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21–023 PDF








MAY 3, 2005

Serial No. 109–20

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Printed for the use of the Committee on the Judiciary

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


F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
BOB INGLIS, South Carolina
MARK GREEN, Wisconsin
DARRELL ISSA, California
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JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California
ADAM SMITH, Washington

PHILIP G. KIKO, Chief of Staff-General Counsel
PERRY H. APELBAUM, Minority Chief Counsel
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Subcommittee on Crime, Terrorism, and Homeland Security

HOWARD COBLE, North Carolina, Chairman

MARK GREEN, Wisconsin

MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts

JAY APPERSON, Chief Counsel
ELIZABETH SOKUL, Special Counsel on Intelligence
and Homeland Security
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JASON CERVENAK, Full Committee Counsel
MICHAEL VOLKOV, Deputy Chief Counsel
BOBBY VASSAR, Minority Counsel


MAY 3, 2005

    The Honorable Howard Coble, a Representative in Congress from the State of North Carolina, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security

    The Honorable Robert C. Scott, a Representative in Congress from the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security


The Honorable Michael J. Sullivan, United States Attorney, District of Massachusetts
Oral Testimony
Prepared Statement

Mr. Chuck Rosenberg, Chief of Staff to Deputy Attorney General, U.S. Department of Justice
Oral Testimony
Prepared Statement

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Ms. Heather Mac Donald, John M. Olin Fellow, The Manhattan Institute for Policy Research
Oral Testimony
Prepared Statement

The Honorable Bob Barr, former Member of Congress, Atlanta, Georgia
Oral Testimony
Prepared Statement


Material Submitted for the Hearing Record

    Prepared Statement of the Honorable Robert C. Scott, a Representative in Congress from the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security

    Letter from the Honorable William E. Moschella, Assistant Attorney General, U.S. Department of Justice to the Honorable Arlen Specter

    Report from the Office of the Inspector General entitled ''Report to Congress on Implementation of Section 1001 of the USA PATRIOT Act,'' March 11, 2005

    Report from the U.S. Department of Justice entitled ''Delayed Notice Search Warrants: A Vital and Time-Honored Tool for Fighting Crime,'' September 2004

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    Letter from the Honorable William E. Moschella, Assistant Attorney General, U.S. Department of Justice to the Honorable Howard Coble

    Article submitted by Heather Mac Donald, John M. Olin Fellow, The Manhattan Institute for Policy Research, entitled ''Straight Talk on Homeland Security,'' City Journal (Summer 2003)


TUESDAY, MAY 3, 2005

House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
Washington, DC.

    The Subcommittee met, pursuant to notice, at 10 a.m., in Room 2141, Rayburn House Office Building, the Honorable Howard Coble (Chair of the Subcommittee) presiding.

    Mr. COBLE. Good morning, ladies and gentlemen. At the outset I will apologize. I just told Mr. Scott and Mr. Beckert I have fallen victim to the April-May pollen attack. So pardon my raspy, gravelly voice, but we'll try to get through it

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    Today the Subcommittee on Crime, Terrorism, and Homeland Security will hold a hearing on criminal authorities for surveillance and search warrants. We are examining three sections of the PATRIOT Act that are sunsetting, and one section that is not, but has become controversial. Sections 201 and 202 of the PATRIOT Act create new wiretap predicates. Wiretap predicates are serious crimes enumerated in the Federal Criminal Code, but fall under one of the limited circumstances for which Congress authorized the use of a wiretap or electric surveillance.

    Sections 201 and 202 in no way change the strict limitations on when wiretaps may be used, as Congress dictated in title III of the Omnibus Crime Control and Safe Streets Act of 1968. That Act outlines what is and what is not permissible with regard to wiretapping and electronic eavesdropping.

    Title III restrictions go beyond fourth amendment constitutional protections and include a statutory suppression rule to exclude evidence that was collected in violation of title III. Section 223 of the PATRIOT Act added additional safeguards against abuse by amending the Federal Criminal Code to provide for administrative discipline of Federal officers or employees, as well as for similar actions to be brought against the United States for damages by a person aggrieved by such illegal disclosures.

    Section 213 provides courts the discretion to delay notifying a suspect whose property is the target of a search. Some have deemed this section controversial, but I believe that any controversy has been caused by inaccurate information. I realize that my view may not be shared by my good friend Mr. Barr, and perhaps others, but nonetheless, I'm concerned with the level of rhetoric that has been disseminated about this section, which has been a long-standing, vital tool for law enforcement.
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    Many in the public sector may be shocked to know that section 213 does not create a new title search warrant; rather, it merely standardized the special circumstances upon which a court may authorize delayed notice to a target of a search. Because of alarmist rhetoric in many cases by some, the public also may not be aware that courts have been authorizing delayed notice for search warrants for several decades. In fact, this section does not affect the standard that requires a judge to find probable cause of criminal activity prior to issuing a search warrant.

    I would also like to note that the Administrative Office of the U.S. Courts found that in a 12-month period that ended in September of 2003, the Court, the Federal courts, handled 32,529 search warrants. While I don't have numbers for the same period for the number of times courts authorized delayed notice for those search warrants, I do have numbers for a similar duration of 14 months, between April of 2003 and July 2004. Over that period the number of times courts authorized delayed notice was 61. So 61 search warrants with delayed notice out of 32,000 plus comes to about, I think, .2 percent. These numbers are discussed in a Department of Justice April 4, 2005 letter, which, without objection, I would like to introduce into the record.

    Throughout these hearings many have argued that the sunset provision of the act has required the Department to be on its best behavior for implementing the PATRIOT Act. I would like to point out that this section, sunset, has been used very rarely, and the inspector general for the Department of Justice has not found any abuse of this section or any other sections of the PATRIOT Act in the six reports it has sent to the Congress. So even without a sunset allegedly forcing the Department to behave, section 213 has not been abused. The Government and Federal judges in whom the authority rests under the statute appear to have judiciously used this provision.
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    Having said this, I look forward to hearing testimony from our panel, and I am now pleased to recognize the distinguished gentleman from Virginia, the Ranking Member, Mr. Bobby Scott.

    Mr. SCOTT. Thank you, Mr. Chairman. And thank you for holding the hearing on these important sections.

    We're considering section 213 of the USA PATRIOT Act, the infamous delayed notice or ''sneak and peek'' authority extended under the act. This lets police secretly go into someone's home or place of business to look around for evidence and not necessarily seize anything. In addition to the observations, pictures or other recordings such as CDs or floppy disks can be taken, and they can record things off of your computer. Under ordinary circumstances, notice of the search would be given through the officers showing up at your door to conduct the search. With sneak and peek, notice is not given until sometime after the search, such as when an arrest or physical seizure of property has taken place. Even before section 213, courts allowed sneak and peek searches, with probable cause and reasonable circumstances justifying the delayed notice.

    The U.S. Supreme Court has not ruled on the sufficiency of sneak and peak warrants under the fourth amendment, but there have been several circuit court decisions, the second, fourth and ninth circuits, for example, and while these courts have not set a specific standard for such searches and notices, they have ruled that search and notice must be reasonable and should not exceed 7 days without additional reasonable foundation separate and apart from the original delay. Although this provision is not one of the sunsetted provisions under this PATRIOT Act, it is the provision of the act which has received the most congressional attention since its enactment.
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    Sneak and peak was not in the bill approved unanimously by this Committee in the weeks following 9/11, and during the last Congress the House actually passed by a wide margin an amendment to the Department of Justice appropriations denying the use of funds to implement any sneak and peek warrants. It did not pass the Senate, so it did not become law, but it did show by a wide margin that that amendment did pass the House.

    Sneak and peek warrants are anathema to our traditions of privacy and notice under the fourth amendment.

    Now, one of the problems with section 213 is that it does not set a time limit on how long the notice can be delayed. Another problem is this catch-all provision that allows the court to approve a sneak and peak warrant without there being really dire or exigent circumstances.

    Under the court-approved sneak and peak warrants under section 213—under sneak and peak warrants before section 213, the warrants were approved only where it was deemed necessary to prevent such things as endangering life or physical safety, flight from prosecution, or destruction of evidence. Under section 213, an addition to these circumstances, a sneak and peak warrant can be issued to prevent a case from being, quote, otherwise seriously jeopardized or a trial from being unduly delayed.

    Within the 155 sneak and peak warrants the Department of Justice concedes to have issued under section 213, recent information reveals that 92 of them have been under this catch-all provision. Of course, when the Department talks about section 213, as with all PATRIOT Act provisions, it talks about how important it is to protect us from terrorism. Yet it is clear that these extraordinary powers, such as sneak and peek, are used for more than just terrorism cases, and just how much more is one of the issues we need to explore. With this broad use, including the garden variety crimes, makes it even more imperative that we keep a close watch on these provisions.
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    So, Mr. Chairman, this is another situation where if we don't eliminate the extraordinary power for Government to pry into our private lives and affairs, we certainly ought to make sure that we structure that authority to ensure it is not the subject of abuse, or that the safeguards don't degrade over time. So I look forward to the testimony of our witnesses to see how we might accomplish that.

    Mr. COBLE. I thank the gentleman from Virginia.

    Lady and gentlemen, it is the practice of the Subcommittee to swear in all witnesses appearing before it, so if you all would please stand and raise your right hands.

    [Witnesses sworn.]

    Mr. COBLE. Let the record show that each of the witnesses answered in the affirmative.

    We are blessed today, ladies and gentlemen, with a very fine panel. Our first witness is Mr. Michael J. Sullivan, United States Attorney for the District of Massachusetts. Mr. Sullivan has been active in instituting task forces that enable the Federal Government, along with State and local governments, to combat potential terrorist attacks.

    Prior to serving as U.S. Attorney, Mr. Sullivan was a District Attorney of Plymouth County, and was a member of the Massachusetts House of Representatives. He is a graduate of Boston College and the Suffolk University School of Law.
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    Our second witness is Mr. Chuck Rosenberg, Chief of Staff to Deputy Attorney General James B. Comey. Mr. Rosenberg previously served as counsel to Attorney General John Ashcroft, and prior to that as counsel to FBI Director Mueller. Prior to joining the FBI, Mr. Rosenberg was an Assistant District Attorney. He is an alumnus of the Tufts University, Harvard University and the University of Virginia School of Law.

    Our next witness is Ms. Heather Mac Donald, a John M. Olin Fellow at the Manhattan Institute and a contributing editor to City Journal. Prior to joining the Manhattan Institute, Ms. Mac Donald clerked for the Honorable Stephen Reinhardt, U.S. Court of Appeals for the Ninth Circuit, served as an attorney-advisor in the Office of the General Counsel of the U.S. Environmental Protection Agency, and served as a volunteer with the Natural Resource Defense Fund in New York City.

    Ms. Mac Donald received her B.A. in English from Yale University, graduated summa cum laude with a Mellon fellowship to Cambridge University, where she earned an M.A. in English, and studied in Italy through a college study grant. She also is a graduate of Stanford University School of Law.

    Our final witness is Mr. Bob Barr, the Honorable Bob Barr, represented the Seventh District of Georgia at the U.S. House of Representatives, and is an alum of this Committee. Good to have you back on the Hill, Bob.

    Mr. BARR. Thank you, Mr. Chairman.

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    Mr. COBLE. He is the 21st Century Liberties Chair for Freedom and Privacy at the American Conservative Union, and provides advice to several organizations, including the ACLU.

    Mr. Barr served as the United States Attorney for the Northern District of Georgia from 1986 to 1990, and he was also an official with the CIA and practiced law for many years. Now I don't have this in my statement, Mr. Barr, but if my memory serves correctly, you did your undergraduate work at USC, and was awarded a law degree from Georgetown.

    Mr. BARR. The real USC.

    Mr. COBLE. I was going to say in my district USC would be the University of South Carolina, but in your case it is, indeed, Southern California.

    Now I have not talked to Mr. Delahunt. Mr. Delahunt, would you like to introduce Mr. Sullivan furthermore?

    Mr. DELAHUNT. Of course. I had the pleasure to serve with Mr. Sullivan for—I think our terms overlapped as district attorneys in Massachusetts for maybe a year or two, and he was coming along just fine, Mr. Coble. And then, of course, he won the approval of the President and has served well in the U.S. Attorney's Office. And I want to welcome you, Mike, to this hearing.

    And I also have to acknowledge our former colleague and friend Bob Barr, who we served together for—how many years was it, Bob?
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    Mr. BARR. It seems like about 40 or 50, but a little bit less than that.

    Mr. DELAHUNT. That's my memory, too. While we had some disagreements in terms of a number of issues, we also shared, you know, a consensus on some significant issues, particularly in the course of the Committee's proceedings dealing with the PATRIOT Act. And I think it really reflected well on the full Committee that at least the first version of the PATRIOT Act—and Bob Barr had much to do with that final result in a piece of legislation I think we all took great pride in. And I remember, of course, serving with Bob Barr during the impeachment proceedings; again, we had disagreements, but he is a man of keen intellect, and I consider Bob a friend.

    Mr. COBLE. Thank you, Mr. Delahunt.

    Mr. Delahunt knows this, and this has absolutely nothing to do with the PATRIOT Act, but I am a long-time Celtic and Patriot fan, however, I did not cheer for the Patriots when they beat the Carolina Panthers in the Super Bowl several years ago.

    Mr. SCOTT. Mr. Chairman, I would like to say a word about our former colleague, too, because when we went through the PATRIOT Act originally, we had some late nights—many of us worked late nights to try to get that into a form that we could come to some agreement on, and Mr. Barr was one of those that spent as many late nights and long meetings as anybody else. And as the gentleman from Massachusetts has indicated, we put together a package that passed this Committee unanimously, and the gentleman from Massachusetts has also put that in historic context. That was just a few months after the impeachment process where this Committee in some view did not distinguish itself in terms of partisan cooperation, but coming up with a version of the USA PATRIOT Act that passed this Committee unanimously, I think, was quite a feat. Unfortunately, somewhere been the Committee and the floor our good work got lost, but Mr. Barr was one of those that worked long and hard to try to come together.
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    Mr. COBLE. I want the record to show that I earlier told Mr. Barr that we miss him on the Hill—I don't want to be the only guy here not praising Mr. Barr.

    Folks, it's good to have you all with us. We also have been joined by the distinguished gentleman from Ohio Mr. Chabot. Good to have you here with us today.

    Mr. CHABOT. Thank you, Mr. Chairman.

    Mr. COBLE. Folks, we try on this Subcommittee to operate under the 5-minute rule, as you all have been previously notified. The panels that appear before you all, when the amber light appears, the ice on which you are skating is becoming thin, you have a minute to go; and then when the red light appears, your time has expired. So if you could stay within the 5-minute time frame, we would be appreciative.

    Mr. Sullivan, why don't you kick it off.


    Mr. SULLIVAN. Thank you very much, Mr. Chairman. And thank you for your support of both the New England Patriots and the Boston Celtics. I want the record to reflect I'm also a fan of the Patriots and the Celtics and the Boston Red Sox, and certainly the Boston Bruins.

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    Mr. Chairman, Ranking Member Scott, Members of the Subcommittee, my good friend Mr. Delahunt, I want to thank you for the invitation to appear before you today to discuss several important provisions of the USA PATRIOT Act. I want to address sections 201 and 202 of the act which provide law enforcement with the ability to use preexisting wiretap authorities to investigate certain crimes that terrorists are likely to commit, such as those involving weapons of mass destruction, material support to terrorists and foreign terrorist organizations, and important cybercrime and cyberterrorism offenses. I will also address section 223.

    All three of these sections are currently scheduled to sunset at the end of 2005. If section 201 and 202 are allowed to sunset, we will lose valuable tools that allow law enforcement to investigate a full range of terrorism-related crimes. Paradoxically, these tools would be unavailable in criminal investigations and offenses involving chemical weapons, cyberterrorism, and weapons of mass destruction, but would be available to investigate traditional crimes such as drug offenses, mail fraud and passport fraud. This would be a senseless approach because it's absolutely vital that the Justice Department have all the appropriate tools at its disposal to investigate terrorism crimes.

    I'm here to ask you to make permanent sections 201 and 202, and also 223 of the USA PATRIOT Act.

    In the criminal law enforcement context, Federal investigators have long been able to obtain court orders to intercept wire communications and oral communications to investigate numerous criminal offenses listed in the Federal wiretap statute. The list of offenses include traditional crimes including drug crimes, mail fraud and passport fraud. Prior to the enactment of the USA PATRIOT Act, however, certain extremely serious crimes that terrorists are likely to commit were not among them. This prevented law enforcement authorities from using many forms of electronic surveillance to investigate these criminal offenses. As a result, law enforcement could obtain, under appropriate circumstances, a court order to intercept foreign communications in a passport fraud investigation, but not a criminal investigation of terrorists using chemical weapons or murdering a United States national abroad.
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    Section 201 of the USA PATRIOT Act ended this anomaly in the law by amending the criminal wiretap statute when Congress added the following terrorism-related crimes to the list of wiretap predicates: chemical weapons offenses, murders and other acts of violence against United States nationals occurring outside of the United States, the use of weapons of mass destruction, violent acts of terrorism transcending national borders, financing transactions with countries that support terrorism, and material support for terrorists and terrorist organizations. There are also two other offenses that Congress subsequently added to the list.

    Section 201 of the USA PATRIOT Act preserved all of the preexisting standards in the wiretap statute.

    Just as many traditional terrorism-related offenses were not listed as wiretap predicates before the passage of the USA PATRIOT Act, neither were many important cybercrime or cyberterrorism offenses, offenses concerning which law enforcement must remain vigilant and prepared in the 21st century. Section 202 of the USA PATRIOT Act eliminated this anomaly by allowing law enforcement to use preexisting wiretap authorities to investigate felony offenses under the Computer Fraud and Abuse Act, and brought the criminal code up to date with modern technology.

    As with section 201, section 202 of the USA PATRIOT Act preserved all the preexisting standards in the wiretap statute. If section 202 were allowed to expire, then investigators will not be able to obtain wiretap orders to investigate many important cybercrime and cyberterrorism offenses, resulting in a criminal code that is dangerously out of date compared to modern technology.
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    As for section 223, a person now harmed by willful violation of the criminal wiretap statute or improper use and disclosure of information contained in the Foreign Intelligence Surveillance Act may now file a claim against the United States for at least $10,000 in damages, plus costs. Most everyone who has reviewed this section agrees it is a valuable tool and should be renewed.

    I want to thank you again for the opportunity to discuss section 201, 202 and 223 of the USA PATRIOT Act. These provisions are critical to the Department's efforts to protect Americans from terrorism. From my experience as a prosecutor, I know firsthand how valuable wiretaps are to investigations and prosecution of serious criminal offenses. There is no logical reason why these valuable tools should not be extended to law enforcement to protect our citizens from terrorism-related offenses as well.

    I would be happy to answer any questions you may have.

    Mr. COBLE. Thank you, Mr. Sullivan.

    [The prepared statement of Mr. Sullivan follows:]


    Mr. COBLE. And Mr. Rosenberg.

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    Mr. ROSENBERG. Thank you, Chairman Coble, Ranking Member Scott, Members of the Subcommittee, Mr. Delahunt and Mr. Chabot. It's a pleasure to be here today, and I appreciate the opportunity to speak to the Subcommittee about what I believe to be a very ordinary tool that has been gravely misunderstood and misperceived. I speak of section 213 of the PATRIOT Act, which codified and gave us a single uniform national standard for the execution of delayed notification searches.

    Delayed notification searches are nothing new. I said they're rather ordinary; I should also say they're rather old, we've had them for decades. The authority to execute delayed notification searches dates back many, many years. Implicitly, a Supreme Court case in 1967, Katz v. United States, and more concretely, to a 1979 Supreme Court case which recognized that the fourth amendment does not require in all instances immediate notification of a search.

    In the wake of that 1979 Supreme Court case, circuit courts throughout the country, in the second, in the fourth and the ninth circuit, had slightly varying standards on how you would obtain a delayed notification search, what was required, and how long the period of delay would be. And what this Congress gave us in section 213 again was a single standard, so there was uniformity through the country.

    Let me clear up one large misperception. Under the fourth amendment, to execute a search warrant a Federal prosecutor, an agent, had to demonstrate to the satisfaction of a Federal judge probable cause; in other words, probable cause that the search would yield fruits of a crime, evidence of a crime. That was true before the PATRIOT Act, it is true now; nothing about the PATRIOT Act or section 213 changed that at all.
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    As well, prior to the PATRIOT Act, a Federal judge had to authorize a search warrant; whether it was with delayed notice or without, regardless, a Federal judge had to authorize it. That was true before the PATRIOT Act, that's true now. Nothing about that has changed.

    To delay notice, however, you require something more, probable cause for the search, but for the delay you need to show reasonable cause that if you don't delay notification, that some adverse result would flow from that. There are five in the statute: that a life would be endangered, that there would be flight from prosecution, that evidence might be destroyed or tampered with, that potential witnesses could be intimidated, or that an investigation could be seriously jeopardized.

    In all cases we need to demonstrate that to a Federal judge, and she needs to be satisfied that we have reasonable cause to delay the search. So without that, we can't delay. And that's what I want to be very clear about, Mr. Chairman, we must have permission of the court to act not just for the underlying search, but for the delay as well.

    In all cases, in all cases, we still give notice, we must. It's required under the law. It's just a question of whether or not we may be able to delay that notice for some reasonable period of time.

    We do not use this authority very often. Out of every 1,000 searches—and this is a rough average—we use it twice. That's about .2 percent. We use it when we need it. And, I submit, we use it judiciously and smartly and carefully, and, again, only with the authorization of a court. Nothing in the PATRIOT Act, nothing in section 213 removes the probable cause requirement. Nothing in the PATRIOT Act removes the requirement that a judge give us permission to delay notice.
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    I have a little bit of time left, but I don't want to use it all now. I will pass it along. I appreciate the opportunity to speak. I am happy to answer any questions you may have.

    [The prepared statement of Mr. Rosenberg follows:]






    Mr. COBLE. Well, you and Mr. Sullivan have put Ms. Mac Donald and Mr. Barr under a bright light because you both beat the red light.

    Ms. Mac Donald, you're on.


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    Ms. MAC DONALD. I'm going to be lean and mean, Mr. Chairman.

    Thank you very much for inviting me today, I am honored to be testifying before you.

    The PATRIOT Act has been subject to the most successful misinformation campaign in recent memory. From the day of its passage, it's been portrayed as a power grab by an Administration intent on trampling on civil rights. As I have debated the act across the country, I've been amazed by the amount of ignorance out there about it, and therefore I applaud the Committee for taking the time to set the record straight.

    Now, I have observed four rhetorical strategies used to discredit the act, and I want to discuss them in the context of section 213, the delayed notification provision, because if you can discredit them in those—in that context, you have the key for undermining the entire anti-PATRIOT propaganda campaign.

    The first strategy used by opponents of the act is to conceal legal precedent. Section 213, as we heard, allows the Government to delay notice of the search if notice would result in witness intimidation, evidence tampering or other adverse results. The section has been universally portrayed as a radical new power that will unleash Government tyranny. The gall of this claim astounds me, because, as Mr. Rosenberg explained, section 213 merely codifies two decades of judicial precedent. If delayed notice were the threat that it were made out to be, we would have heard about abuses by now. But as with every other section of the PATRIOT Act, the critics have been unable to bring forth a single example of abuse over not just 4 years of use, but two decades of delayed notice authority.
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    The second strategy used by PATRIOT Act opponents is what I call ''hiding the judge.'' We never learn from the section 213 opponents that under it the Government can investigate a suspect and delay notice only if a judge gives permission. It's a Federal judge who decides whether delay is reasonable, not a law enforcement agent.

    The third strategy against the PATRIOT Act, amending the statute. PATRIOT Act critics invariably imply under section 213 the Government can permanently conceal that a search has occurred. This charge rewrites the section which says that delay can only be temporary for a reasonable period of time.

    Ultimately I've discovered what drives most critics of the act is a deep suspicion of Government secrecy in criminal or terror investigations. This is the fourth strategy, rejecting secrecy. Opponents of section 213 apparently believe that if the Government wants to search Muhammad Atta's hard drive, it should show up at his door and hand him a search warrant and say, ''Oh, Mr. Atta, we would like permission, please, to search your computer.'' This line of attack shows a complete obliviousness to the distinction between an after-the-fact criminal investigation and preemptive antiterror investigations.

    In passing the PATRIOT Act, Congress recognized the urgency of moving law enforcement from a reactive to a preventative mode. Speed and secrecy are the essence of preventing terrorist attacks, and, indeed, in many criminal investigations as well.

    There is one final fallacy that I want to quickly allude to which is being suspended in time. For critics of the PATRIOT Act, it is always 1968 when J. Edgar Hoover was indeed trampling on civil rights; but this line of reasoning ignores the massive sea change in law enforcement that has occurred since then. The FBI has internalized the rule of law and the norms of restraint. The biggest challenge we had before 9/11 was persuading our agents to use this power that was available to them.
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    In conclusion, section 213, like the rest of the PATRIOT Act, was a reasonable response to the new threat of catastrophic terrorism. It has not led to a single abuse of civil rights, and it should be renewed. Thank you.

    Mr. COBLE. Thank you, Ms. Mac Donald.

    [The prepared statement of Ms. Mac Donald follows:]


    Thank you, Mr. Chairman and members of the Committee. My name is Heather Mac Donald. I am a senior fellow at the Manhattan Institute for Policy Research, a think tank in New York City. I have written extensively on homeland security for the Washington Post, the Wall Street Journal, the Los Angeles Times, and City Journal, among other publications. I appreciate the opportunity to testify today on this important topic.

    The most powerful weapon against terrorism is intelligence. The United States is too big a country to rely on physical barriers against attack; the most certain defense is advanced knowledge of terrorist plans.

    In recognition of this fact, Congress amended existing surveillance powers after 9/11 to ready them for the terrorist challenge. The signal achievement of these amendments, known as the Patriot Act, was to tear down the regulatory ''wall'' that had prevented anti-terrorism intelligence agents and anti-terrorism criminal agents from sharing information. The Patriot Act made other necessary changes to surveillance law as well: it extended to terrorism investigators powers long enjoyed by criminal investigators, and it brought surveillance law into the 21st century of cell phones and e-mail. Where the act modestly expands the government's authority, it does so for one reason only: to make sure that the government can gather enough information to prevent terrorism, not just prosecute it after the fact.
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    Each modest expansion of government power in the Patriot Act is accompanied by the most effective restraint in our constitutional system: judicial review. The act carefully preserves the traditional checks and balances that safeguard civil liberties; four years after its enactment, after constant monitoring by the Justice Department's Inspector General and a host of hostile advocacy groups, not a single abuse of government power has been found or even alleged.

    This record of restraint is not the picture of the act most often presented in the media or by government critics, however. The Patriot Act has been the target of the most successful disinformation campaign in recent memory. From the day of its passage, law enforcement critics have portrayed it as an unprecedented power grab by an administration intent on trampling civil rights.

    As lie after lie accumulated, the administration failed utterly to respond. As a result, the public is wholly ignorant about what the law actually does. Hundreds of city councils have passed resolutions against the act; it is a safe bet that none of them know what is in it. The Committee is to be congratulated for taking the time to get the truth out.

    Though the charges against the Patriot Act have been dazzling in their number, they boil down to four main strategies. This morning, I would like to dissect those strategies, with particular reference to the most controversial section of the act: section 213. Section 213 allows the government to delay notice of a search, something criminal investigators have been allowed to do for decades. Discredit the anti-Patriot Act strategies against section 213, and you have the key for discrediting them in every other context.
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    Here's how section 213 works: Let's say the FBI wants to plumb Mohammad Atta's hard drive for evidence of a nascent terror attack. If a federal agent shows up at his door and says: ''Mr. Atta, we have a search warrant for your hard drive, which we suspect contains information about the structure and purpose of your cell,'' Atta will tell his cronies back in Hamburg and Afghanistan: ''They're on to us; destroy your files—and the infidel who sold us out.'' The government's ability to plot out that branch of Al Qaeda is finished.

    To avoid torpedoing preemptive investigations, Section 213 lets the government ask a judge for permission to delay notice of a search. The judge can grant the request only if he finds ''reasonable cause'' to believe that notice would result in death or physical harm to an individual, flight from prosecution, evidence tampering, witness intimidation, or other serious jeopardy to an investigation. In the case of Mohammad Atta's hard drive, the judge will likely allow a delay, since notice could seriously jeopardize the investigation, and would likely result in evidence tampering or witness intimidation.

    The government can delay notifying the subject only for a ''reasonable'' period of time; eventually officials must tell Atta that they inspected his hard drive.

    Section 213 carefully balances traditional expectations of notice and the imperatives of preemptive terror and crime investigations. That's not how left- and right-wing libertarians have portrayed it, however. They present Section 213, which they have dubbed ''sneak-and-peek,'' as one of the most outrageous new powers seized by former Attorney General John Ashcroft. The ACLU's fund-raising pitches warn: ''Now, the government can secretly enter your home while you're away . . . rifle through your personal belongings . . . download your computer files . . . and seize any items at will. . . . And, because of the Patriot Act, you may never know what the government has done.''
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    Notice the ACLU's ''Now.'' Like every anti-213 crusader, the ACLU implies that section 213 is a radical new power. This charge is a rank fabrication. For decades, federal courts have allowed investigators to delay notice of a search in drug cases, organized crime, and child pornography, for the same reasons as in section 213. Indeed, the ability to delay notice of a search is an almost inevitable concomitant of investigations that seek to stop a crime before it happens. But the lack of precise uniformity in the court rulings on delayed notice slowed down complex national terror cases. Section 213 codified existing case law under a single national standard to streamline detective work; it did not create new authority regarding searches. Those critics who believe that the target of a search should always be notified prior to the search, regardless of the risks, should have raised their complaints decades ago—to the Supreme Court and the many other courts who have recognized the necessity of a delay option.

    Critics of Section 213 raise the spectre of widespread surveillance abuse should the government be allowed to delay notice. FBI agents will be rummaging around the effects of law-abiding citizens on mere whim, even stealing from them, allege the anti-Patriot propagandists. But the government has had the delayed notice power for decades, and the anti-Patriot demagogues have not brought forward a single case of abuse under delayed notice case law. Their argument against Section 213 remains purely speculative: It could be abused. But there's no need to speculate; the historical record refutes the claim.


    The most pervasive tactic used against the Patriot Act is to conceal its judicial review provisions.
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    The cascades of anti-section 213 vitriol contain not one mention of the fact that the FBI can only delay notice of a search pursuant to judicial approval. It is a federal judge who decides whether a delay is reasonable, not law enforcement officials. And before a government agent can even seek to delay notice of a search, he must already have proven to a judge that he has probable cause to conduct the search in the first place.

    But the opponents suggest that under section 213, the government can unilaterally and for the most nefarious of purposes decide to conceal its investigative activities. Indeed, the ACLU implies that federal investigators can not only unilaterally delay notice, but can choose what and whether to search, without any judicial oversight: ''Now, the government can . . . seize any items [from your home] at will,'' it blares. But section 213 allows a warrant to issue only if a judge finds a ''reasonable necessity'' for it—the executive's arbitrary ''will'' has nothing to do with it. This is hardly a recipe for lawless executive behavior—unless the anti-Patriot forces are also alleging that the federal judiciary is determined to violate citizens rights. If that's what they mean, they should come out and say it.


    Anti-Patriot lore has it that section 213 allows the government to permanently conceal a search. The section ''allows the government to conduct secret searches without notification,'' cries Richard Leone, president of the Century Foundation and editor of The War on Our Freedoms: Civil Liberties in an Age of Terrorism. This conceit rewrites the section, which provides only for a delay of notice, not its cancellation. A warrant issued under section 213 must explicitly require notice after a ''reasonable'' period of time. This key feature of the section is completely suppressed by the critics.
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    Many of the attacks on the Patriot Act emanate from a single source: the critics do not believe that the government should ever act in secret. Recipients of document production orders in terror investigations—whether Section 215 orders or national security letters under the 1986 Electronic Communications Privacy Act—should be able to publicize the government's request, say the critics. If intelligence agents want to search a suspected cell's apartment, they should inform the cell members in advance to give them an opportunity to challenge the search. Time and again, law enforcement critics disparage the Foreign Intelligence Surveillance Court, because its proceedings are closed to the public.

    This transparent approach may satisfy those on the left and right who believe that the American people have no greater enemy than their own government, but it fails to answer the major question: how would it possibly be effective in protecting the country? The Patriot Act critics fail to grasp the distinction between the prosecution of an already committed crime, for which probable cause and publicity requirements were crafted, and the effort to preempt a catastrophic attack on American soil before it happens. For preemptive investigations, secrecy is of the essence. Opponents of the Patriot Act have never explained how they think the government can track down the web of Islamist activity in public. Given the fact that section 213 and other sections are carefully circumscribed with judicial checks and balances, it is in fact the secrecy that they allow that most riles the opponents.

    The recent history of government intelligence-gathering belies the notion that any government surveillance power sets us on a slippery slope to tyranny. There is a slippery-slope problem in terror investigations—but it runs the other way. Since the 1970s, libertarians of all political stripes have piled restriction after restriction on intelligence-gathering, even preventing two anti-terror FBI agents in the same office from collaborating on a case if one was an ''intelligence'' investigator and the other a ''criminal'' investigator. By the late '90s, the bureau worried more about avoiding a pseudo-civil liberties scandal than about preventing a terror attack. No one demanding the ever-more Byzantine protections against hypothetical abuse asked whether they were exacting a cost in public safety. We know now that they were.
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    The libertarian certainty about looming government abuse is a healthy instinct; it animates the Constitution. But critics of the Patriot Act and other anti-terror authorities ignore the sea change in law enforcement culture over the last several decades. For privacy fanatics, it's always 1968, when J. Edgar Hoover's FBI was voraciously surveilling political activists with no check on its power. That FBI is dead and gone. In its place arose a risk-averse and overwhelmingly law-abiding Bureau, that has internalized the norms of restraint and respect for privacy.

    This respect for the law now characterizes intelligence agencies across the board. Lieutenant General Michael V. Hayden, the nominee for Principal Deputy Director of National Intelligence, told the Senate Select Committee on April 14 that the challenge for supervisors in the National Security Agency was persuading analysts to use all of their legal powers, not to pull analysts back from an abuse of those powers.

    It is because of this sea-change in law enforcement culture that Patriot Act critics cannot point to a single abuse of the act over the last four years, and why they are always left to argue in the hypothetical.

    In conclusion, the Patriot Act is a balanced updating of surveillance authority in light of the new reality of catastrophic terrorism. It corrects anachronisms in law enforcement powers, whereby health care fraud investigators, for example, enjoyed greater ability to gather evidence than Al Qaeda intelligence squads. It created no novel powers, but built on existing authorities within the context of constitutional checks and balances. It protects civil liberties while making sure that intelligence analysts can get the information they need to protect the country. The law should be reenacted.
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    Mr. COBLE. Mr. Barr.


    Mr. BARR. Thank you very much, Mr. Chairman. And the fact that you're here today, despite some medical problems, is a very loud tribute to your concern for the Constitution and for open and objective and extensive debate on important constitutional issues such as those included in these sections in the USA PATRIOT Act. And I personally very much appreciate your being here and holding this hearing, as well as the other Members of the Committee. And, I appreciate very much their very kind words for my former service on this very Subcommittee that I consider one of the high points in my public career. I very much appreciate them being here today and conducting these hearings.

    I do have, Mr. Chairman, a fairly extensive set of written remarks which I have sent to the Subcommittee, and ask that they be included in the record of these proceedings.

    Mr. COBLE. Without objection.

    Mr. BARR. What I'd like to do in the few minutes allowable for opening statements, Mr. Chairman, is put this in historical context, do away with some of the hyperbole and misplaced facts of the prior witness, and let the Subcommittee know what it is that I and a number of others from across the ideological spectrum, who care just as much as all of the witnesses here today and as Members of this Subcommittee about the Constitution, exactly what it is that we're proposing and what we're not proposing.
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    The issue, Mr. Chairman, of notice for searches goes back long before the last couple of decades; it goes back even long before our own Constitution, including its Bill of Rights, was adopted. It goes back at least 300 years before our Constitution. The notice that—or the principle that notice should be given before the sovereign could invade a man's castle, in the words of James Otis, was something very sacrosanct, a notion that the privacy of that dwelling—and the notion that before that the Government could invade that dwelling, or later that business, and gather evidence against that or another person without giving notice was very much important and I think is engrained in the fourth amendment.

    Indeed, no less a constitutional scholar than Justice Clarence Thomas recognized recently that the notice provision is indeed an important underpinning of the reasonableness basis for the fourth amendment.

    So the notion that we're talking about some radical concept here that would harm our Nation when we're talking about the norm being notice is not radical at all; it is very consistent with a long history both of the philosophy underlying our Bill of Rights as well as judicial interpretations thereof.

    The courts, as has been correctly stated by prior witnesses, have never held that noticeless searches are per se okay. Quite the contrary. In the two instances in which courts of appeal, the second and ninth circuit, have ruled on the issue of noticeless searches, they simply address the issue of the reasonableness of the delay in the notice. And indeed, the Supreme Court has not ruled on this issue. In the Delia case, 1979, that was simply a case not involving a search for or a seizure of evidence, but simply that in the case where the Government wished to properly place a listening device, a bug, in a location, it made no sense for the Government to announce that it was doing that. That's very different from a search and seizure of evidence.
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    What exactly is it that the USA PATRIOT Act did in its section 213? For the very first time in our Nation's history, it established a legal basis on which the Government could, in defined circumstances, execute a warrantless search, a so-called sneak and peek search. I, and most others who find some fault with that provision, don't contest that basic premise. Yes, there are instances in which the Government needs to conduct a search without providing contemporaneous notice; but we do believe that those circumstances ought to be very carefully limited to ensure that they remain very much, both in principle and in practice, not the norm, but the exception to the general rule. And we also believe that there needs to be defined limitations in terms of time for the execution of noticeless searches and seizures of evidence.

    Therefore, what we are proposing, because section 213 is deficient in both of those two areas—it provides no definitive endpoint for a warrant noticeless search, and it provides a sort of general catch-all phrase that to deny the Government the use of a noticeless search would unduly delay the trial—that's not an appropriate constitutional basis on which to take away that important right for notice, Mr. Chairman. Therefore, what we are proposing is not the preposterous hypothetical that the previous witness indicated of having to tell Muhammad Atta that the Government is there to look at his hard drive. Nobody reasonably is proposing that, and the organizations with which I work are not. What we are simply doing, Mr. Chairman, is taking the existing framework in section 213 and providing a change in only two areas, one, a definitive endpoint for the noticeless search, with extensions; and secondly—and this is most important, I think, Mr. Chairman—I apologize for going on just slightly longer than the time, but this is most important—we clearly recognize that in those instances in which to deny the Government the ability to conduct a noticeless search would seriously harm the national security, yes, the Government ought to be able to proceed. And the Safe Act provision, which we commend to this Subcommittee and which some Members, Mr. Conyers and Mr. Flake, I believe, are already cosponsors, does that.
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    It does not take away, we are not proposing to take away, the section 213 authority, we are simply proposing that there be some definitive limitations, and that the general catch-all phrase be limited so that it clearly allows, in national security cases, but doesn't become simply a bureaucratic tool for the Government to use.

    Mr. COBLE. I thank the gentleman.

    [The prepared statement of Mr. Barr follows:]


    Chairman Coble, Ranking Member Scott, Members of the Subcommittee, thank you again for inviting me to testify on the PATRIOT Act. You deserve applause for your oversight today.

    The results of the debate over the extension of the PATRIOT Act's more intrusive provisions will define this Congress in our Nation's history. Will Congress correct some of the provisions that were hastily passed just days after the tragic attacks of 9/11 and bring the statute back in line with the command our nation's charter, our Constitution? Will Congress adopt safeguards to properly focus our law enforcement efforts on terrorists rather than ordinary Americans?

    I am here today because I am confident that, working together, we can do just that and honor both the letter and the spirit of our Fourth Amendment freedoms by bringing the PATRIOT Act back in line with the Constitution.
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    My name is Bob Barr. From 1995 to 2003, I had the honor to represent Georgia's Seventh District in the United States House of Representatives, serving that entire period with many of you on the House Judiciary Committee.

    From 1986 to 1990, I served as the United States Attorney for the Northern District of Georgia after being nominated by President Ronald Reagan, and was thereafter the president of the Southeastern Legal Foundation. For much of the 1970s, I was an official with the CIA.

    I currently serve as CEO and President of Liberty Strategies, LLC, and Of Counsel with the Law Offices of Edwin Marger. I also hold the 21st Century Liberties Chair for Freedom and Privacy at the American Conservative Union, consult on privacy issues with the American Civil Liberties Union, and am a board member of the National Rifle Association.

    I am also the Chairman of a new network of primarily conservative organizations called Patriots to Restore Checks and Balances, which includes the American Conservative Union, Eagle Forum, Americans for Tax Reform, the American Civil Liberties Union, Gun Owners of America, the Second Amendment Foundation, the Libertarian Party, the Association of American Physicians and Surgeons, and the Free Congress Foundation.

    You have asked me to testify today about sections 201, 202, 223, and 213 of the PATRIOT Act. I will focus the bulk of this testimony on section 213, the ''sneak and peek'' provision, and reserve some brief comments on the other provisions at the end of this written statement.
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    Section 213 of the PATRIOT Act authorizes ''sneak and peek,'' or ''delayed notice,'' search warrants in all criminal cases—without limitation to cases involving terrorism or a foreign agents—where the federal government says notice of the search warrant would result in destruction of evidence, the endangerment of an individual's life or physical safety, flight from prosecution, intimidation of a witness, or serious jeopardy to a criminal investigation. The Act sets no limit on the length of time such a search of a person's home or business can be kept secret. Section 213 is not subject to sunset this year but should be amended and should be given a new sunset as amended, if it is not repealed.

    I have grave concerns about covert searches of people's homes or businesses in general and about the design of this statute in particular. I would hope the Members of the Judiciary Committee would agree with me on one fundamental premise of American law. The idea of strangers, including government agents, secretly entering the privacy of our homes and examining our personal possessions is a threat to the fundamental freedoms our Fourth Amendment was written to protect.

    Secret searches of American homes and businesses must not be allowed to become routine. They must be closely circumscribed. Although one might imagine a rare circumstance where a short delay in notice might be compelling and even pass scrutiny under the Fourth Amendment, secret searches should not be allowed to become a garden-variety tool of law enforcement. The PATRIOT Act, however, permanently enshrined secret searches of American homes and businesses in our law under the guise of anti-terrorism efforts.

    As members of the House Judiciary Committee, you know well that the House Judiciary Committee's original marked-up version of the PATRIOT Act did not include statutory authority for secret criminal searches, although the Administration had asked for it. The ''sneak-and-peek'' provision was imposed on you by the Senate at the last minute in a substitution of the bill this Committee produced. Respectfully, I believe this addition to the bill was a serious mistake, but there was no time then to correct it. There is time now.
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    Giving federal law enforcement statutory authority for secret criminal search warrants in ordinary criminal cases has nothing to do with ''Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism,'' as the PATRIOT Act was pitched to the American people. We all know that. As the American people have come to understand that, they too have expressed strong reservations about the use of such extraordinarily intrusive and secretive powers, especially where such searches are not used to obstruct terrorist attacks.

    If Congress chooses to continue to give statutory authority for these covert-entry, delayed-notification searches, they should be carefully limited to ensure that what should be the rarest of exceptions does not become the rule. The PATRIOT Act, however, has inadequate controls. And, even though the sneak and peek authority is not set to sunset by the end of the year, I urge you to support the addition of sound and modest checks on the use, and also against the abuse, of this secret search authority.

    Section 213 of the PATRIOT Act, as codified at 18 U.S.C. §3103a (2004), contains at least two fundamental flaws. First, it fails to set a statutory time limit on secret searches. The statute requires notice of the execution of a sneak and peek warrant within a ''reasonable period of its execution,'' but sets no time limit on when such notice is required.(see footnote 1)

    From the outset, critics of the PATRIOT Act have warned that such open-endedness would result in these warrants being used to justify the indefinite delay of notice. Attorney General Gonzales recently testified that at least six of the secret searches that have been authorized under section 213 were authorized to be secret indefinitely, even though the Department has simultaneously said that a secret search under section 213 cannot be kept secret forever. The Attorney General has also testified that the ''average'' length of time a search is kept secret is between 30 and 90 days, but the government has not shared the details of most of its secret searches with the American people and has shared only limited information about a few carefully selected ones it wanted to discuss.(see footnote 2)
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    The indeterminateness allowed by the statute as it currently exists is directly contrary to the rulings in the only two circuit courts to fully consider the issue of a lower court authorizing criminal search warrants with delay in notification allowed before the PATRIOT Act.(see footnote 3) In the first such case, a circuit court held that ''in this case the warrant was constitutionally defective in failing to provide explicitly for notice within a reasonable, but short, time subsequent to the surreptitious entry. Such a time should not exceed seven days except upon a strong showing of necessity.''(see footnote 4)

    The only other circuit court to consider a lower court-approved delay in notice of a search, the Second Circuit, insisted on a specific time period for notice of a secret search, holding that notice could be delayed for only seven days unless there were fresh showings of cause for extensions.(see footnote 5) Prior to the PATRIOT Act and since it passed, the Supreme Court has not issued any decisions endorsing the constitutionality of secret criminal search warrants, except in the limited context of warrants authorizing the installation of devices (i.e., bugs) for audio surveillance specifically authorized by statute, a decision the Department wrongly relies on as authority for its position that the Court has approved ''sneak and peek'' searches for general purposes.(see footnote 6)

    The idea that giving an American citizen notice that their home or business is being searched by the police is central both to the spirit and to the letter of the Constitution. Indeed, the principle that law enforcement should ''knock and announce'' their presence before executing a search warrant was well entrenched in the common law by the time of the Constitution's ratification, going back perhaps an additional 300 years before the American Revolution.(see footnote 7)
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    Notably, the dreaded general warrants or ''writs of assistance'' wielded by the British crown's customs inspectors in colonial America actually ''required that notice be given before entry was made, and reported instances of [their] use included notice.''(see footnote 8) These searches were reviled not because they were conducted covertly under cover of night, but because they did not require any particularity or probable cause before issuance. The Supreme Court has relied on the original intent of the Framers in deciding that notice of a search is a basic aspect of whether a search is ''reasonable,'' as expressly required by the Constitution. In Wilson v. Arkansas, Justice Thomas wrote for a unanimous court that the ''common-law 'knock and announce' principle forms a part of the reasonableness inquiry under the Fourth Amendment.''(see footnote 9)

    Accordingly, the scope of permissible delay under section 213 of the PATRIOT Act is far broader than that contemplated by the appellate courts that examined sneak and peek authority prior to the PATRIOT Act. As such, supporters of modest PATRIOT Act reform have asked that Congress precisely delimit the period of delay. The bipartisan SAFE Act would create a time limit for the secrecy of such searches. The SAFE Act limits the initial period of delay to seven days, and allows that period to be renewed for good cause (for additional seven-day periods in the House version, and for 21-day periods in the Senate version). I commend Congressmen Flake and Conyers for co-sponsoring this legislation.

    I would note that the notice, or knock and announce, principle has been allowed by the courts to give way to countervailing law enforcement interests in extraordinary circumstances, which leads me to the second fundamental flaw of section 213. The operative word here is extraordinary, something that the PATRIOT Act ignores by authorizing secrecy under circumstances that too many criminal cases might meet. This flaw is more substantively dangerous than the open-ended notice provision of section 213 because it telegraphs to law enforcement agents that they can relatively easily get approval for a secret search.
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    Specifically, 18 U.S.C. §3103a(b)(1), enacted by the PATRIOT Act, requires an agent seeking a sneak and peek warrant to show that notice would have an ''adverse result'' as defined by 18 U.S.C. §2705, to include destruction of evidence, danger to a person, flight from prosecution, witness tampering or ''otherwise seriously jeopardizing an investigation or unduly delaying a trial.'' Leaving aside the issues of whether secret searches should be allowed generally in cases far afield from terrorism, the fifth provision—the catch-all exception—is the most problematic.

    Congress should eliminate the catch-all exception and circumscribe section 213. On the evening before the Senate Judiciary Committee's first hearing in preparation for the sunsets debate, the Justice Department released new statistics showing a marked increase in the use of these secret searches. This, by the way, is another reason Congress should impose a sunset on section 213 so that it will not become a permanent fixture in our criminal system, and also give the Executive Branch some incentive to account for its use of this extraordinary power.

    Between November 2001 and April 2003, the authorities used section 213 of the PATRIOT Act 47 times, a rate of 2.7 a month. Between April 2003 and January 2005, they requested and executed 108, a rate of 4.7 a month. At the Senate Judiciary Committee hearing, Chairman Specter disclosed that in a closed-door briefing DOJ admitted that 92 of the 155 sneak and peek searches that have been authorized since the PATRIOT Act have been under the vague ''catch all'' section, that there is ''reasonable cause to believe that providing immediate notification of the execution of the warrant may'' jeopardize an investigation.(see footnote 10) That's nearly 60% of the time.

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    The use of the catch-all will undoubtedly grow dramatically as the spotlight on the PATRIOT Act begins to fade. Arguably law enforcement could claim immediate notice of a search would jeopardize an investigation in many, perhaps most, criminal cases. Notably, agents have never been turned away in a request for a sneak and peek warrant.

    One must recall exactly what happens when federal agents use section 213. The government obtains a search warrant that allows agents to break into a private residence, enter under cover of darkness, conduct an extensive search of the premises, retain digital or paper files, document the search with photographs, seize tangible property like DNA, and then leave.

    In testimony before the Senate Select Committee on Intelligence, Attorney General Gonzales recently selected example of where the catch-all definition of ''adverse result'' was used to secure a sneak and peek warrant.(see footnote 11) Although the scenario was ostensibly meant to illustrate the need for retaining the open-ended justification for sneak and peek warrants, I believe it actually showcased the problem with this provision:

    In this case, the Justice Department obtained a delayed-notice search warrant for a Federal Express package that contained counterfeit credit cards. At the time of the search, it was very important not to disclose the existence of the federal investigation, as this would have exposed a related Title III wiretap that was ongoing for major drug trafficking activities.

    An organized crime/drug enforcement task force, which included agents from the DEA, the IRS, the Pittsburgh Police Department and other state and local agencies was engaged in a multi-year investigation that resulted in the indictment of the largest drug trafficking organization ever prosecuted in the Western District of Pennsylvania.
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    While the drug trafficking investigation was ongoing, it became clear that several leaders of the drug trafficking conspiracy had ties to an ongoing credit card fraud operation. An investigation into the credit card fraud was undertaken and a search was made of a Federal Express package that contained fraudulent credit cards.

    Had notice of the Federal Express search tied to the credit card fraud investigation been immediately given, it could have revealed the ongoing drug trafficking investigation prematurely, and the drug trafficking investigation might have been seriously jeopardized. Even modest delay would not have been available if this provision of Section 213 were deleted.

    I would urge the Members of the Subcommittee to question the Attorney General at more length about this example.

    First, I think it notable that this case does not involve terrorism at all. Although the Justice Department continues to argue that those of us who voted for the PATRIOT Act knew full well that this was an omnibus crime measure, not just a terrorism bill, I think that is disingenuous. Attorney General Ashcroft was quite clear in his admonitions that delay on passage of the PATRIOT Act would lay the blame for any future terrorist attack on our heads. Yet, as we saw in the Justice Department's field report on the use of section 213, released in September 2004, it appears that the government is using delayed-notification search warrants primarily in criminal cases.(see footnote 12)

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    Second, I do not see how this example bolsters the case for retaining the catch-all definition of ''adverse result'' for sneak and peek warrants. Could the agents in this case have made a solid argument that notice of the search would have resulted in the destruction of evidence, flight from prosecution, or intimidation of persons or witnesses? If so, they could still have obtained a delay under more exacting rules. If not, what did they believe would be the result of providing notice?

    Fixing this failing in section 213 is not difficult. The SAFE Act, in both the Senate and the House, would remove the catch-all provision. I urge the Subcommittee to support this modest improvement to the PATRIOT Act.

    Finally, I would note the increasing use of sneak and peek searches. One of the primary reasons we insisted on including sunset provisions in the PATRIOT Act was out of fear that by breaking down checks and balances on government authority, we would encourage ''mission creep'' and the use of these broadened authorities in contexts far afield from counter-terrorism.

    And, while I acknowledge the Justice Department's argument that the use of delayed-notification search warrants only represents a small fraction of the tangible searches conducted by federal authorities annually, I fear my concerns are not assuaged. Sneak and peek warrants are inherently problematic. They do not give you a chance to examine the warrant before execution for mistakes or to challenge it.

    While I think anyone knowledgeable about the practical nature of law enforcement, criminal investigation and counter-terrorism can contemplate the need for this special power under very special circumstances, the PATRIOT Act really threatens to make what should be an extraordinary power an ordinary power. And for that reason, I ask you to support at least the modest changes to the language of the law embodied in the SAFE Act.
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    Additionally, I would note the there is incomplete information about how this power has been used. We know it has been used at least 155 times as of this January. What we do not know, and what the government isn't telling the Judiciary Committee or the American people, is:

 how many times section 213 has been used in terrorism cases, as opposed to more ordinary crimes;

 how many times it has been used against citizens, versus foreign suspects;

 how many times the secret warrants have led to prosecutions or convictions and how many of those were in terrorism cases; and

 what happens to the contents of such secret searches (taking photos of people's homes, copies of their computers or their even their DNA samples) if no charges are brought.

    I will now turn briefly to the other sections that are a subject of this hearing.

    Section 223, which provides a civil remedy for victims of unlawful government surveillance, is a common-sense privacy protection measure and should be renewed. However, victims of secret surveillance abuse will often not know of such abuse and, as a result, the usefulness of section 223 is limited. Nevertheless, while it may be rare for an innocent person to discover they have been the victims of unlawful government surveillance, in such cases there should be a remedy, and section 223 provides one. It should be made permanent.
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    Sections 201 and 202 of the PATRIOT Act added new terrorism-related crimes to the list of criminal wiretapping predicates under Title III. While any expansion of federal wiretapping powers must give small government conservatives some pause, I personally regard these provisions of the PATRIOT Act as mainly beneficial to law enforcement and not unduly intrusive on the privacy of the American people. Title III requires a court order from a regular federal district court based on probable cause of crime, the time-honored Fourth Amendment standard that is lacking in surveillance orders approved by the special court that administers the Foreign Intelligence Surveillance Act (FISA). As a result, Title III surveillance is much less susceptible to abuse than FISA surveillance. The new wiretapping predicates listed in sections 201 and 202 are serious federal crimes. In my personal opinion, Congress should make sections 201 and 202 permanent.

    I look forward to your questions. Thank you.

    Mr. COBLE. I thank all of the Members.

    Now, folks, we apply the 5-minute rule to ourselves as well, so if you all could keep your responses as tersely as possible, that way we can cover more ground.

    And, Mr. Sullivan—strike that.

    We have been joined by the distinguished gentleman from California. Dan, good to have you with us. No one else is here.

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    Mr. Sullivan, if section 201 of the USA PATRIOT Act is allowed to expire, is it true that criminal investigators could obtain a court-ordered wiretap to investigate mail fraud and obscenity offenses on the one hand, but not offenses involving weapons of mass destruction? Is that correct?

    Mr. SULLIVAN. That's a correct statement, Mr. Chairman.

    Mr. COBLE. That was a rhetorical question. I thought that was right. Do you want to elaborate just a minute on it?

    Mr. SULLIVAN. Well, certainly. Congress essentially has provided a number of predicate offenses in which electronic surveillance would be allowed. The circumstances of section 201 included offenses that traditionally terrorists have used prior to the passage of section 201, and the Government was not permitted to essentially use electronic surveillance for those particular offenses.

    Mr. COBLE. Thank you, sir.

    Mr. Barr, your distinguished tenure as U.S. Attorney in Georgia, at any time did you or any of your assistants file an application for a delayed notification of a search warrant?

    Mr. BARR. I don't recall specifically, Mr. Chairman. It wouldn't surprise me if there were circumstances such as many of those very appropriate examples laid out in the former—the current Attorney General's testimony and the report submitted to the Congress. It wouldn't surprise me if my office did under such circumstances as those. I don't specifically recall any instances, Mr. Chairman.
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    Mr. COBLE. I thank you.

    Mr. Rosenberg, section 213 requires that notice be given to those against whom a search warrant was executed within a reasonable amount of time. Now I've known that as few days as 7, and I think 180 at one point. Comment what, in your opinion, is reasonable and how oftentimes a judge might come to that conclusion.

    Mr. ROSENBERG. Thank you Mr. Chairman for the question. That is a very fact-specific inquiry.

    In every case we go to the judge, and we ask her for what we believe we need in a particular investigation, whether it's drugs or mob or child pornography. So 7 days may well be all we need in a particular case, and all we get. In another case it may be 3 weeks or 2 months. And so each time we will go to the judge and attempt to demonstrate not just probable cause for the search, but reasonable cause for the delay based on the facts and circumstances.

    Mr. COBLE. I thank you.

    Ms. Mac Donald, I am told—and I have not seen it—but I am told that the ACLU has run a television advertisement claiming that section 213 of the USA PATRIOT Act allows law enforcement to search homes, ''without notifying us.'' Now, are you familiar with that ad?

    Ms. MAC DONALD. Well, that sounds very similar to a written copy that they produced soon after the PATRIOT Act was passed.
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    Mr. COBLE. And if, in fact, that was disseminated, I believe that would be an inaccurate description of section 213; would it not?

    Ms. MAC DONALD. It's a classic example, Chairman, of the strategies used against the act to rewrite it, to amend the statute by saying—ignoring the fact that a judge has to approve delayed notice, and the fact that notice is only delayed, it is not a permanent condition that the Government is asking for.

    Mr. COBLE. I thank you.

    Bob, I think I have one—time for one more question.

    In your testimony, Mr. Barr, you briefly mention that you support making permanent sections 201 and 202, and 223 of the PATRIOT Act. Explain to us why you are comfortable with that position.

    Mr. BARR. Thank you, Mr. Chairman.

    With regard to section 201 and 202, which simply add new or added new terrorism-related requirements to the list of criminal wiretapping predicates under title III, I think, the offenses that have been and would continue to be included if that provision is extended are appropriate.

    We also understand, of course, as this Committee does, that title III includes within its provisions many safeguards on the extent to which and the way in which a title III wiretap, so to speak, is carried out. So there are plenty of safeguards in the statute already.
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    Section 223, which provides a civil remedy for victims of unlawful Government surveillance, I think, is a common-sense privacy measure that should be renewed. And I think there is also—Congress acted correctly initially. We've looked at those, I'm sure the Subcommittee and the full Committee will look carefully at them, and we have no problem with those being reauthorized.

    Mr. COBLE. Thank you. My time has expired.

    The gentleman from Virginia.

    Mr. SCOTT. Thank you.

    Ms. Mac Donald, I was intrigued with your use of the word ''propaganda'' because we've been having some trouble trying to get some straight answers from some of the other witnesses, and there is exaggeration of some of the provisions. We haven't discussed this provision today, but the FISA wiretaps and some of the expanded powers under the Foreign Intelligence Surveillance Act, everybody comes and testifies without exception about the use in terrorism, terrorism, terrorism. And it is almost like pulling teeth to try to get them to acknowledge that FISA is not just terrorism; in fact, it can be used even if crimes are not involved, if it's involving generic foreign intelligence, conduct of foreign affairs.

    And when you talk about hiding the judge, they say, yes, but we have to get probable cause. And then you say, probable cause of what? You don't have to find probable cause of a crime, just probable cause that the person you're starting the wiretap with is an agent of a foreign government. There doesn't have to be any crimes involved.
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    So I agree with you that there is a lot of misinformation, and I appreciate your testimony today.

    Let me ask you a specific question. You indicated, I think, that you could not have one of these secret searches where the delay is permanent, where it is an indefinite secret; is that your testimony? Did the Attorney General say that six of the secret searches were authorized by a court to be secret indefinitely?

    Ms. MAC DONALD. I'm not aware of that. There are possibilities for continuing delay; but again, that is a fact-based determination, and I think that——

    Mr. SCOTT. It could be permanent, you may never know. You may never know.

    Ms. MAC DONALD. In a completely hypothetical scenario, I suppose, if you have an ongoing investigation——

    Mr. SCOTT. Let's ask Mr. Rosenberg. Any cases where the search—where the court has authorized an indefinite secret?

    Mr. ROSENBERG. To my knowledge, Mr. Scott, if you're talking about delayed notice searches apart from FISA, notice is always given, always. Now, the investigation may run a long time——

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    Mr. SCOTT. Indefinitely.

    Mr. ROSENBERG. Well, no, not indefinitely, a long time. And at the end of that time——

    Mr. SCOTT. You're not aware of any cases where the court has authorized an indefinite secret?

    Mr. ROSENBERG. Well, let me say it this way: At the end of the investigation, notice will be given. Now, there may be a case——

    Mr. SCOTT. Or, as a matter of fact, the end of the war on terrorism. That's when enemy combatants get out of jail.

    Mr. ROSENBERG. There may be a case where a judge leaves it open and requires the assistant United States attorney to come back, and often we do. Often we come back and ask for permission again.

    Mr. SCOTT. Well, we will get more specific information on these six cases.

    Mr. Rosenberg, when you use the word ''judge,'' are you using United States district court judge and United States magistrate interchangeably?

    Mr. ROSENBERG. Yes, sir.
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    Mr. SCOTT. Okay. When you go to get one of these warrants, does the U.S. Attorney or an assistant U.S. Attorney go, or does the FBI go by itself?

    Mr. ROSENBERG. That practice will vary. In the Eastern District of Virginia, where I was an assistant U.S. Attorney, both in Norfolk and Alexandria, the practice was typically—and I believe in Alexandria all the time—for the assistant U.S. Attorney to accompany the agent to the magistrate judge's chambers when the warrant was sworn out.

    Mr. SCOTT. In the normal search you have some checks and balances. You have to announce so the person being searched has an opportunity to contest it. If it is overly broad, they can comment on that, and if it's out of bounds, they can—you're subject to the exclusionary rule. If you have several searches, and only one of them produces any evidence, what is the sanction against not notifying those for whom you're not using evidence?

    Mr. ROSENBERG. Well, let me just pick at one part of the premise. Delayed notification searches are normal searches, they just have delayed notice. But in all cases, Mr. Scott, in all cases, if there is a criminal proceeding—and often there is at the end—then the subject of the search can challenge it in all the ways——

    Mr. SCOTT. If there is no criminal proceeding, if you didn't find anything in the search——

    Mr. ROSENBERG. Then, for instance, under rule 41 of the Federal Rules of Criminal Procedure, the subject of the search can move for the return of his property.
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    Mr. SCOTT. If there is nothing to return. Well, they don't know, if you didn't let them know.

    Mr. ROSENBERG. But you do let them know. You always let them know.

    Mr. SCOTT. What is the sanction for not letting them know?

    Mr. ROSENBERG. You mean for willfully violating a Federal rule of criminal procedure? I'm not an expert here, but I imagine there would be some civil remedy.

    Mr. SCOTT. For evidence that is excluded in court under the exclusionary rule which suggests that some violation occurred, are you aware of any police officer or prosecutor that has ever been prosecuted for the illegal search, other than being embarrassed with the exclusionary rule?

    Mr. ROSENBERG. Not all bad searches are illegal searches, sir; some bad searches are made in good faith, and evidence is suppressed even though there is no illegality.

    Mr. SCOTT. If you have a bad search and don't notify them, what is the sanction?

    Mr. ROSENBERG. You do notify them; you notify in all cases.
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    Mr. SCOTT. But there is no sanction if you don't.

    Mr. ROSENBERG. Again, if you don't notify—if you willfully violate the Federal Rules of Criminal Procedure, Mr. Scott, then I would imagine at the end—it hasn't happened to me, I have never willfully violated the rules of criminal procedures as a prosecutor—that there would be a remedy for the subject of the search.

    Mr. COBLE. The gentleman's time has expired. The gentleman—in order of appearance, the gentleman from Ohio Mr. Chabot is recognized for 5 minutes.

    Mr. CHABOT. Thank you, Mr. Chairman. I want to thank you for holding this important hearing.

    I want to first join my colleagues in welcoming former Congressman Bob Barr; we are very interested in his testimony. We may not agree with everything, as we didn't necessarily agree on this Committee all the time, but it was an honor to serve with Congressman Barr here. And we sat next to each other for about 8 years on this Committee and on the full Judiciary Committee and went through all kinds of things together, from impeaching Presidents to debating about whether or not we ought to put cameras in the Federal courtrooms, and a whole range of other issues.

    So it's great to have you back today, Bob. Bob, we wish you best in the future as well. I would like to see you back up here someday if the cards are right.
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    Let me, if I can, turn to you at this point Ms. Mac Donald. And Mr. Scott was cross-examining you there with some questions and things, and because of time, oftentimes witnesses don't get a chance to respond to the extent that they might like to. If there are any additional responses that you might like to make to any of the points that my friend was making, I would be happy to give you that time now.

    Ms. MAC DONALD. Well, I think, again, we need to understand that these are members of the Federal judiciary who have been sworn to uphold the Constitution that are ruling on whether delay is reasonable in a particular search. And again, this is after already having found probable cause to conduct the search in the first place.

    There is a second step that the judge has to go through in approving a delayed notice search, which is, is there grounds, certain exigent circumstances that make delay reasonable, such as witness intimidation or obstruction of evidence.

    It seems to me we have to assume that the checks and balances that the Founders provided in setting up the Constitution in the first place, the most important of which is judicial review, will work in this situation. I don't understand how you can possibly conduct a preemptive investigation, whether it's a criminal investigation or a terror investigation, without a delayed notice capacity. It is logically impossible to preemptively investigate either a crime or terrorism and notify the subjects of the search.

    Mr. CHABOT. Thank you.

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    Let me ask you another question. The Knoxville News Sentinel in Tennessee reported that during the jury deliberation process in the case of Hafiz and Torres-Luna that ultimately found the two men not guilty of cocaine possession and distribution, as well as multiple Federal firearm violations, the jury posed a PATRIOT Act-related question to the judge. The question asked, if the defendants were being tried under the PATRIOT Act—in a handwritten note to the judge added that the PATRIOT Act had been ruled unconstitutional in four States and several municipalities. Judge Leon Jordan responded simply, ''no''. Could you comment on that story?

    Ms. MAC DONALD. That's classic. You found a classic example. The ACLU and other groups have done a bang-up job of getting misunderstanding out there. Everybody thinks they're under PATRIOT Act investigations. They think the war in Afghanistan is being conducted under PATRIOT Act powers.

    The PATRIOT Act was a narrow act designed for one thing and one thing only, intelligence. It acknowledged the fact that our only weapon against terrorist is intelligence. We cannot target-harden our way into safety.

    And so when it comes to bringing surveillance powers into the 21st century, acknowledging the existence of cell phones and e-mail, the PATRIOT Act does that, tearing down the wall that prevented two FBI agents on the same al Qaeda squad from talking to each other, the PATRIOT Act tore down that wall. It is narrow; it is not something that is affecting the entire country. And again, if there had been abuses under this act, believe me, Congressman, we would have heard about it.

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    Mr. CHABOT. And that's what I wanted to get into with the little time I have remaining. I know, Mr. Rosenberg, I think, Mr. Sullivan, you also indicated, that there weren't any examples of PATRIOT Act abuse, and not a single example of abuse of civil rights and that sort of thing, and I've heard that before.

    Bob, do you have any cases or are there any examples that you've heard that you would believe that would counter that? What would be your response to that?

    Mr. BARR. It's, of course, very difficult to say, Mr. Chabot. For one thing, section 213 searches are conducted in secret, so it's very difficult to know what abuses there might have been, if any. So it's virtually impossible, at least until the end of these investigations when—and I certainly take the Department of Justice at its word, that at the end of the investigations, everybody will be notified. The problem is, Mr. Chabot, we know for a fact, according to the Attorney General's testimony, that in at least I believe six of the instances in which the Government allows that it has sought the section 213 authority to conduct a search without notice, that the delayed notice has gone on indefinitely. So it's virtually impossible to say, Mr. Chabot.

    We do know there have been some examples of noticeless searches such as that, even though it was not conducted under section 213, the problems that manifest themselves are the same, the Mayfield case out in Oregon. And I don't want to get into a big discussion of that, but that was simply a case in which there was a noticeless search that turned out to be problematic.

    So I think one can reasonably state that there have been problems, the extent of which, the magnitude of which it is impossible to say at this still relatively early stage in the exercise of section 213 powers.
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    Mr. CHABOT. Could I ask for unanimous consent for 1 additional minute, if I could, just to ask for a response?

    Mr. COBLE. I'll do that, but we're going to have a second round as we go.

    Mr. CHABOT. If I could have 1 minute, I would appreciate it.

    Mr. COBLE. All right.

    Mr. CHABOT. Would any of the witnesses like to respond to the response about allegations and the secret cases and things?

    Ms. MAC DONALD. I would like to respond to the Mayfield case, because I know it has been raised before. The Mayfield case was not an abuse of the PATRIOT Act. The problem was there were fingerprints; the FBI misread the fingerprints. But it's—the use of the PATRIOT Act were completely valid. And this was, after all, a terrorism investigation. Let's remember the context. This was after the Madrid train bombing, and the FBI had evidence that led them to Mr. Mayfield. Unfortunately they read their prints wrong. It had nothing to do with abuse of the PATRIOT Act.

    Mr. CHABOT. Thank you very much. Yield back.

    Mr. COBLE. The Chair now recognizes Mr. Sullivan's personal Congressman, Mr. Delahunt.
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    Mr. DELAHUNT. That's right, I am his Congressman.

    Ms. Mac Donald, I think that Mr. Barr's observation that access to information is very problematic in terms of reaching a conclusion as to whether there has been problems or abuse—you know, you referenced earlier the—I think it was 1968 and J. Edgar Hoover and the FBI having transformed itself.

    [10:58 a.m.]

    Mr. DELAHUNT. I beg to differ. I think it has transformed itself recently. But one can point to numerous abuses during the 1970's and the 1980's and the 1990's. I know Mr. Sullivan is familiar with what occurred in the Boston office of the FBI, as am I.

    You know, you talk about secrecy in Government or distrust, if you will, of secrecy in Government. I would suggest it is healthy. It is really, if you will, reflective of the Founders' concerns about Government. It really led to the Bill of Rights. I think that Mr. Barr would probably concur with that. So I can assure you—I sat on a Committee that was examining the conduct of the Boston office of the FBI; to secure information from the executive branch of Government was extremely difficult. We do not know what is occurring, and I say Congress does not really know. And I am not suggesting any individual is in any way withholding information. It is just, if you will, I presume that the natural tensions that exist between the branches. But the problem is, is secrecy in Government.

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    You know, the American people are reading that there is a huge increase in the number of classified documents on a yearly basis. You know, the gentleman that is responsible for archives and the keeping of that information has publicly expressed concern. So notice and transparency, you know, is important in terms of accountability. We are all held to be accountable. I hope that there are very few abuses. I mean, I think you say you cannot cite a single example. Well, we do not know.

    And I guess, let me direct this question to Mr. Barr, because he served in Congress, and he is familiar with the relationship between the branches. And I have to tell you something, I think we have had a series of very informative hearings under the leadership of Chairman Coble relative to the PATRIOT Act, but I am becoming more and more inclined to not make permanent any particular provision that will sunset. In fact, I would go a step further, because I would entertain and, possibly when the time comes, seek to amend to make the entire PATRIOT Act subject to sunset. I do not know how many years. But I have no doubt that it would encourage cooperation by the executive branch and enhance accountability to the American public.

    And I would—Bob, what is your—former Congressman Barr, what is your take on my observations?

    Mr. BARR. Well, it is a view that I share and I think the true conservatives share as well. And I am somewhat mystified why a lot of my former colleagues and your current colleagues are so afraid of a sunset provision.

    Particularly those of us who are conservative about many issues understand the need for oversight, as you have eloquently expressed it, and we also know that the realities are that if, generally speaking, if Congress does not have to do something, it will not. And this is a case in point. I do not think that we would be here today, I do not think that these hearings would be convened at this point in time were it not for the sunset provisions. It is a very, very important provision that liberals and conservatives alike ought to embrace.
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    Mr. COBLE. I thank the gentleman.

    The distinguished gentleman from California. If you will suspend just a minute.

    Let me say to my friend from Massachusetts, the other day, you may recall I indicated that I am not uncomfortable conceptually with sunsets; it gives us a chance to come back and reexamine it. But I would say this—and this would be over my pay grade I am sure—but I would like for us subsequently to, when we examine sunsets, I would like for it to be at the end of a Congress rather than in the first early weeks as the case has been now. We have been jumping through hoops, as you all know, for the past 2 months.

    The gentleman from California.

    Mr. LUNGREN. Thank you very much, Mr. Chairman.

    Thank you, members of the panel, for appearing before us.

    Mr. Barr, I happen to think oversight is extremely important. That is why I have made the observation more than once that Congress cannot do appropriate oversight just meeting Tuesday through Thursday. That is above our pay grade here, but I mean that honestly. Congress ought to reorganize itself so that we are here 5 days a week. This Chairman is working very hard to do it, but the compression of time with Committees and Subcommittees where, basically, part of Tuesday and Wednesday is the only time you have got to meet together I do not think gives us proper time for reflection. And that is just an observation I have had after being gone from this place for 16 years.
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    Mr. Rosenberg, Mr. Barr has said that ''secret searches,'' of American homes and businesses must not be allowed to become routine; they must be closely circumscribed. I happen to agree with him on that. However you characterize it—but one way the Government can justify delayed notice search warrants is through—well, the ways they can are articulated specifically in the statute. But one of those is number five: Notification would cause serious jeopardy to an investigation or unduly delay a trial. That has been criticized as being a catch-all phrase that leads to delayed notice being issued in run-of-the-mill cases. How would you respond to that characterization?

    Mr. ROSENBERG. Mr. Lungren, by the way, I believe, too, that we should be carefully circumscribed and scrutinized in the way that we use this power. Having said that, I do not see that as a catch-all provision. As a career prosecutor, I can tell you that most of the time that we use a delayed notice search—and, again, we only use it in two out of every thousand searches or so—it is because notifying the subject of the search prematurely is going to essentially end, upset, or jeopardize the investigation. And just to be clear: We need to go to a judge, a magistrate judge or a Federal judge, and demonstrate that to her satisfaction.

    So you may call it a catch-all provision—not you personally. Others may call it a catch-all provision, but it is not. It is really the part of the statute that we rely on most often, at least the plurality of the time, that we are seeking this authority, because that is the way we do our business. We have investigations, and as they play out, we like to see who else is involved, who the conspirators are, who they are talking to, who they are selling to. And if we bring it down too fast, we jeopardize that.

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    Mr. LUNGREN. I know we have had this in the law for some period of time. We want to make sure it applies to terrorist cases. And it has been my observation that we do have the presence of so-called sleeper cells in the United States who we have evidence not only have been here for days, months, but years, which would suggest an investigation of people involved in that might take more than a few days. And in his written testimony, Congressman Barr stated that section 213 sets no limits on the length of time notice of search warrants execution may be delayed.

    But isn't it true, Mr. Rosenberg, Ms. MacDonald, that the judge would set the time? The judge sets the time? And that if, at the end of that time, you need more time, you have to go back?

    Mr. ROSENBERG. That is exactly right, sir. The judge would set that time based upon our application. We would have to demonstrate what we needed and why we needed it.

    Mr. LUNGREN. What about Mr. Barr's suggestion that 7 days would be a reasonable time, at least to start the process going?

    Mr. ROSENBERG. He is right in some cases, 7 days may be all we need in some cases. But it is clearly not all we need in certain cases. And so I believe the way the law is written now gives us the flexibility and the judge the necessary oversight to set a reasonable amount of time.

    Mr. LUNGREN. Now, let me mention, in the letter that we received from the Justice Department, they talked about one of the cases that was involved with the U.S. Attorney in the Southern District of Illinois sought and received approval to delay notification based on the fifth category of adverse result. The length of the delay granted by the court was 7 days. Notification could not be made within 7 days, and the office was required to seek 31 extensions. The office was able to do that. Why is that a problem?
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    Mr. ROSENBERG. Well, it is a problem only in the following sense: Every time we go back—and we go back often for many things—but every time we go back, we are not doing something else. We have a finite pool of resources; we can spend it in any number of ways. In this case, the judge gave us 7-day increments.

    Mr. LUNGREN. Thirty-one times.

    Mr. ROSENBERG. Thirty-one times. But that is 31 applications, 31 times that the agent comes down to the courthouse to swear out the warrant; 31 times that an assistant U.S. Attorney is not doing something else.

    Mr. LUNGREN. Let me ask Mr. Barr to follow up on that and then ask you to respond because my time will be up.

    Congressman Barr, here you have a situation where they went 31 times, each time getting 7 days. Doesn't that seem a little silly? Or do you think that is appropriate because what we are doing is we are protecting constitutional rights, and therefore, we ought to extend that? And my second question is, is it the 7 days that you support, or is it some statutorily specified time that could be longer than 7 days?

    Mr. BARR. I do not think there is anything magical about 7 days, Mr. Lungren. I do think it is important that there be a requirement on the Government such as in the SAFE Act that I and a number of others are supporting. For extensions, we believe that is entirely appropriate. I do think, though, that if the Government is forced to go back to the court on a regular basis, and if it is 7 days, then it is 7 days. And my experience as a U.S. attorney, that sort of thing was never a problem. Yes, does it take a few minutes of time? Absolutely. But those are procedures that are, generally speaking, fairly routine to both the assistant U.S. attorneys and the investigators.
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    Mr. LUNGREN. Would 21 days or 30 days be appropriate under your concept?

    Mr. BARR. I think 21 days could be. And that is the provision that is provided in the SAFE Act which is pending in the other body in the Senate version.

    Mr. LUNGREN. Ms. MacDonald?

    Ms. MACDONALD. Well, Mr. Barr reminded us of the constitutional history of warrants and warrants for searches perfectly appropriately.

    And of course, Mr. Delahunt, we need to preserve the constitutional framework for our Government. I believe the PATRIOT Act does that. But let us remember that the fourth amendment itself speaks in terms of reasonableness. It prohibits only unreasonable searches. It does not itself try to codify that with numerical terms. So judges, their very profession is involved in reading broad grants of authority like the Constitution gives them. So I think that the wording of the current section 213, which says you may delay notice for a reasonable period of time, is fully within the constitutional tradition and allows judges to make that fact, specific determination for each preemptive investigation.

    Mr. COBLE. The gentleman's time has expired.

    Mr. Rosenberg, I noticed that you referred to judges in the feminine gender. I do not want any of these male judges to accuse you of discrimination. Hopefully, that will not happen.
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    Mr. ROSENBERG. I have a daughter at home who is going to make sure I do it just that way.

    Mr. COBLE. Very well.

    Folks, in view of my allergy infirmity, I am going to rest my vocal cords, and let Mr. Scott start the second round.

    Mr. SCOTT. Thank you, Mr. Chairman.

    Mr. Barr, if you give the notice late, if you violate the law, if you had 7 days to do it and you turned in the evidence, turned in the report a couple of days or a couple of weeks late, but you are not going to use the evidence, is there any sanction?

    Mr. BARR. Currently, no, the law provides none.

    Mr. SCOTT. Now, when we start trusting people, we have to put it in the context that this Administration in prior testimony on enemy combatants suggested that you could arrest an American citizen and hold them indefinitely without charges until the end of the conflict, which sounds like until the end of the war on terrorism, which certainly violates what most of us thought the Constitution would have required.

    So let me ask you, Mr. Barr, another question. On the question of Mohammed Atta's computer, are there provisions in the law right now without the catch-all provision that would have allowed someone to get to his computer? Or would you have to rewrite the catch-all provision to be able to allow the search of his computer on a delayed notice?
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    Mr. BARR. I think, Mr. Scott, that if you look at the language of the exception, the adverse result, which is found in 18 U.S.C. 2705, clearly, and I think this is evident in the various examples of how delayed notice or notice-less searches have been used that have been provided by the Department of Justice and by the Attorney General. The categories that we are talking about here, endangering the life or physical safety, flight from prosecution, destruction of or tampering with evidence, or intimidation of potential witnesses are extremely broad. And I went through the list of examples that the Department has cited, and I would be hard pressed as a former prosecutor using one's imagination within the bounds of the law not to find an appropriate basis even in those four exceptions to the general rule to take into account the situation that would have been faced or would be faced in a Mohammed Atta situation.

    And it is also important, I think, to emphasize, Mr. Scott, that the SAFE Act, which is simply one vehicle now currently pending before both houses of the Congress to correct this deficiency, clearly, clearly lays out a scenario and appropriate basis on which that very situation could and should be addressed.

    Mr. SCOTT. Thank you.

    Now, Mr. Barr, in your testimony, you ask several questions about what we know about the use of section 213. And I am going to ask Mr. Rosenberg, do you know how many times section 213 has been used in the 155 cases? How many of those were terrorist cases? How many we used against U.S. citizens? How many times the secret warrants have actually led to prosecutions? And how many of those were terrorism cases? And what happens to the contents of such searches if no charges are brought? I assume you cannot answer those off the top of your head.
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    Mr. ROSENBERG. I cannot answer all of those off the top of my head.

    Mr. SCOTT. If you could provide us with that information.

    Mr. ROSENBERG. I think I can answer part of that, though, Mr. Scott. I do not know how it breaks down between terrorism cases and perhaps what I would call the more ordinary criminal cases. But my impression, and again, having been an assistant U.S. attorney for so long, that most of the time that we use a delayed notification search it would be in the drug context or perhaps the fraud context. Now, some of those may also be terrorism-related. I would be happy to get back to you, though, sir, with all the specifics or at least as many as we can muster.

    Mr. SCOTT. Well, if you are having a drug investigation, any search is going to, ''seriously jeopardize an investigation, or unduly delay a trial,'' any drug investigation would qualify for that.

    Mr. ROSENBERG. Not necessarily. Not if you are at the end of the investigation and you are doing a search and making an arrest simultaneously.

    Mr. SCOTT. If you are investigating drugs in a major city, that is going to be, it seems to me, an ongoing operation.

    Mr. ROSENBERG. Often it is. But, again, if you are at the end, you could certainly in theory and in practice search and arrest, notify then, and bring the whole thing down.
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    Mr. SCOTT. Would you agree to a more comprehensive report on the use of section 213 and have more meaningful limits on the length of the delays for notification?

    Mr. ROSENBERG. I know we are happy to look at anything that the Committee proposes. I do not have the authority to commit the Department of Justice to anything right now.

    Mr. SCOTT. You cannot blame me for trying.

    Mr. COBLE. I thank the gentleman from Virginia.

    The gentleman from California, Mr. Lungren, is recognized for 5 minutes.

    Mr. LUNGREN. Thank you very much, Mr. Chairman.

    Mr. Rosenberg, I would like to go back to the question of the fifth basis for allowing a delayed notification, quote, unquote, criticized by some as the catch-all phrase. Mr. Barr in his testimony specifically claims that law enforcement could claim that immediate notice of search would seriously jeopardize an investigation in many and perhaps most cases, in other words, not requiring you to be put to the test on the previous three or four, where you have to show specifically how it is done. Can you respond to that in some detail? And what I mean by that is, this architecture of the law has been there for some period of time prior to the PATRIOT Act. It has been utilized on numerous occasions in the past. From your standpoint, do you recognize the potential abuse there? Is this just something that sort of is overblown? I mean, do you understand why some people are concerned? And how do you specifically respond to that? That is, if you have those previous three or four, I guess it is four that you can talk about, how come you need this one?
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    Mr. ROSENBERG. It is a very fair question, and I appreciate the opportunity to address it. Remember, sir, we always have a filter on this, a very important filter, a Federal judge. And so it might be the case—and, again, I am speaking hypothetically now—where we do not know of a specific person whose life is endangered or we do not know of concrete evidence that we are going to lose or that will be destroyed. And so there is that more general provision that allows us to demonstrate, we hope, to a judge and have him or her authorize the delay under the fifth provision. But we have to go to a judge, and we have to demonstrate probable cause for the search and reasonable cause for the delay. And so you always have this filter. And that is the most important thing I can say today: We have to go to a judge, and we have to show a fact-specific reason to invoke one of these exceptions. Now, sometimes, we will invoke two or three in the same case. Lawyers often plead in the alternative. It is common. And we will say we think we may endanger the life of a witness; and if we lose that witness, it would seriously jeopardize the investigation. They can both be true at the same time. But we will lay out all the facts of a particular case and ask the judge to make that determination for us. We are not doing it ourselves.

    Mr. LUNGREN. Mr. Barr, I would love to have you respond to that, because it just strikes me that we have had this architecture for some years used in obscenity cases, drug cases, organized crime cases. Now, we are having it apply in terrorist cases. And while I share your concern that we ought not to let the terrorists succeed by having them cause us to tear up our Constitution in addition to or as opposed to tearing up our physical structure, that we are faced with a very, very serious threat that is out there. And because of the vastness of the threat and the almost sort of new intelligence that we are receiving and trying to understand this threat, that that fifth category may be more appropriate in terrorist cases than some of these other cases. And so I just ask you for your response to that. Is your criticism that the four previous categories are sufficient to cause specificity of evidence to be presented before the judge such that he or she could make an intelligent decision so that the fifth one is not necessary? And is that what your sense of catch-all phrase is?
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    Mr. BARR. I do not have any problem, Mr. Lungren, with a fifth category. And that is why, for example, in the SAFE Act currently pending before the House and the Senate, it clearly provides that where there could be a serious endangerment of the national security by giving contemporaneous notice, the Government can seek or can apply for delayed notification. That is entirely appropriate. I think that clearly reflects the new world in which we are operating. I think it is a very broad authority for the Government, but yet it places a burden on the Government for more than some bureaucratic reason which unduly delaying a trial provides. I think unduly delaying a trial as the basis for not providing notice which has been, since long before our Constitution, one of the bases of privacy in our country and freedom in our country, is clearly not sufficient. And even if one assumes, as the Government is saying, they have had no abuses of this, especially as a conservative, I have a problem with the Government having that sort of broad authority because it can be abused very easily.

    Mr. LUNGREN. So am I. With all due respect, does that mean you do not want us to get rid of the fifth category, or are you just saying that we have to be particularly observant of that fifth category?

    Mr. BARR. I think it needs to be that—and I do believe, even with the Government's explanation of the circumstances under which the category is seriously jeopardizing an investigation or unduly delaying a trial, clearly indicates it has become sort of a catch-all. You put it in along with those others in case the others do not——

    Mr. LUNGREN. But you are raising that as a concern. You are not saying we need to——
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    Mr. BARR. I think—I believe that, in order to be consistent with sound constitutional principles, the current category five needs to be removed. I would propose replacing it with one that is more specifically tailored to national security concerns.

    Mr. LUNGREN. Okay.

    Mr. Rosenberg, is the Candyman case relevant to this discussion at all?

    Mr. ROSENBERG. I believe it is. You are referring to an investigation in which we had notice that a car I believe bearing some 30,000 ecstasy tablets was going across the Canadian border. It was stopped in Buffalo. And, using delayed notification search authority—meaning probable cause and reasonable cause for delay—we searched the car, allowed the investigation to continue, took very dangerous drugs off the street and, ultimately, rounded up a whole bunch of other drug conspirators. And we did that under the fifth so-called catch-all—a phrase that I reject—exception that you find in section 2705.

    In other words, had we had to take that whole case down there and then in Buffalo, okay, we would have still succeeded in removing those ecstasy tablets from the street, but we would not have been able to follow the trail of that investigation to other conspirators.

    Mr. LUNGREN. Was that in part because you did not know the extent of where the investigation would take you at that point in time, and that is why the fifth category was appropriate? I am trying to figure out why the fifth category is necessary and under what circumstances.
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    Mr. ROSENBERG. Well, that is exactly right. At the beginning of an investigation, you often do not know where the trail will lead. You are surprised many times by the twists and turns that it takes. And I know that you have a background in law enforcement. You do not always know who is involved or to what extent or where they live. And so allowing an investigation to run, not seriously jeopardizing it, enables us to learn the extent of the conspiracy and, in this case, to get other drugs and other conspirators off the street.

    Mr. COBLE. Thank you. The gentleman's time has expired.

    The gentleman from Massachusetts.

    Mr. DELAHUNT. I would frame it in larger terms. I think, Congressman Barr, I think you are absolutely correct in terms of I do not think there is anybody that wants to endanger national security, and I do not think we will, because I think that we have that as a priority.

    Yet, at the same time, we have concerns given our history, given this natural inclination to distrust Government. That is why a lot of folks ended up here on this continent. But I would suggest that there is a crisis of confidence in the justice system. You know, Ms. MacDonald describes it as a campaign of misinformation, and in part, it could very well be. But it is this whole issue of secrecy and transparency and need for accountability and, again, not just to Congress, but to the American people. And I know that is difficult to balance. I am thinking beyond the PATRIOT Act. And I would address this to the U.S. Attorney.

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    We have a case in my congressional district in Quincy, Massachusetts, the Ptech case, where a firm was subject to a lawful search, and records were seized. The U.S. Attorney issued a statement saying there is an ongoing investigation. There was a lot of publicity surrounding the search itself, not as a result of anything that the U.S. Attorney's Office was responsible for, but for other reasons. People are wondering, what happened? That search occurred, was it some 2.5 years ago now? I think we have got to communicate with the American public that after an event like that occurs and we hear nothing anymore, there has to be some sort of an accounting if we are going to restore confidence in the system itself.

    Mike, would you have any comments about the Ptech case?

    Mr. SULLIVAN. Well, I certainly appreciate your concerns, Mr. Delahunt. And this is a case that is 2.5 years old. And, unfortunately, the fact that this matter was under investigation did somehow get leaked to the media. And this is an instance, quite candidly, where I think the investigation and the company would have benefited by far less public scrutiny during the early stages. We took great pains to notify them of our authority to conduct a search warrant and took great pains to schedule the search warrant. We were not concerned that the documents at that point in time somehow could be secreted away, to do it late at night. Unfortunately, the fact that the search warrant was going to be executed was leaked. And that is how the media and the public ended up getting information regarding Ptech. I only made a public statement after it became public information to reassure the public that there was no reason for public fear at that point in time because of the nature of the investigation.

    But I do agree that, once a matter has become public, it is in the interest of the public to communicate when that matter has been resolved. Unfortunately, some of these cases do take years to reach final resolution.
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    Mr. DELAHUNT. Well, again, and I respect your actions in the case. But it is 2.5 years at this point in time. Do you need any kind of authority to make a public statement indicating that this investigation has concluded—and I do not want to use the term exonerate—but concluded and there is no further action? I mean, I think we owe this to the 50-some odd employees who lost their jobs as a result of the publicity surrounding this particular case and give them, if you will, their reputations back. That, again, I am not in any way suggesting that the company's demise and the tarnished reputations was a result of your actions, but it occurred. And we have got to let the public know at some point in time whether there is anything there, or if there is not, remove the cloud. Do you need any kind of further authorization? Do you have the authority now to do it internally? Because I think it is very important. I use this just as an example, but I am sure that this example could be replicated all over the country in terms of communicating to the people. It goes to the issue of transparency and accountability.

    Mr. SULLIVAN. I believe the U.S. Attorney's Offices across the country have the unilateral authority to make those public statements at the point in time where they feel confident that they can make those public statements.

    Mr. DELAHUNT. Well, again, this goes to 2.5 years. I do not want to focus in on a particular case, but 2.5 years, it goes to the issue I think that you heard caused Mr. Scott concern about indefiniteness. There comes a point in time when the Government at a moment in time has to fish or cut bait.

    Mr. Rosenberg, you are shaking your head. I want to know why you are shaking your head.
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    Mr. ROSENBERG. I am shaking my head, yes, because I think it is a fair point. You mentioned earlier that distrust is healthy, Congressman. I agree with you; skepticism is healthy. And one of the ways in which the Government oversees what we do is both through the judges that review and sign or reject our warrants and through hearings like this where you ask hard questions and, hopefully, we give fathomable answers.

    Mr. DELAHUNT. But if I can indulge an additional minute, Mr. Chairman.

    But in the end, the American people are going to be the arbiters in terms of the integrity of the system. And when there is left hanging there clouds, then that erodes. It isn't just about, if you will, the people that are, if you will, the victims of improper publicity or leaks, but it is the integrity of the system. People are saying, what is happening? You know, whether it be there or—recently I was watching, I don't know, 60 Minutes or something on Sunday, and there is somebody with a new book out about most of the detainees in Guantanamo happened to be there at the wrong time at the wrong place. It does not help America's image abroad, and it certainly erodes the confidence of the American public in terms of the integrity of the justice system. They do not make a distinction between military investigators and the FBI. People do not necessarily make those kind of distinctions. So it is very important, because I would suggest, if we are going to have a healthy democracy, you know, one that we all feel comfortable with, you know, transparency is important, balanced, obviously, with our need for secrecy in terms of enhancing our national security.

    Mr. COBLE. The gentleman's time has expired.
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    Folks this has been a good hearing. I again apologize to each and every one of you for my hacking and coughing. I know it sounded annoying, but I had no control over it. I will waive my second round of questions.

    Let me just say this in summing up: Is the PATRIOT Act a perfect piece of legislation? No. But I do not think it is as onerous and unreasonable as some folks believe. But much of this is subject to interpretation. Many of us on this Subcommittee disagree from time to time, but we usually disagree agreeably. And we are going to get to the end of this row one of these days. And, for your information—I want to mention this—again, I want to thank you all for being here. In order to ensure a full record and adequate consideration of this important issue, the record will be left open for additional submissions for 7 days. Also, any written questions from any Member must also be submitted to you all within that same 7-day timeframe.

    This concludes the oversight hearing on the implementation of the USA PATRIOT Act, sections 201, 202, 213 and 223—strike that. Not 213, because it does not sunset—201, 202, 223 of the Act that addresses criminal wiretaps and section 213 of the Act that addresses delayed notice. Thank you for your cooperation. The Subcommittee stands adjourned.

    [Whereupon, at 11:34 a.m., the Subcommittee was adjourned.]


Material Submitted for the Hearing Record

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(Footnote 1 return)
18 U.S.C. §3103a(b)(3).

(Footnote 2 return)
Oversight of the USA Patriot Act: Hearing Before the Senate Judiciary Committee, 109th Cong. (2005) (Attorney General Gonzales Responding to Senator Feingold).

(Footnote 3 return)
Stephen D. Lobaugh, Congress's Response to September 11: Liberty's Protector, 1 Geo. J.L. & Pub. Pol'y 131, 143 (Winter 2002) (stating, ''The Supreme Court has not ruled on the constitutionality of ''sneak-and-peek'' searches, and only two United States Courts of Appeals have heard such cases.''). A third case, United States v. Simons, 206 F.3d 392 (4th Cir. 2000), relied upon by the Justice Department did not involve a criminal search warrant that the issuing judge approved be kept secret at the time the warrant was executed and the lower court ultimately found that law enforcement did not deliberately disregard the rules in failing to leave notice of the warrant.

(Footnote 4 return)
United States v. Freitas, 800 F.2d 1451, 1456 (9th Cir. 1986).

(Footnote 5 return)
United States v. Villegas, 899 F.2d 1324, 1339 (2nd Cir. 1990).

(Footnote 6 return)
Dalia v. United States, 441 U.S. 238 (1979).

(Footnote 7 return)
Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment §4.8(a) (4th ed. 2004).

(Footnote 8 return)

(Footnote 9 return)
514 U.S. 927 (1995).

(Footnote 10 return)
Oversight of the USA Patriot Act, supra note 3.

(Footnote 11 return)
The USA Patriot Act of 2001: Hearing Before the United States Senate Select Committee on Intelligence, 109th Cong. (2005) (testimony of Attorney General Alberto Gonzales).

(Footnote 12 return)
Department of Justice, Delayed Notification Search Warrants: A Vital and Time-Honored Tool For Fighting Crime, Sept. 2004.