terrorists, and I, not unlike you, I believe we can do both. And I don't know you, Mr. Attorney General, but I like you. I like your style. Good to have you up here.
Mr. Chairman, I beat the red light.
Chairman SENSENBRENNER. And now the other gentleman from North Carolina, Mr. Watt.
Mr. WATT. Thank you, Mr. Chairman, and first, let me apologize to General Gonzales for not being present to actually hear his testimony. Unfortunately, I have two hearings going on at the same time and I was trying to save CDBG and deal with the PATRIOT Act at the same time.
I got a briefing from my staff to try to avoid territory that had been covered by other Members of the Committee, so I want to zero in on one thing in which I was involved during the Committee's consideration of the PATRIOT Act and that's the Privacy and Civil Liberties Oversight Board. You're familiar with the provisions in the law that talk about that?
Page 99 PREV PAGE TOP OF DOC Attorney General GONZALES. I believe I am, Congressman.
Mr. WATT. Okay. All right. I'll just read, because I was interested to know what had transpired about the privacy oversight because privacy was obviously a major issue that we were confronting when we were trying to deal with this piece of legislation. So I got the Congressional Research Service to pull upsend us a report, and here's what it says.
It says the Conference Committee version of the intelligence reform legislation retained the mandate for a Privacy and Civil Liberties Oversight Board. While the board would have most of the review and advice responsibilities contained in the Senate-adopted version of the legislation, it would not have subpoena power, but was authorized to request the assistance of the Attorney General in obtaining desired information from persons other than Federal departments and agencies. Now, this is the intelligence reform bill that got passed and that they are giving me the update on.
It goes on to say that no nominations to membership positions on the Privacy and Civil Liberties Oversight Board were made in the early weeks of the 109th Congress and the President's fiscal year 2006 budget contained no request for funds for the panel.
Now, my question to you is, ifobviously Congress decided this Privacy Oversight Review Board was an important ingredient. You've superimposed this intelligence reform stuff on top of the PATRIOT Act. First of alltwo questions. First of all, do you think it's important to have a Privacy Review Board
Page 100 PREV PAGE TOP OF DOC Attorney General GONZALES. I think it is important that we review the actions of the Government to ensure that the privacy rights of Americans are protected.
Mr. WATT. Okay. Well, at least we are together at that point.
Second question, how could we extend the sunsetted provisions of the PATRIOT Act if the Congress having mandatedthis says it was a mandate to create this board, and the President not having made any nominations to this board and not proposed any money to fund the operations of the board. I mean, it seems to me that that would be directly contrary to the wishes of the Congress.
Attorney General GONZALES. Well, I can assure you, Congressman, that the protection of the privacy rights and the civil liberties of all Americans is a priority for our President. I don'tnot being in the White House, I don't know about the discussions or decisions regarding the budget. I do knowmy latest information, it may be stale now, but my latest information is that the White House is in the process of identifying people to place on the board.
But in the interim, as you know, the President did sign an Executive Order creating a Privacy Board which
Mr. WATT. No, he didn't create a Privacy Board. He created a Privacy Officer and he did that actually before wethe intelligence reform bill went through and we mandated for that purposeCongress mandated for that purpose a board that was to be staffed, not an officer inside some department.
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Attorney General GONZALES. Respectfully, Congressman, it is a board chaired by the Deputy Attorney General and includes representatives from various agencies
Mr. WATT. All insiders.
Chairman SENSENBRENNER. The time of the gentleman has expired.
The gentleman from Arizona, Mr. Flake?
Mr. FLAKE. Thank you, Mr. Chairman, and thank you, General Gonzales.
Let me just try to bring this to the real world for a minute here with a real world scenario and see if we're on the same page here. You may be familiar with one of the Fox News analysts, Andrew Napolitano, who wrote an op-ed a while ago, and let me just read a portion of it and get your response to it.
Quote, ''The Government can now, for the first time in American history, without obtaining the approval of a court, read a person's mail and prosecute a person on the basis of what is in the mail.'' Is that an accurate reflection of the law?
Attorney General GONZALES. I'm notI don't believe it is an accurate reflection of the law. Again, if we're talking about the exercise of authorities under the PATRIOT Act, in most cases, it does involve the Department going to a Federal judge and getting permission to use those authorities.
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Mr. FLAKE. I understand in most cases, but is that possible now for the first time in history, without obtaining the approval of a court, to read a person's mail and then prosecute the person on the basis of what is in that mail?
Attorney General GONZALES. That sounds to me like it would be a search and I think that you would need probable cause to do that. You would need a warrant to do that and you'd have to go to a Federal judge in most cases, except, I think, in very rare circumstances, if in the event of an emergency, but even then, you'd have to go to a judge after the fact and explain what you've done. So I don't think that what he has said is accurate.
Mr. FLAKE. But it would be accurate if you say in certain cases, you would have to go to the judge after the fact
Attorney General GONZALES. But those are very rare and extraordinary circumstances, and so
Mr. FLAKE. How many of those circumstances have we had?
Attorney General GONZALES. I'm not aware of any.
Mr. FLAKE. None?
Attorney General GONZALES. I'm not aware of any.
Page 103 PREV PAGE TOP OF DOC Mr. FLAKE. If there are some, could you get back to my office with that information?
Attorney General GONZALES. I can certainly look into it.
Mr. FLAKE. Thank you. I appreciate that. There's a lot of talk about a wall between intelligence and law enforcement that the PATRIOT Act helped eliminate. Is it possible that that talk of this wall has been exaggerated. Let me just read a statement from Judge Royce Lamberth and then get your reaction.
''The FISA court has long approved, under controlled circumstances, the sharing of FISA information with criminal prosecutors as well as consultations between intelligence and criminal investigations where FISA surveillances and searches have been conducted.'' Is that the case? Do you dispute that statement?
Attorney General GONZALES. I think that in actual practice, it's been the case that law enforcementbefore the PATRIOT Act, there was a reluctance amongst the law enforcement community and the Intelligence Community about sharing of information and that law enforcement personnel were concerned that if they shared too much informationif too much information was shared with intelligence, the Intelligence Community, it might jeopardize a prosecution. And so people were being very careful and there was a reluctance to share information, and I think after the PATRIOT Act, that reluctance has gone away.
Mr. FLAKE. So the wall was more a function of a culture that existed than
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Attorney General GONZALES. Well, there certainly was a culture that existed. Rightly or wrongly, I think people wanted to be very, very careful because people inmost people in Government really doare concerned about doing the right thing and not doing things that in any way infringe upon the civil liberties of ordinary Americans. And so, you know, I certainly wouldn't characterize it, I mean, as aI think people were just doing what they thought was the right thing to do.
Mr. FLAKE. Now they're less reluctant to infringe, or
Attorney General GONZALES. Well, now they know. They've been given clear guidance that this is appropriate conduct and it is lawful conduct.
Mr. FLAKE. With regard to delayed notification, what is the longest period of time now that a person can be under surveillance without their knowledge?
Attorney General GONZALES. My understanding is that there have been six cases where the judge has saidhas not imposed a time to provide notice that it had been an ongoing investigation. The judge has said, well, we'll see how the investigation proceeds. So there have been six such cases. You put those aside, I think the longest time period has been 120 orit's been 180 days.
Mr. FLAKE. A hundred-and-eighty-days?
Page 105 PREV PAGE TOP OF DOC Attorney General GONZALES. Yes.
Mr. FLAKE. But in those six cases, it's fair to assume that some of those investigations may still be going on or they're ongoing?
Attorney General GONZALES. I don't know. That may be, in fact, be the case, but I'm not sure.
Mr. FLAKE. Very quickly, before my time runs out, let me just be clear about the Justice Department's preference or position, I guess, on sunsets. I want to commend the Chairman for insisting on the sunset. I think to the extent that we've been careful and circumspect, it's largely as a result of the sunset provision. Are you saying that the Justice Department wants to do away with the sunset provision?
Attorney General GONZALES. I don't know whether or not the sunsets are necessary. I fully trust Congress to perform its oversight functions. I hope Congress doesn't need the sunset provisions in order to perform its oversight functions. The sunsets were put in there initially because of the fact that people were concerned that decisions had been reached quickly about the bill. We now have a history of three-and-a-half years, and so my view is that Congress has all the authority it needs to perform the oversight necessary in the way that this Department exercises the authorities under the PATRIOT Act.
Chairman SENSENBRENNER. And the time of the gentleman is expired, and to paraphrase President Reagan, you trust and we verify.
Page 106 PREV PAGE TOP OF DOC The gentleman from Massachusetts, Mr. Delahunt.
Mr. DELAHUNT. Yes. I thank the Chairman and I welcome General Gonzales and I welcome your words.
To segue the gentleman from Arizona, Mr. Flake, you referenced you have confidence in Congress to exercise its oversight responsibilities and functions in our constitutional order, but I share the same concern that my colleague to my left, Mr. Schiff, articulated earlier to you about the lack of cooperation during the course of the past 4 years in terms of providing that information to Members of Congress so that we can exercise our oversight. So I would suggest that when we talk about sunsets, sunsets have played a very, I think, important role because now we seem to be engaged hopefully in a new way.
I've had my own experience. I served on theas an adjunct, if you will, on the Government Reform Committee during its inquiry into the conduct of some individuals in the office of the Boston FBI and it was only under threat of subpoena that we were able to secure a prosecutorial memorandum that dated back some 40 years that had nothing in there whatsoever that could be interpreted to be endangering of national security.
So I really hope that we are moving, and I listened to your words and I respect those words, but I hope we're moving in a different direction in terms of the relationship between this branch, this Committee, and the Department of Justice.
You know, I think it's critical in a viable democracy to emphasize that the concerns of a citizen to their privacy are absolutely essential, and at the same time that as much transparency as possible is important in terms of the confidence of the American people in its Government, in the integrity of its Government. It's a balancing act, and I understand that.
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But myself and Mr. Berman filed legislation today. He alluded to it earlier in his question to you about the issue of data mining. It's a concept that I'm sure you're familiar with where there's a broad search of both public and non-public databases without a particularized need being articulated to discern whether there are patterns that may implicate some sort of terrorist cabal. He and I, as part of a bill that, with the support of the Chairman, came out of Committee, didn't go anywhere when it got further along the legislative process, but that would have required each head of a Federal agency to report to Congress about their initiatives regarding data mining.
The American people are concerned about privacy. I would suggest that this is something that I hope you would review carefully and support if we are going to have the kind of relationship between the branches, and specifically this Committee, that you have expressed and others have expressed.
I don't know if you're familiar with that particular provision, but if you have any comments, I'd like to hear them.
Attorney General GONZALES. I look forward to reading your legislation. I can say that I, like other Americans, would be very concerned about this issue. I think protection of privacy rights are very, very important, and rather than comment any further, I'll read the legislation and be happy to talk to you about it.
Mr. DELAHUNT. I look forward to hearing from you. I'd make one final observation, is that, you know, when we see that there are 14 million new papers that have been classified, 25 percent over the previous year according to the latest reports, I just want to let you know that I think many of us, and I think on both sides of the aisle, are very concerned about what's happening as far as a culture of concealment, if you will, and secrecy in Government that's got to be addressed.
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Attorney General GONZALES. Thank you, Congressman.
Chairman SENSENBRENNER. The gentleman yields back.
The gentleman from Virginia, Mr. Goodlatte.
Mr. GOODLATTE. Thank you, Mr. Chairman. Thank you for holding this hearing.
General Gonzales, welcome, and thank you for the fast start you've gotten as our new Attorney General and thank you for coming to speak with us today.
I'd like to call your attention to a couple of other issue areas that very much relate to our security but are not directly on the PATRIOT Act. I would like to follow up on the topic that the gentleman from Texas, Mr. Smith, addressed earlier, and that is immigration. I have legislation in the Congress to address a problem that was identified by the State Department last year with regard to the Visa Diversity Program, or also called the Visa Lottery Program, whereby individuals are given not just a visitor's visa, but permanent resident status in the United States not based upon any particular job skill, not based upon having any close family relationship with anybody, but simply by having a little bit of information put into a computer. Millions of people around the world do this, and then 50,000 are drawn out every year, the lucky winners, and receive green cards to come to the United States.
Last year, the State Department's Inspector General testified before the Immigration Subcommittee that the Visa Lottery Program posed a significant risk that hostile intelligence officers and terrorists, especially those with no previous criminal backgrounds, could apply for the lottery and be awarded permanent resident status, and I wonder if the Department of Justice has conducted any analysis on the threat posed by this program. Have you or anybody else at the Department examined this report from the State Department?
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Attorney General GONZALES. I'm not aware of any examination, Congressman, but I'd be happy to look at it. It soundsit concerns me, so I'd be happy to look at it and get back to you.
Mr. GOODLATTE. That would be very helpful and I would appreciate that.
Now, the other area that I'm concerned about is in the area of piracy, particularly intellectual property theft, which is increasingly viewed as being something that's being used by various subversive organizations, including terrorist organizations, as a fundraising mechanism to fund their operations. As author of the ''No Electronic Theft Act, or NET Act,'' and other legislation dealing with piracy, and as co-chair of the Congressional International Anti-Piracy Caucus, I'd like to first commend the Department of Justice for its work in setting up the Intellectual Property Task Force. This has, frankly, been long overdue.
For years, we've had legislation on the books to enforce these laws, but not enough priority was made for it. That was done last year. Other efforts have been made by the Department, as well, to combat intellectual property theft. Projects like Operation Fast Link is a promising example of how our Government can work internationally to ensure that the messages sent are that intelligence piracy is a serious crime, and I'm wondering what your intentions are as the new head of the Department. Is that leadership going to continue in the effort to investigate and prosecute these types of intellectual property crimes?
Attorney General GONZALES. Absolutely. It will remain a priority for the Department. In fact, I'm going out to, I believe, California perhaps later this month to talk about this issue to some of the groups out there. We realize that it remains a problem. It is a vehicle to finance potential terrorism activities and so, yes, very much so a priority. We continue to consider the work of the Intellectual Property Task Force as very, very important.
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Mr. GOODLATTE. Good. Thank you very much. The last area I'd like to address is the problem that we're seeing all across the country. It's particularly a very serious problem in my district. Our United States Attorney for the Western District of Virginia, John Brantley, briefed Senator Warner and I last week on the problem with methamphetamines. This seems to be a particularly great problem in rural areas all across the country. The Shenandoah Valley has been particularly hard hit.
It's a problem that entails being able to get hold of various basic household commodities and make some very dangerous drugs from them. I'm not sure that people realize that they're injecting Drano and battery acid and phosphine gas, some of the things that go into making methamphetamines, when they inject this, but it is a serious problem in rural areas and I'm wondering, is the Department under your leadership committed to meeting the increased need for law enforcement efforts because of the prevalence of this particular type of illegal drug activity in rural parts of America?
Attorney General GONZALES. Absolutely, yes. Just in my 2 months as Attorney General, in my visits with law enforcement, I have been struck by how often I've been told how serious this problem is all across the country.
Chairman SENSENBRENNER. The gentleman's time has expired.
The gentleman from New York, Mr. Weiner.
Mr. WEINER. Thank you, General. Welcome, and thank you for taking so much of your time.
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I hope you recognize by this point in the hearings, both in the other body and here, what the fundamental problem is that you face with Congress now, is that, in essence, what the PATRIOT Act reflected was a desire on the part of the Administration of greater authority, and you essentially said to Members of Congress like myself, trust us that we're going to use it wisely, that we're going to use it with discretion, we're going to use it with restraint. And that is why, when you say, well, why do you need something like delayed notification, well, you have to trust us and trust the judge because, frankly, the individual that is beingthat the search is over is not going to know and be able to fight to defend their own rights.
And where you've lost so many of us, including people like myself who have been eager, as a New Yorker and someone who considers himself as a moderate on law enforcement things, is this cloak of secrecy that has dominated the discussion over the last 4 years. Obviously, a rise in FISA activity and yet there's less information than there has perhaps ever been. Reports of secret arrests and detentions without charges. What it does is it makes us, who were happy about a sunset, completely unwilling to say either, first of all, extend them, or even further, to eliminate the sunset altogether.
And then you compound it with other actions in other parts of the Justice Department that completely run counter to real efforts to fight terrorismthe virtual elimination of the COPS program, for example. Your predecessor sat in that chair and said what a great program it was. The President of the United States praised the program, and yet the Justice Department has virtually eliminated it. Homeland security starts at home. Not in this Administration. The COPS program hiring component has all but been eliminated, literally taking cops off the streets.
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So that what Members like myself and Mr. Delahunt and Mr. Schiff and folks on the other side of the aisle are speaking to is this notion that you made a compact. Give us more authority and entrust us to use it wisely. In order for that compact to be successful, in order to get us to say, okay, we agree 4 years later that that has been the case, there has to be more information.
And what has this attitude on the part of the Justice Department brought? Well, it's brought on one side you saying, well, people are creating phantoms of lost liberty, and I think some on the left have said, well, there's enormous intrusions on our lives. Only with more full disclosure to Congress, only with a more full debate that goes on between you and the American public is this going to happen. And frankly, that hasn't happened.
You have exaggerated its value. I believe many on the left have exaggerated the harm it's caused. But fundamentally, you've lost the trust of so many in this Congress. When people like myself and Paul Wellstone of blessed memory vote for the PATRIOT Act, it is because fundamentally we believe it's important to make things safe and we trust those in positions of power to enforce it wisely, and I think you've let us down.
You've let us down because you've let us down in ways that are fundamental and easy to fix. When Congress asks for cooperation, as Mr. Delahunt says, your first reflex shouldn't be no. When there's questions about secret arrests and detentions, you know, frankly, if your concern is about reinforcing the idea that the Justice Department is operating prudently, talk more freely. Have a frank discussion about what's going on in the world. We should not wait until the day of a Senate hearing to find out that there are 35 instances that section 215 was used and 155 times that the sneak-and-peek provisions were used under the PATRIOT Act.
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It is that level of information that, frankly, I think might have even helped your side of the argument if they had been released more steadily over the course of the last 4 years. So that, I would argue, is your problem.
Can I ask a question? I want to make sure I understand it. Section 215, the sneak-and-peek provisions that have delayed notifications, if we were to take away those expanded rights, there are no searches that could not happen. It would simply be a question of whether or not a judge was notified first or whether the citizen was notified first, is that right? But both of those cases, you'd still be able to do the investigations?
Attorney General GONZALES. I don't knowyou're talking about 213. I don't know whether or not we would be able to continue the investigation. The fact that we would in some cases have to make a hard choice whether or not to try to take possession of, say, contraband in order to prevent itsay drugs, for examplewe'd have to make a hard choice between taking a chance and letting the drugs be distributed in order that we could identify all the Members of a very serious drug ring or take possession of the drugs and then jeopardize not knowing who those folks are.
So if 213, the authorities under 213 were eliminated, I think that it could jeopardize some very important investigations.
Chairman SENSENBRENNER. The gentleman's time has expired.
And last but not least, the gentleman from Alabama, Mr. Bachus.
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Mr. BACHUS. Thank you.
Mr. Attorney General, I want to address something that you may not have heard too much about, but that's a 1970 explosive permit law. Now, that law, when Homeland Security came into existence and we passed a lot of the new dictates under the laws we're talking about reauthorizing, the ATF started requiring an explosive permit for anyone that worked in the mines that was around explosives. They asked different mine workers to fill out an application to continue to handle these explosives.
Now, I'll give you an example. I had three mine workers in my district that were taken off the job as a result of their applications. Now, let me tell you about one that agreed earlier today to let me use his name. He's Mickey Birchfield. He's worked 15 years in the mines. He's transported employees and explosives for 15 years. About a month or two ago, he filled out one of these applications and he listed that 17 years ago, when he was 18 years old, he had a disorderly conduct misdemeanor and he said, ''I think I paid a $50 fine.'' Well, the ATF checked and didn't find any record of this, so the only way they knew about it is he said, you know, ''When I was 18 years old, I got arrested for disorderly conduct.''
He has been reassigned off that job to a lower-paying job and he is waiting for the ATF appeal process, and I said 3 weeks ago. It's 3 months ago, and they still haven't acted on that. First of all, they've taken the disorderly conduct thing when he was 18 and taken him off the job.
My question to you is, are you familiar with the ATF and this explosive permitting procedure that they've established, because I have another coal miner that actually was taken off the job and because they didn't have a place for him, he's actually unemployed now. He has actually decided to retire. But do you know, are there any guidelines to how long the ATF can hold these cases, and whyI mean, I justcould you just tell me maybe why, under what rationale they would
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Attorney General GONZALES. I wish I could, Congressman. I don't know. I presume that there are guidelines in place. I'd be happy to go back and look to see what's there and see if we can provide you some additional information about these cases.
Mr. BACHUS. Yes, and you see, that's a real case that is happening today. The reason I bring that up is that you have asked for Homeland Securityyou've asked for new powers, new tools to combat terrorism and we've given you these tools and we hope that there are safeguards in place that we won't have what I consider a civil liberty violation against this guy. He's actually beenhis pay has been reduced. Two other individuals in the district, one is a result of two DUIs, one in 1975 and one in 1984. He's no longer permitted to work in the mines. As I said, he was a year and a half away from retirement and he was told that this process is taking over a year, so he just retired.
Attorney General GONZALES. Maybe we should have our staffs talk and we'll get some additional information. I'll see what we can find out.
Mr. BACHUS. You know, I guess what aggravates this, when we hear, and you've got questions about this, when we hear that people that are on the Terrorist Watch List can purchase guns and then you get a guy that when he was 18 years old had a disorderly conduct thing and he can't work at his job, it raises all kinds of questions. And I know that what I've been told is the list is overly broad and it has a lot of inaccuracies in it, but, you know, it's being used every day when people try to move around this country.
And it's not just these. It's just one thing after another, like I talked to a group this week, Epileptic Foundation, and you'd be amazed at children withthey have these magnetic devices that are implanted within their body. The
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Chairman SENSENBRENNER. The gentleman's time has expired.
Mr. BACHUS.what they have to go through when they go through screening at the airport. So they're put aside and sometimes 30, 40 minutes, even though they have a letter saying
Chairman SENSENBRENNER. The gentleman's time has expired.
The gentleman from Maryland, the late Mr. Van Hollen. [Laughter.]
Mr. VAN HOLLEN. Thank you, Mr. Chairman, and Mr. Attorney General, thank you for your testimony. As one of the newest Members of the Committee, it's, I guess, my privilege to be one of the people batting clean-up at the end here, but thank you for your testimony.
I actually want to pick up on a related issue which has to do with the GAO report that came out recently showing that a number of individuals on the Terrorist Watch List were able to go into gun shops and legally purchase weapons in this country. I just want to pursue that line of questioning for a minute, because as I understand it right now, if you're on the Terrorist Watch List, you're not able to board an aircraft. You're able to be detained at the airport and not allowed to board an aircraft, is that right?
Attorney General GONZALES. That is correct.
Page 117 PREV PAGE TOP OF DOC Mr. VAN HOLLEN. And the purpose of that, I assume, is to protect the public safety, is that right?
Attorney General GONZALES. That is correct.
Mr. VAN HOLLEN. All right. Does it make sense to you that we stop a person from boarding the airline in order to protect the public safety, that individual can turn around, get in their car, go to the local gun shop and buy 20 semi-automatic assault weapons? Does that make sense to you, Mr. Attorney General?
Attorney General GONZALES. I think that we should be doing everything we can to ensure that people that are, in fact, terrorists, shouldn't have weapons in this country, the truth of the matter is. But unless they are disabled from having a weapon under the statute, there's not much that we can do, other than maybe trying to get them out of the country or find a way to see if there's any kind of disability under the statute that would allow us to deny them a firearm.
And so, again, at the end of theI mean, we don't want terrorists to have firearms, but at the end of the day, we have to enforce the law. Unless they have a disability under the statute, then they're entitled to a weapon.
Mr. VAN HOLLEN. No, I thank you for that and I understand the law is the law and we have to enforce it. My question really is, would you be willing to work with Congress and do you think it's a good idea to try and change the law where somebody is legitimately on the Terrorist Watch List? I understand there are issues with respect to that, but if someone is determined to have been legitimately put on the Terrorist Watch List, would you not agreeI'm asking whether you would not agree that it doesn't make sense from a public safety point of view to allow that person to go to the gun shop and buy 20 semi-automatic assault weapons.
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Attorney General GONZALES. Well, what I can agree is that if you're a terrorist, you shouldn't have a weapon in this country, and so I do agree with you on that.
Mr. VAN HOLLEN. Let me ask you this, Mr. Attorney General. One of the issues that is raised is the quality of the Terrorist Watch List.
Attorney General GONZALES. Right.
Mr. VAN HOLLEN. What mechanism is in place today for an individual whose name has been put on that list to contest whether or not they should be legitimately put on that list? What do you have today to make sure that the quality of that list is actually good and people aren't wrongfully put on that list?
Attorney General GONZALES. That is a good question. I don't know the answer to that, but I'll be happy to get back to you on it.
Mr. VAN HOLLEN. It seems to me that there's been a lot of discussions with respect to the fact that the quality of the list may not be so good and, therefore, we can't necessarily use that to deny people their right to go purchase a handgun, and that's absolutely true, but it seems to me that somebody who's being denied access to an airplane, if they're wrongfully put on that list, it should be very clear to every American citizen who thinks they're wrongfully put on that list what mechanism procedure they have to get their name off.
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Attorney General GONZALES. I don't want the Committee to leave with the impression that we have a shabby Terrorist Watch List. Obviously, no one wants that. We all want the best list possible and we work very, very hard to make sure that the list is accurate. We get information from a variety of agencies who are looking at different threats. Say someone is concerned about terrorist financing, and so someone may end up on the Terrorist Watch List because of concerns about their support of terrorist activityfinancial support of terrorist activities.
So I say all of that sort of defending theI mean, there's been a great effort within the Administration to try to make the Terrorist Watch List a valuable tool and one that we can depend on. But it's a difficult issue and I look forward to working with you on possible legislation. I'd be happy to consider it.
Mr. VAN HOLLEN. Thank you, and Mr. Chairman, if I could just close making two points, to the extent that we can depend on it and it's a valuable tool and someone is on there because they pose a risk to public safety, it seems to me that the question of whether they should be allowed to go down to the local gun store and buy 20 handguns or semi-automatic or whatever weapons it may be is one that we need to change to the extent that they're legitimately on there.
And to the extent they're not legitimately on there, I would very much appreciate an answer to the question about how an American citizen goes about getting their name off it if they think they're wrongfully on it. It seems to me it's obviously a great unfair burden for a citizen to be placed on the Watch List without any mechanism that is familiar to the public for how they go about getting their name off of it.
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Attorney General GONZALES. I think the Watch List has been a valuable tool. I think it has been helpful in dealing with a terrorist threat. Obviously, there have been mistakes that have been made, but I look forward to working with you.
Chairman SENSENBRENNER. The time of the gentleman has expired.
General, let me say that I think this was an extremely valuable hearing in kicking off our review of the sunsetted provisions of the PATRIOT Act. You have done well.
Attorney General GONZALES. Thank you.
Chairman SENSENBRENNER. I hope your next invitation to come up here, whenever that may be, as a friendly invitation because these types of exchanges, I think, help clarify the issues, help do away with a lot of the hype that has come about as a result of this law in particular, and we look forward not only to working with you and the Department relative to this legislation, but also in doing oversight which makes you do your job better and the American public have the confidence that you're doing your job better.
Ms. JACKSON LEE. Mr. Chairman
Mr. CONYERS. Mr. Chairman
Chairman SENSENBRENNER. So thank you again for coming.
Page 121 PREV PAGE TOP OF DOC Ms. JACKSON LEE. Mr. Chairman, would you yield for a question?
Mr. CONYERS. Mr. Chairman?
Chairman SENSENBRENNER. The gentleman from Michigan.
Mr. CONYERS. I join in that thankfulness that you were here and have started this routine with us. It's very important. And I'd like unanimous consent to add in after my opening remarks ''Seeking the Truth from Justice'' from Laura Murphy, former Director of the American Civil Liberties Union.
Chairman SENSENBRENNER. Without objection.
Ms. JACKSON LEE. Mr. Chairman, could you yield for a question, please?
Chairman SENSENBRENNER. The gentlewoman from Texas.
Ms. JACKSON LEE. Thank you, Mr. Chairman. Will the record remain open or will we be able to submit questions for the record? I have a question about Dr. Yaha Ghoul, a thoracic surgeon who is in detention at this point.
Chairman SENSENBRENNER. The record will remain open relative to questions relative to the general oversight of the USA PATRIOT Act. I don't know if the letter the gentlewoman is referring to relates to the USA PATRIOT Act. If so, the record will remain open for that purpose. But on matters related to other than the PATRIOT Act, I think it is best to deal with that issue in another context.
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Ms. JACKSON LEE. I thank the Chairman, and I'd like to submit for the record ''On Liberty'' by John Stuart Mill, 1859. I'd like to submit that into the record.
Chairman SENSENBRENNER. I assume the copyright has expired on that, so without objection.
[The article of Mr. Mill follows in the Appendix]
Chairman SENSENBRENNER. The Committee stands adjourned.
Ms. JACKSON LEE. I thank the Chairman.
[Whereupon, at 3:27 p.m., the Subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
USA PATRIOT ACT: SUNSETS REPORT PREPARED BY THE U.S. DEPARTMENT OF JUSTICE
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CHAPTER I OF On Liberty by John Stuart Mill, submitted for the Record by the Honorable Sheila Jackson Lee