SPEAKERS CONTENTS INSERTS
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REAUTHORIZATION OF THE USA PATRIOT ACT
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
JUNE 8, 2005
Serial No. 10910
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
COMMITTEE ON THE JUDICIARY
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F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
DANIEL E. LUNGREN, California
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
SPENCER BACHUS, Alabama
BOB INGLIS, South Carolina
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
DARRELL ISSA, California
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Page 3 PREV PAGE TOP OF DOCJOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California
CHRIS VAN HOLLEN, Maryland
DEBBIE WASSERMAN SCHULTZ, Florida
PHILIP G. KIKO, General Counsel-Chief of Staff
PERRY H. APELBAUM, Minority Chief Counsel
C O N T E N T S
JUNE 8, 2005
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The Honorable F. James Sensenbrenner, Jr., a Representative in Congress from the State of Wisconsin, and Chairman, Committee on the Judiciary
The Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary
The Honorable James B. Comey, Deputy Attorney General, U.S. Department of Justice
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary
Prepared Statement of the Honorable Maxine Waters, a Representative in Congress from the State of California
Material Submitted for the Hearing Record
Page 5 PREV PAGE TOP OF DOC Indictment of Tarik ibn Osman Shah submitted by F. James Sensenbrenner, Jr., Chairman, Committee on the Judiciary
REAUTHORIZATION OF THE USA PATRIOT ACT
WEDNESDAY, JUNE 8, 2005
House of Representatives,
Committee on the Judiciary,
The Committee met, pursuant to notice, at 10 a.m., in Room 2141, Rayburn House Office Building, the Honorable F. James Sensenbrenner, Jr. (Chairman of the Committee) presiding.
Chairman SENSENBRENNER. The Committee will be in order.
A quorum is present for the taking of testimony. Today marks the Committee's eleventh hearing in a series of oversight hearings on the reauthorization of the USA PATRIOT Act. We are pleased to have with us as our witness today the Deputy Attorney General, James Comey.
Mr. Comey, it is my understanding that you are leaving the Department of Justice, and I would like to thank you for your dedication and service to our country.
Page 6 PREV PAGE TOP OF DOC I would also like to thank Chairman Coble, Ranking Member Scott, and other Members of the Subcommittee on Crime, Terrorism, and Homeland Security, for holding nine of the 11 hearings on the PATRIOT Act. These hearings have been beneficial in informing Congress and the public about many aspects of the PATRIOT Act, and also demonstrate this Committee's continued commitment to taking our oversight responsibility seriously.
As this series of hearings has shown, the PATRIOT Act has been effective in bringing down the wall that prevented information sharing between the intelligence community and law enforcement. It has also updated the tools of law enforcement to match the technology used by the terrorists and criminals today.
In reviewing the authorities of this act, it is crucial to focus on the facts, and not on hypothetical scenarios. In a post-9/11 world, it would be irresponsible to refuse to provide our law enforcement authorities with vital anti-terrorism tools based solely on the possibility that somewhere at some time someone might abuse the law.
Unfortunately, all Government powers have the potential to be abused; which is why Congress provides penalties for such abuse. Additionally, Congress, the courts, and the executive branch have created several protections against abuse before, during, and after the enactment of the PATRIOT Act.
Rather than base the decision on whether to reauthorize the PATRIOT Act on scenarios on how it might be abused, I think it is more constructive to focus our review on how the PATRIOT Act has actually been used.
Page 7 PREV PAGE TOP OF DOC A real-life example on how the tools of the PATRIOT Act have been effectively used involves a recent case of two U.S. citizens, Tarik ibn Osman Shah and Rafiq Sabir, who were arrested and indicted on charges of providing material support to al-Qaeda. This investigation began in 2002, and over the course of 3 years the FBI used several provisions enhanced by the USA PATRIOT Act. So that everybody may see how the FBI used these tools, I am submitting for the record a copy of the indictment which was unsealed on May 31st.
[The material referred to is located in the Appendix.]
Chairman SENSENBRENNER. I am pleased that these hearings have also been effective in dispelling public misconceptions about the PATRIOT Act. For instance, the Attorney General informed us that section 215, dubbed ''the library provision,'' has never been used to obtain business records from a library or bookstore.
However, the hearings have also demonstrated the danger of carving out safe harbors or exemptions that terrorists could exploit. As U.S. Attorney Wainstein testified, the 9/11 terrorists used computers in public libraries to check on their travel arrangements for the day of the attack.
These hearings also corrected the erroneous claim that probable cause was no longer necessary when law enforcement sought court approval for surveillance orders. Probable cause is needed in both a criminal case or an intelligence case. For a criminal case, there must be probable cause that a crime has been or is about to be committed; and for an intelligence case, there must be probable cause that the target of the surveillance is an agent of a foreign power. These probable cause standards existed before the PATRIOT Act, and remain unchanged.
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The hearings also provided the Members and the Department of Justice the opportunity to discuss the adequacy of notice to suspected terrorists and criminals, the need for reporting to Congress, and the ability to challenge the intelligence authorities in court.
The hearing today will provide Members the opportunity to address any issues that remain open and allow the Deputy Attorney General to address any concerns that were raised during the previous hearings. With that, I recognize the Ranking Member, the gentleman from Michigan, Mr. Conyers, for his remarks.
Mr. CONYERS. Thank you, Chairman Sensenbrenner. I'm delighted to be here and welcome the Honorable James Comey, Deputy Attorney General for the Department of Justice. We have your prepared statement, and we look forward to a rigorous discussion during this hearing.
I'd also ask unanimous consent to put my statement in the record at this time, and I'll return any time that I have.
Chairman SENSENBRENNER. Without objection, the gentleman's statement will be placed in the record. Without objection, all Members' opening statements will be placed in the record at this point.
[The prepared statement of Mr. Conyers follows:]
PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN, AND RANKING MEMBER, COMMITTEE ON THE JUDICIARY
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There are few issues that are more important to this Committee or this Congress than the Patriot Act and the war against terror. This not only affects the rights and privacy of every American, but impacts the extent our nation is able to hold itself out as a beacon of liberty as we advocate for democracy around the world.
For many of us, this process of hearings is not merely about whether we should extend 16 expiring provisions of the USA Patriot Act; its about the manner in which our government uses its legal authorities to prosecute the war against terror, both domestically and abroad.
That is why I think its so critical that our Committee hold hearings on the practice of closed immigration proceedings; the sanctioning of torture and abuse; and the widespread use of racial profiling of Arab and Muslim Americans. To avoid issues of this nature is to avoid dealing with the concerns that go to the very heart of our constitutional values and principles in my judgment.
If the Majority is not willing to hold hearings on such issues, I believe fundamental fairness and comity dictate that those Members who have an interest in doing so be able to conduct their own forums, as has always been the case on this committee.
The importance of this issue is also why I believe that at the very least the Members are entitled to answers to their written questions before we markup any legislation. There is no reason in the world that the Department of Justicethe largest law firm in the worldcan't take time to respond to our questions in a timely and useful manner.
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In order to protect the rights of the Minority to a fair process, I am today submitting a letter seeking additional hearings. I of course remain open and hopeful that we can resolve these matter though the ordinary give and take of discussions with the Majority, as we have in the past.
As we move from the hearing process to legislation, there is no member of this Committee who is more interested in developing a bipartisan solution to the problem of terrorism in the 21st century than I am. Events in the Senate make it all the more imperative that we come to the table with a united front to this problem. We came very close to such an approach four years ago, and there is no reason we cannot craft a bill which protects our nation against terrorists, while preserving our fundamental values.
[The prepared statement of Ms. Waters follows:]
PREPARED STATEMENT OF THE HONORABLE MAXINE WATERS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Chairman, the USA Patriot Act has too many provisions that leave the government with too much discretion and power in their application. Furthermore, the Patriot Act provides absolutely no checks on government power and leaves too much room for misuse and abuse of its provisions, which could lead to an unconstitutional application of the law. Therefore, many sections of the USA Patriot Act should be allowed to sunset at the end of the year.
Mr. Chairman, to illustrate, section 215 of the Patriot Act allows the government to seize and search business records and any other tangible things that are ''relevant'' to an international terrorism investigation or an investigation of clandestine intelligence activities. The recipient of the orders to turn over the records, are placed under a gag order, prohibiting them from telling anyone about the search or seizure. This section clearly overreaches.
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In the government's ability to secretly seize and search any records that are ''relevant'' to the investigation, the information the government can seize is overwhelming. For it gives the government too much secret surveillance power. American citizens have the right to be eventually notified that they are under surveillance and section 215 impedes on that right by allowing the government to conduct surveillance, without the requirement of notice, for time periods that are unspecified and unchecked.
Mr. Chairman, another example of the Patriot Act's vast powers is section 206. This provision should also be allowed to sunset. Section 206, allows the government to obtain ''John Doe'' roving wiretaps in foreign intelligence cases. There is no requirement to specify a target or a telephone, and the government can use the wiretaps without checking that the intercepted conversations actually involve a target of the investigation. In addition, these wiretaps are ordered with no requirement to give the target notice that they are being wiretapped. This section is blatantly unconstitutional. It violates the Fourth Amendment by failing to specify, with ''particularity,'' what the subject of the investigation is, again giving the government unchecked power to secretly wiretap a target, without sufficient judicial oversight.
Mr. Chairman, these are just a few of the extreme powers bestowed upon the government through the USA Patriot Act. Without a carefully monitored system of checks and balances, we specifically endanger our individual rights to privacy and due process of the laws. Even though national security has become a top priority since 9/11, we still must not allow our constitutional rights to be so blatantly violated.
Mr. Chairman, as I have stated before, absent an undeniably clear demonstration from law enforcement that these provisions are essential, the relevant sections of the USA Patriot Act must be allowed to sunset at the end of this year. I yield back the balance of my time.
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Chairman SENSENBRENNER. Now it is my privilege today to introduce Deputy Attorney General James B. Comey. President Bush nominated Mr. Comey on October 3, 2003, and he was unanimously confirmed by the Senate on December 9, 2003.
Prior to becoming Deputy Attorney General, Mr. Comey served as the United States Attorney for the Southern District of New York, from January 2002 until the time of his confirmation and his present post. As U.S. Attorney, he oversaw numerous terrorism cases, and created a specialized unit devoted to prosecuting international drug cartels.
Mr. Comey graduated from the College of William and Mary, and received his Juris Doctor from the University of Chicago Law School.
Mr. Comey, would you please raise your right hand and stand up, and I will swear you in.
Chairman SENSENBRENNER. Thank you, Mr. Comey. Let the record show that Mr. Comey answered in the affirmative. Without objection, his written statement will be included in the record as a part of his testimony.
And Mr. Comey, you are now recognized.
TESTIMONY OF THE HONORABLE JAMES B. COMEY, DEPUTY ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE
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Mr. COMEY. Thank you, Mr. Chairman, Mr. Conyers, Members of the Committee. Thank you for this opportunity to come and to talk, but most importantly to listen and to respond to concerns and questions.
I believe that people should question authority; that people should be skeptical of Government power; people should demand answers about how the Government is using its power. Our country, I was taught, was founded by people who had a big problem with Government power and worried about Government power, and so divided our powers and then added a Bill of Rights to make sure that some of their concerns were set out in writing.
I think it's incumbent upon the Government to explain how it's using power, how its tools have been important, how they matter; and to respond especially to the oversight of the legislative branch. I think citizens should question authority, and should demand the details about how the Government is using its power.
I worried very much a year ago that we were never going to find the space in American life to have a debate, a real informed discussion about the PATRIOT Act. Instead, where we had found ourselves was people on both sides of the issue exchanging bumper stickers; people standing around at a barbecue or a cocktail party and talking about all manner of things, and someone saying, ''Isn't the PATRIOT Act evil?'' and people would nod and then go on talking about whether the Nationals were going to be a real baseball team or current events of some sort; and that we were missing a discussion from both sides, a demand for the details and a supplying of the details.
Page 14 PREV PAGE TOP OF DOC I worried very much about that. I needn't have worried. Thanks largely to the work of this Committee and to your colleagues in the Senate, we have had, as you said, Mr. Chairman, a robust discussion and debate about these tools over the last months. And I think the American people understand them better. I think all of us have had an opportunity to demand details and respond to the questions.
I look forward to answering any and all questions, especially those about the details. I believe that the angel of the PATRIOT Act is in those details. The angel is in demonstrating that these are tools that make a difference in the life of this country and in our ability to protect people in this country.
I think the angel is also in the details that demonstrate to folks that the PATRIOT Act is chock full of oversight, in a lot of ways that regular criminal procedure is not; full of the involvement of Federal judges, full of the involvement of the Inspector General, full of the involvement of this Committee and other Committees in Congress to conduct rigorous oversight in response to our reporting about what we're doing.
The bottom line, I believe, is that the PATRIOT Act is smart; it's ordinary in a lot of respects; it's certainly constitutional. We ought to make permanent the provisions that have meant so much to the people that I represent: the men and women in law enforcement and in the intelligence community fighting the fight against terrorism and crimes of all sorts.
So I thank you for this opportunity. I look forward to a robust discussion and debate. And I will try my best to answer any and all questions; and not talk past a question, but respond directly. So thank you, Mr. Chairman. **
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[The prepared statement of Mr. Comey follows:]
PREPARED STATEMENT OF JAMES B. COMEY
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Chairman SENSENBRENNER. Well, thank you very much. The Chair will enforce the 5-minute rule, as he has done in the past. And Members will be called alternatively from one side to the other, in the order in which they have appeared. The Chair will recognize himself and Mr. Conyers first, and I will recognize myself for 5 minutes.
Mr. Comey, section 218, which is the provision of the PATRIOT Act that tore down the so called ''wall'' that inhibited or prohibited the sharing of intelligence information between the CIA and the FBI, was enacted to change the culture that inhibited law enforcement and the intelligence community from sharing vital intelligence and criminal information.
Congress recognized immediately after 9/11 that one of the problems that may have contributed to the successful attacks by the terrorists was the lack of information sharing. This was a problem that previous Administrations and Congresses had tried to address, but failed. The PATRIOT Act succeeded. The lack of information sharing was also criticized by various commissions, including the 9/11 Commission, which was created to examine how the terrorists were able to attack our country.
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We're now considering whether or not to reauthorize and make permanent section 218. Do you believe that section 218 helped tear down the wall that prevented communications between agencies? Should we make this section permanent? And can you give us some specific details on why we had a problem before 9/11, and how this was solved?
Mr. COMEY. Yes, Mr. Chairman, I'd be glad to, and thank you for the question. Section 218 changed our world. It is the one part of the PATRIOT Act that is groundbreaking, earthshaking, breathtaking to those of us who have devoted our lives to this work, because it broke down that wall.
The situation we had before September 11th, as you said, was a situation that didn't make any sense when you're talking about fighting international terrorism. My good friend, Pat Fitzgerald, now the U.S. Attorney in Chicago, was then the chief of the terrorism unit at the U.S. Attorney's Office in Manhattan. And he and a dedicated group of agents in the 1990's were chasing somebody named ''Osama bin Laden,'' whose name was not a household name by any means anywhere in this country certainly. But they knew who he was; they knew what he had done; and they were tracking him.
And in the course of doing that, they were working with informants; they were conducting surveillance; they were obtaining documents. They could talk to foreign police officers; they could talk to foreign spies. Most importantly, they could talk to al-Qaeda cooperators. They brought a couple of guys in from the dark side, and they could talk to them.
There was only one group they couldn't talk to, and that was the group of equally talented investigators and agents, literally across the street from the FBI, who were FBI agents conducting the so-called intelligence investigation of Osama bin Laden and al-Qaeda; conducting surveillance; conducting electronic surveillance; talking to witnessesall parallel to what these bright people on the criminal side were doing.
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And as Pat Fitzgerald has said, a world in which he could talk to al-Qaeda, but not to other members of the FBI, was a world in which we were not as safe as we needed to be.
And I think there's broad support for that, the notion that that's changed our world. Today, when we approach al-Qaeda, if we have an al-Qaeda operative or suspected al-Qaeda sleeper cell in the United States, we conductuse our tools under FISA conduct our intelligence investigations; but we're able to make sure that the criminal prosecutors and criminal investigators are in the loop and able to use their tools to incapacitate these terrorists. And that makes us immeasurably safer.
That is the absolutely most important part of the PATRIOT Act. And if it were to go away, we would go back to a place that people don't want us to be. That changed our world for the better, Mr. Chairman.
Chairman SENSENBRENNER. Mr. Comey, much of the criticism of the PATRIOT Act has been directed at section 215, which is the business records part of the PATRIOT Act. When the Attorney General was here a couple of months ago, he said he was going to propose some amendments to section 215 to address the concerns of the libraries and book stores. Could you detail what those changes are the AG proposes? And also, tell us how many times this section has been used relative to get library and book store records, if you can.
Mr. COMEY. Yes, sir. section 215, as you said, has become known as the so-called ''library provision''something that remains a mystery to me. I tease some of my friends in journalism, to ask them to do an investigative piece to figure out how it came to be called that; because it never occurred to those of us in law enforcement, when we saw that we had a provision that we could obtain tangible thingswhich was defined as books, records, etceterathat people would understand ''books'' to mean library books.
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Regardless, it's become the ''library provision.'' We've never used it in connection with a library or book store, as the Attorney General has said. But the Attorney General has also said that people have made some reasonable comments about section 215, and some constructive criticisms.
Among other things, they've said, ''Look, you guys in Government understand it to be a relevance standard, but it doesn't say that in the statute.'' So the Attorney General has said that we will support adding a relevance standard. That's the way we've operated, and that's what we expect it to be.
Second, folks have said, ''Look, it doesn't make it clear that we're able to talk to a lawyer, and to challenge if we believe the order is over-broad or abusive or something like that.'' And that's a very good point. And as the Attorney General has said, we support putting that in the statute. So, if someone receives a 215 ordermost likely in the real world, a credit card issuer, a hotel company, or a travel record companyand they believe for some reason it's inappropriate, they can talk to a lawyer. And there are procedures in place, and the real power for them to challenge the courtbefore the court that issued that order. The substance of that order. That's reasonable. That's appropriate.
But this is a very, very important tool, and it is a tool that offers far more oversight and involvement of the courts and Congress than our normal tool to obtain records, including records we could obtain from a book store or library; that is, grand jury process.
Section 215 requires that an FBI agent go to a Federal judge, nominated by the President, confirmed by the Senate, who sits on the Foreign Intelligence Surveillance Court, and make a written application for an order to obtain documents. So a Federal judge is involved. Then, requires us to report to Congress every 6 months on how we're using it precisely; what we're using it for; and how many times we've used it.
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There is nothing like that oversight in the thousands and thousands of instances every day where we obtain records using the grand jury process. I think 215 strikes an important balance. It offers oversight and offers a very important tool to the FBI to obtain records in our most important investigations.
Chairman SENSENBRENNER. Thank you. My time has expired. The gentleman from Michigan, Mr. Conyers.
Mr. CONYERS. Thank you, Mr. Chairman.
Several weeks ago, Mr. Deputy Attorney General, Members of the Committee have submitted questions to the Department of Justice, and we've not had any response. And if you could help expedite a response to those questionsthey are all in the record of the some-11 hearings that have been heldwe would be grateful.
Now, let's be frank about this subject that we're on. We've had lots of hearings, but here is the problem. We haven't been discussing much more than the expiring provisions in the PATRIOT Act. Which is fair enough: we've got to make sure we want to keep them, or we want to let them go.
There have been a few added, but let me review with you the matters that have not come before the Committee at this point:
The torture and abuse of detainees, Abu Ghraib, Guantanamo, and other places;
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The outsourcing of torture; that is, rendition, sending people to countries where we know torture is a standard activity;
The practice of closed immigration hearings;
The indefinite detention of thousands of people who responded to the Department of Justice and then end up being kept and held without notification to their families or without them being able to contact a lawyer;
The racial profiling of many of the more than 30 countries with Middle Eastern origins;
And, the use of FISA authorities on non-terrorism cases.
Now, what we are trying to do hereand we're in the process of deciding this within the Committeeis whether we're going to just review mostly the provisions that are expiring, or whether we're going to have an opportunity to look at the whole PATRIOT Act.
And I don't want to take you into ancient history, but I think you know the rather murky circumstances of which the original bill this Committee passed was substituted for a bill that came from the Department of Justice to the Rules Committee the night before it came to the floor. Are you aware of that?
Page 22 PREV PAGE TOP OF DOC Mr. COMEY. No, sir.
Mr. CONYERS. You weren't? Okay.
Mr. COMEY. I mean, I've heard
Mr. CONYERS. I know.
Mr. COMEY.press accounts, but I was not
Mr. CONYERS. Right.
Mr. COMEY. I was happily ensconced as an Assistant U.S. Attorney in Richmond at the time.
Mr. CONYERS. All right. The other matter that I want to bring to your attentionand you may be one of the people that'll have to send the letter back with us giving us additional comments to these questions. I've got two more.
The Department of Justice has failed to bring any criminal prosecutions for the abuse of detainees that took place at Abu Ghraib. In your view, or within your knowledge, does the Department believe that the abuses, the electrocution shocks, the beatings, the humiliations that occurred, were legal?
And my final question is, can you guarantee the Members of this Committee that the Department of Justice is not holding any individual in the war of terrorism, that you're aware of, who is the victim of misidentification similar to that in the Brandon Mayfield instance? The Department held Seattle attorney Brandon Mayfield as a material witness to Madrid train bombing, and the FBI incorrectly identified Mayfield through a fingerprint found on a bag in Spain.
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So those are the questions. My time has expired. And I suggest you spend as much time writing a response, or getting it in any way that you can. I do notWould you allow him to answer, Mr. Chairman?
Chairman SENSENBRENNER. Mr. Comey, you can answer the questions verbally, if you know the answers. And if you don't know the answers, please indicate, and we'll include your written response in the record.
Mr. CONYERS. Thank you, Mr. Chairman.
Mr. COMEY. Thank you, Mr. Chairman. Mr. Conyers, starting with the last one, I am not aware of anyone who's being held anywhere in the Federal criminal justice system based on a case of mistaken identity. If I were to learn of that, I wouldn't be here today. I'd be working to try and fix that.
You're correct; Mr. Mayfield was held, by order of a court, on application of the Government, for 2 weeks, as I recall, as a material witness, based on a mistake.
You asked me if Iwith respect to the abuse of detainees at Abu Ghraib. Based on the pictures I've seen, which I'm sure you've seen, a whole lot of it looks criminal to me. I'm also aware, though, that people are being prosecuted for that in the forum in which the jurisdiction lies, which is, for the military personnel, in the Court of Military Justice.
Page 24 PREV PAGE TOP OF DOC The Department of Justice does have under review at least one matter related to that that relates to a non-military employee. That's the area where we would have jurisdiction. But it's something we take very, very seriously, and pursue very, very aggressively.
And I think that'sI think those are the ones I'm able to answer at this point.
Mr. CONYERS. Thank you.
Chairman SENSENBRENNER. The gentleman from North Carolina, Mr. Coble.
Mr. COBLE. Thank you, Mr. Chairman.
Mr. Comey, you are indeed correct when you said earlier that governmental authority should be challenged and questioned. We have provided many forums for that. Our Subcommittees had nine hearings, as you probably know.
I want to share with you and with my colleagues what happened to me back in my district about nine or 10 months ago. A constituent came to me and he said, ''We've got to do something about this PATRIOT Act.'' He said, ''It's trampling all over rights of everybody here, there, and yonder.'' And I said to him, I said, ''Well, sir, can you give me an example how you have been adversely affected by it?'' ''Well, no, I can't do that,'' he said. I said, ''Well, can you give me an example how anyone you know has been adversely affected by the PATRIOT Act?'' ''Well, I can't do that, either.'' I said, ''Well, you're not helping me any.''
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Now, I'm not suggesting, Mr. Comey, that the PATRIOT Act is a perfect piece of legislation. I am suggesting that much misunderstanding has surrounded it, as was evidenced by my conversation with my constituent.
At one of our hearingsstrike that. At several of our hearings, there were some recommendations, Mr. Comey, that section 220that is, to allow for the recipient, usually an ISP, to challenge a nationwide search warrant in the district where it is issued, or where it is served. As we all know, currently section 220 allows challenges only in the district where it's issued.
Now, at first blush, I don't see a problem here. But do you see a problem where you might have different districts reviewing or examining or authorizing a warrant that may have been issued in one district, served in another; rather than an appeals court making that determination? Do you see a problem if we did in fact amend 220?
Mr. COMEY. Potentially, Mr. Coble, on its face, I agree with you. My first reaction to it was, ''Well, that's not a big deal.'' But it might be a big deal because, first of all, you'd have a district judge, in a district that had not issued it, passing upon it; so not have spent time reviewing it. You wouldn't be going to the judge that had the expertise and had issued the order in the first place. So I'm not sure how efficient it would be from a judicial perspective.
But potentially complicating is the fact that the districts, if they're in different circuits, may operate under slightly different rules that govern suppression hearings, that govern standards to apply when there's a fourth amendment challenge. And so you'd have a tricky question of having one circuit and a district in that circuit trying to evaluate under its standards, or maybe those of a foreign circuit, what the judge had done originally.
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I don't think this is enormously burdensome. It's not a problem that I've heard from ISPs. In my experience, ISPs are fairly sophisticated businesses and don't find it daunting to have, if they want to move to suppress or to challengeexcuse me, if they want to move to challenge a warrant, to be able to do it in a district other than the one in which they're physically located.
I'm not sure anything is broken there, I guess is what I'm trying to say. And I worry that, because it seems on its face like not a big deal, if we made that change, we might bollox up what is a process that's working pretty well.
Mr. COBLE. I thank you, sir. Another suggestion at one of our hearings involved publicly announcing how many reporting requirements or inquiries were made. For example, ''X''-number of inquiries were presented to a book store, as opposed to five to a library. Now, I don't want to seem paranoid, Mr. Comey, but I don't want to give anybody who wants to do harm to us any information that might in fact be beneficial to them.
We in the Congress receive this classified information already. Do you see any advantage to making this information as public knowledge?
Mr. COMEY. That's a hard question. And we get beat up all the time and accused of being paranoid for over-classifying and not wanting to release numbers. And as was discussed earlier, the Attorney General took the step, as Attorney General Ashcroft did, to declassify some numbers.
Page 27 PREV PAGE TOP OF DOC The reason we don't want to have those numbers out there is not because we're looking to hide them; especially from Congress, because Congress is going to get them anyway. We just don't want to give any additional clues to the bad guys; especially when the bad guys are terrorist groups that really, really want to do horrific damage in the United States.
And so people say to me all the time, you know, ''What's the harm if you declassified the number on a regular basis?'' And I turn it around a little bit and say, ''Well, there may not be any harm, but given the nature of what I do, shouldn't there be a really good reason to tell the bad guys how often I'm using a tool in this place or in that place?'' Sometimes I can't figure out how it would help them exactly, but they're pretty clever people who are not only clever, but willing to die to kill people.
Mr. COBLE. They're clever people, Mr. Comey, who want to kill you, and they're willing to kill themselves to make a point.
Mr. COMEY. Yes, sir. And that makes me proceed very, very cautiously.
Mr. COBLE. Thank you, Mr. Comey. Thank you, Mr. Chairman.
Chairman SENSENBRENNER. The gentleman's time has expired.
The gentleman from California, Mr. Berman.
Mr. BERMAN. Well, thank you very much, Mr. Chairman.
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General Comey, as I mentioned to you in my office, I have a number of concerns about actions that aren't part of the PATRIOT Act, but relate to unilateral actions taken by the Administration on issues that fall squarely within the jurisdiction of this Committee; even though in these areas we haven't at this point offered input.
I'd like to talk to you about four of these areas. One of them is detention of non-citizens without notice of charges. The second is the blanket closure of immigration proceedings by the so-called ''Creppy memo.'' The third, automatic stays of bonds. And the fourth, denial of individualized bond hearings.
What each of these policies has in common is that they are all a one-size-fits-all policy applied in immigration cases across the board, whether or not they involve matters of national security, and with little or no balance in terms of due process.
I've raise these issues in previous hearings, and Attorney Generals have acknowledged we need to improve and mistakes were made. I think at the time, as we consider the sunset provisions in the PATRIOT Act, I'd like to get past the acknowledgement of errors and into a discussion of solutions.
Mr. Delahunt and I introduced the Civil Liberties Restoration Act, where we tried to strike a balance, without taking away any of the powers the Department has that they believe are vital to the war on terror. I think we've found a solution on each of these issues. I'd like to hear your thoughts on them.
Page 29 PREV PAGE TOP OF DOC First, on the issue of notice of charges to detained non-citizens, we provided in section 412 of the PATRIOT Act a way for you to hold aliens suspected of involvement in terrorism for up to 6 months without approval of a judge, subject only to issuance of a writ of habeas corpus, as long as they were given notice of the charges against them within 7 days.
As far as we've been told, that power has never been used. And instead, it was circumvented in favor of a policy put in place before the PATRIOT Act that allows people to be held for indeterminate periods of time with no notice of charges.
Our bill would leave section 412 undisturbed, but replace the policy the Department put in place with a requirement that a notice to appear be served on every non-citizen within 48 hours of his arrest or detention, and that those held for more than 48 hours be brought before an immigration judge within 72 hours of arrest. You'd still have the 412 authority to hold for up to 7 days, and then to keep in detention in cases of suspected terrorism, espionage, and other provisions set forth in 412.
Second, the Creppy memo, the blanket closures of immigration hearings following September 11. On this policy, the Civil Liberties Restoration Act would end the across-the-board closure, but would still authorize closure of all or part of an immigration hearing when the Government can demonstrate a compelling privacy or national security interest.
Third and fourth are two issues that I'd like your thoughts on, also. They deny bond to whole classes of non-citizens, with no individualized hearings before a judge, is one of them. And another that enables a Government lawyer to unilaterally nullify a judge's order to release an individual on bond after finding that he is neither a flight risk nor a danger to the community.
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On the blanket denial of bond issue, the CRLA [sic] would make a shift from a one-size-fits-all policy to a case-by-case approach, to provide detainees, except those in categories specifically designated by Congress as posing a special threat, with an individualized assessment as to whether the non-citizen poses a flight risk or a threat to public safety.
And finally, on the automatic stays of bonds, our bill would permit the Board of Immigration Appeals to stay the immigration judge's decision to release an alien for a limited time period, when the Government is likely to prevail in appealing that decision and the board finds there is risk of irreparable harm in the absence of a stay.
So I'd be, one, interested in your comments on this and, secondly, I would in the context of dealing with the PATRIOT Act at the point where we get to marking up, would like the opportunityeven though these aren't specifically PATRIOT Act provisions, but they all are directly related to the events and actions taken after 9/11have a chance to see if we can rectify the balance somewhat. Thank you.
Mr. COMEY. Thank you, Mr. Berman. And as you said, these are not PATRIOT Act issues, per se; which is one of the challenges we have in dealing with the PATRIOT Act. Folks sort ofyou know they're not, and I know they're not, but people tend to lump them together. But they're important issues, nonetheless.
Mr. BERMAN. And I take your point about the confusion out there as to what is or isn't. It's quite widespread.
Page 31 PREV PAGE TOP OF DOC Mr. COMEY. Yes, big challenge. And I pretend to know a lot about a lot of things. The one I will not pretend to know a lot about is immigration laws. I think I confess to you. But I can comment on a couple of these.
Maybe revealing that I am a short-timer, I never liked the blanket closure of immigration proceedings, because it's a one-size-fit-all approach. And if our lawyers can demonstrate that it ought to be sealed, we'll get that from the judge and so I thinkand that's where we are now. We proceed on a case-by-case basis. To say all of a certain class must be closed, frankly, is not smart, and makes us take a hit that we don't need to take. I mean, if we can demonstrate it, let's demonstrate it. If we can't, let's have it be an open hearing.
With respect to your concerns about due process, my understanding, which is non-expert, is that there are no immigrants who are arrested on immigration charges who are held without notice of their charges; that there is a requirement that they brought before an immigration judge to have an applicationopportunity to apply for bond and to have notice of the charges. It may be what
Mr. BERMAN. What about the Inspector General's report?
Mr. COMEY. Well, the Inspector General found in the practice in the months after September 11th that there were a whole bunch of people who were sort of held until cleared, and that was a screw-up; that that was not consistent with what the policies and procedures that the regulatory regime lays out are.
My understanding of what the regulatory regime is is that you have to haveit's sort ofthere's a lot of due processI was frankly surprised when I tried to educate myself on itthat people have an opportunity to appear promptly before a judge, to apply for bond, to obtain counsel if they wish, to contact family members; and that the problems that the IG found were that procedures were not followed; and that people were held in kind of a limbo state that was inappropriate; that they were not given notice of why they were held, they didn't have a reasonable opportunity to contact counsel or family members. And those are things that were the subject of the IG's report. But I'm not sure the procedures are broken.
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Mr. BERMAN. Well, I'd like to take a chance at some pointnot nowto show you
Chairman SENSENBRENNER. The gentleman's time has expired. Mr. Comey, you can answer the questions that Mr. Berman asked before the red light went on, but there are a lot of other Members that would like to have a shot at you, too.
Mr. COMEY. Okay. I think I tried to, and I'm sure the Departmentexperts in the Department will have an opportunity to offer views on those particular provisions. Mine would be too uninformed to add more, I think.
Chairman SENSENBRENNER. And with that, the gentleman from Texas, Mr. Smith, is recognized.
Mr. SMITH OF TEXAS. Thank you, Mr. Chairman.
Mr. Comey, thank you for your testimony, and also for your answers to the earlier questions. I'd like to ask you about a subject that was dealt with in your written testimony, but that hasn't been mentioned so far today. And that is the question of sunsets.
Several people have suggested that, rather than eliminate the sunsets, we simply extend the sunsets; particularly in regard to section 218. Why would that be a good or bad idea?
Page 33 PREV PAGE TOP OF DOC Mr. COMEY. It would, in my opinion, be a very bad idea to continue the sunsets, generally; but particularly with 218. Because what 218 does is foster cultural change, whichall of us work in big institutionsis enormously difficult in big institutions.
And I worry very much that if we hung out there the prospect that the destruction of the ''wall'' might be reversed, we will never get people to embrace the idea that we need to have everybody communicating, sharing information in the counterterrorism realm.
We've made great progress. Somebody who went to Mars in the summer of '01 would not recognize our counterterrorism operation today. But we need to do better. And 218 is what has given us the space to knit together everybody who matters in counterterrorism. And if people thoughtsort of like living in a house you think someone might come and kick you out of: You're going to maybe not unpack your stuff, because you might get kicked out. And I don't want people to think they're going to get kicked out of 218.
Mr. SMITH OF TEXAS. So you oppose any sort of continuation of any sunsets, whatsoever?
Mr. COMEY. I do. I think the answer, though, is rigorous oversight. I think we ought to be dragged up here and drilled and asked, ''How are you using this power? Why does it matter?'' on a regular basis. I don't think we need sunsets to do that, for you to scrub how we're conducting ourselves. And I support that.
But the sunsets send a message that there's no permanence to these important tools, and that undercuts the ability to get the bureaucracy to embrace them and to understand they're part of our arsenal.
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Mr. SMITH OF TEXAS. Okay, thank you, Mr. Comey. My next question deals with a television advertisement that has been run by the ACLU, that claims that section 213 of the USA PATRIOT Act allows law enforcement to search out homes ''without notifying us;'' implying that this provision gave Federal law enforcement the authority to conduct searches without ever providing notice to the individual whose property is searched. Is this an accurate description of section 213?
Mr. COMEY. No, sir, it is not. And it's one that I've spent a lot of time talking to folks about, and it's driven me a bit crazy.
We have had for yearsdecadesdelayed-notice search warrants in this country. That's what we in law enforcement call them, because it's accurate. You don'tthere's never a circumstance when you're doing a criminal search that you never have to tell that the search was conducted. What was the circumstance before the PATRIOT Act is that in a limited set of circumstancesI would estimate probably 50 times a year in the whole countrya judge would give you permission, based on a written showing of probable cause and a written warrant, to conduct a search and simply delaynot get rid of, but delay telling the bad guys that you were there; to save lives, to preserve evidence, to protect witnesses.
The PATRIOT Act simply enshrined that in black-letter law so we have the same standard across the country, and gave judges the ability to set periods of time that they believe reasonable, based on their knowledge of the facts, to delay notice. It will be given.
I have personally usedand I won't take the time herebut I've personally used delayed-notice search warrants many times, and I think that in the process we've saved lives, in my career as a prosecutor. And if we lost that tool, anybody who understands itand I think people at all points understand itwould realize we were less safe.
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Mr. SMITH OF TEXAS. Okay. Thank you, Mr. Comey. One last question, and this deals with section 201. If 201 were allowed to expire, is it true that criminal investigators could obtain a court-ordered wiretap to investigate mail fraud in obscenity offenses, but not offenses involving weapons of mass destruction?
Mr. COMEY. Yes. It would return us to the criminal predicate list that supported wiretaps that existed before, and I don't think anybody wants that. We need to be able to use that tool, certainly in the fraud and child pornography cases, but also where the stakes are impossibly high.
Mr. SMITH OF TEXAS. Okay. Mr. Comey, thank you very much. Those are very good answers to my questions.
Chairman SENSENBRENNER. Thank you. The gentleman from Virginia, Mr. Scott.
Mr. SCOTT. Thank you. Mr. Comey, it's good to see you again.
Mr. COMEY. You, too.
Mr. SCOTT. You mentioned in your opening remarks that there is certain language that is not helpful in promoting an honest dialogue about this legislation. Would that include language such as, ''To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists; for they erode our national unity and diminish our resolve''?
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Mr. COMEY. I may be a short-timer, Mr. Scott, but I would prefer not to focus on anybody's words in particular. Any words that chill aggressive questioning of Government authority I think are not helpful. As I said in my opening, I think people should demand to knowall points of the political spectrum. I think Republicans should have as big a problem with Government power as Democrats.
Mr. SCOTT. You recognize the words?
Mr. COMEY. I've heard them before, yes, sir.
Mr. SCOTT. You mentionedyou explained how in section 215, what we're calling the ''library provision,'' you went to great lengths to explain how the judge was involved. Is that an important part of 215?
Mr. COMEY. I believe it is, yes.
Mr. SCOTT. On roving wiretaps, when you have gotten probable cause, not that a crime has been committed, but the probable cause that the target is an agent of a foreign governmentwhich means you can get the wiretap without probable cause of any crime, just that you're trying to get intelligence information which may not be criminal, just, you know, information on a trade deal, something, no crime as a predicateand then you expand this as a roving wiretap, is it important that you ascertain before you start listening in that the target is actually in the location where you've placed the bug?
Page 37 PREV PAGE TOP OF DOC Mr. COMEY. It may be important as a practical matter, because we don't want to waste time. But in intelligence investigations, given the nature of the people we're following and surveilling, both with spies and terrorists who are trained to look for us and to be very careful, I'm troubled by an ascertainment requirement; which would require us, as you said, Mr. Scott, as we do in the criminal context, to know that the target is the one on the phone or the target is the one near the bug.
Mr. SCOTT. Well, I say this because we've heard from witnesses before, like the Attorney General, that some of theseyou know, we reduced the standard from the purpose of the wiretap being foreign intelligence to a significant purpose, which invites the question: If it wasn't the purpose, what was the purpose? And the answer, of course, is you're running a criminal investigation without probable cause.
Now, since you're running a criminal investigation, isn't it important that the people you're listening in are actually targets of the wiretap? I mean, you could put these all over town where the target may be using the phone. If he leaves, shouldn't you stop listening?
Mr. COMEY. Well, you'd like to, because you don't want to waste the time, but the way
Mr. SCOTT. Well, no, no. No, you're not wasting time. You're listening in to people you wanted to listen in to. I mean, because you're running the criminal investigation under the auspices of this less strict standard of foreign intelligence. Should you be able to take advantage of the criminal investigation with the lower standard by listening in, when the target isn't even there?
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Mr. COMEY. Well, first of all, you'd better not, if you work for me, be conducting an investigation to obtain criminal information using FISA unless the following is true: Significant purpose, as you said, Mr. Scott, is to obtain foreign intelligence. And if there is an additional purpose to obtain criminal information, it's only criminal information related to foreign intelligence crimes, terrorism crimes or espionage crimes. That's what the FISA court of review has told us is the law, and so we'd betterwe are following the law.
Mr. SCOTT. Well, we changed the law under the PATRIOT Act.
Mr. COMEY. Well, I've heard that said, but the court of appeals that governs this has said you may only collect information of foreign intelligence crimes if that's an additional purpose to the collection of foreign intelligence.
But the ascertainmentthe way we collect intelligence information, we strike a balance. Because of the nature of the target, we stand off a little bit more. We collect, and don't necessarily review real-time what's being collected. And we account for that with the rules that govern the storage and dissemination of that information. And that's a balance that's been struck to recognize that criminal investigations are different, and I think it's a reasonable one.
When you drill down and look at the way we follow spies and follow terrorists, it would make it much more difficult to operate intelligence investigations if the agents were required to ascertain in every circumstance that the target is there at the bug or there on this particular phone.
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Mr. SCOTT. Could you
Mr. COMEY. Rather than collecting and minimizing it later, and strictly controlling what you do with U.S. person information. I'm sorry, sir.
Chairman SENSENBRENNER. The gentleman's time has expired.
The gentleman from Virginia, Mr. Goodlatte.
Mr. GOODLATTE. Thank you, Mr. Chairman. Mr. Comey, welcome. We are pleased to have your testimony today. Looking at section 217, some have suggested that in order to better protect privacy, it should be more difficult under section 217 for a computer owner to seek the assistance of law enforcement in monitoring hackers who are trespassing on his or her computer.
I believe, however, that we must be also concerned about the privacy rights of those who are being victimized by the hacking. And I wonder if you could please explain how hackers threaten the privacy rights of law-abiding Americans, and how section 217 has assisted the Justice Department in protecting privacy.
Mr. COMEY. I think of the computer today, sort of the cyber world, as like our house. I mean, so much of yourso much of my business, I think of all of our business, including our children's business, is in that computer and online that I think of it like a house. And what 217 allows us to do isif a bad guy breaks into the house, the person who owns the house can invite the police to come in and help catch the bad guy.
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All of us knowI know, because I've tried to get some of this software on my computer to stop people from hacking and taking over passwords and taking over my accountthat this is a scourge that we deal with all the time. That's on an individual level.
If a hacker gets into an Internet service provider, it's not just my house. It's as if we all live in one enormous condominium, and the bad guy is in there, able to open all the doors and take all of our stuff. We think that it's very, very smart law enforcement to allow the owner of that condominium to call ''911'' and say, ''Cops, get in here, help me find this guy who's somewhere in here rummaging through people's belongings.''
If you make that more cumbersome, I just think you make it harder to catch the bad guys in that sort of electronic house, if that makes any sense.
Mr. GOODLATTE. It does. The Department of Justice has informed the Congress that the September 11th terrorists utilized our public libraries before they killed 3,000 of our citizens. Yet some are proposing to exempt libraries and book stores from providing business records that are relevant to a terrorist investigation. And I wonder if you could tell us, if section 215 were amended to exempt libraries, what would be the effect?
Mr. COMEY. Oh, gosh. I think an effect that nobody really wants. We don't want to create sanctuaries any placeno less librariesfor bad guys, especially terrorists. But we have a big problem with pedophiles going to libraries, fraudsters going to libraries. We've had spies in libraries. And we know terrorists go there, because it's Internet access and they think it makes it harder for us to follow them and to know what they're doing.
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If we ever sent a messageand I worry, to be frank, that we've sent that informally, with some people posting signs at libraries saying basically that, ''We scrub the hard drives,'' or ''Be careful''that we move toward creating a sanctuary for this kind of activity. And nobody wants that. Librarians don't want that. Nobody wants that.
What people want to discusswhich is reasonableis what's appropriate for the Government to be able to collect information in that forum and others? And I'm happy to discuss that.
Mr. GOODLATTE. To your knowledge, have there been any abuses of the section 215 powers?
Mr. COMEY. No, absolutely not.
Mr. GOODLATTE. Have there been any substantiated reports of abuse of the 18 orders that have been granted under section 213 for delayed notification search warrants?
Mr. COMEY. No. And as I said earlier, that's a tool that's supervised by Federal judges. And I've spent my life with Federal judges of all stripes, and they are pretty good overseers.
Mr. GOODLATTE. Some have used section 213 and other provisions of the PATRIOT Act to scare the public, claiming that this is a new authority that allows law enforcement to enter your house and secretly search it. The implication appears to be that section 213 eliminated the existing probable cause requirement that a crime is or is about to be committed. Is section 213, that authorizes delayed notice, a new authority, or a codification of existing court decisions?
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Mr. COMEY. Codification of existing court decisions, and a practice that's been approvedin fact, was developed by Federal judges, and concluded to be reasonable under the fourth amendment. I used it as an Assistant U.S. Attorney before it was in the PATRIOT Act, to do a search, to save lives, when a drug gang was coming into Richmond, Virginia.
Mr. GOODLATTE. And it does not change the standard for obtaining a search warrant?
Mr. COMEY. Oh, no. It still requires a written demonstration based on a sworn affidavit that makes out probable cause, and a written search warrant affidavit from the judge. All the judge does is makes a determination that, ''Because of the danger here, I will let you delay notice for a brief period of time.''
Mr. GOODLATTE. Let me get one more question in. In evaluating the need for roving wiretap authority in FISA investigations, I think that we need to take into account the ability of potential targets to evade surveillance. Based on your experience, do terrorists and spies attempt to thwart surveillance? And if so, how skilled are terrorists and spies at thwarting surveillance?
Mr. COMEY. Thwarting surveillance is their stock in trade. They are, unfortunately, very good at it. When you're talking about spies, you're talking about people that other governments spent lots of time and money training to stay away from us. Terrorists do the same thing. Al-Qaeda trains its people to deceive; to avoid; to hide.
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It is an authority that is important when you're talking about drug cases. And that's why Congress gave it to us in the 1980's, because drug dealers were slippery characters. You can't compare in slipperiness drug dealers to terrorists and spiesorders of magnitude different. If we need these tools for drug dealerswhich we doboy, we sure need it for terrorists and spies.
Mr. GOODLATTE. Thank you, Mr. Chairman.
Chairman SENSENBRENNER. The gentleman's time has expired.
The gentleman from New York, Mr. Nadler.
Mr. NADLER. Thank you, Mr. Chairman.
General, first of all, before I ask my questions, let me say I want to associate myself with the comments of the gentleman from California, Mr. Berman. It seems to me that what he was driving at, the need for specificity in some of these with some of these tools, really defines the difference between due process and arbitrary power. And much of what we're doing, or what we're dealing with, is very high risk of the use of arbitrary power; which is un-American, our tradition. And that's what we're getting at.
Last week, at a Subcommittee hearing, Mr. Matthew Berry, the counselor to the Assistant Attorney General for the Office of Legal Policy of the Department of Justice, introduced the following hypothetical dealing with national security letters.
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He said, suppose investigators were tracking a known al-Qaeda operative, and saw him having lunch and conversing with an individual. Mr. Berry explained that such a situation would meet the relevance standard required for the FBI to issue a national security letter under section 505 of the PATRIOT Act.
Now, let's take this hypothetical further. That person has been tainted and could be usedcould be the target of a national security letter, of an NSL, for sitting next to a known al-Qaeda operative and politely making small talk. Sit down in Starbucks next to who knowsokay.
Now, let's say that they were having lunch at the food court. From the food court, she walksthe person who happened to sit next to the al-Qaeda operativeto Barnes & Noble right there at the mall. Can the FBI then be justified in using a self-authorized NSL to demand records on her from the book store?
She then walks to a jewelry store and purchases something. Could those records be sought using an NSL? She then decides to leave the mall, and walks to her car. Can the FBI get her records using an NSL from the car dealership or the rental agency?
She drives to the public library, and there uses a computer to make travel plans through the online agency. Using a national security letter, can her private records be sought from the public library, the Internet server, the travel agency? You get the point. How far do we extend this?
Page 45 PREV PAGE TOP OF DOC Furthermore, would the people she came into contact with during this time also be tainted with suspicion and be subject to NSLs, given their supposed relevance to a national security investigation?
The records we're talking about are very private and sensitive. They show a person's private life and, as such, should enjoy a rather high standard of protection. Would you support legislation reestablishing the standard that the information sought be based on specific and articulable facts that suggest that that information pertains to a foreign power, or to one or more of its agents? Or are we on an open-ended fishing expedition that extends to the known universe, as apparently my hypothetical would seem to suggest?
Mr. COMEY. It's a very good question. And the same point is made not just with respect to NSLs, but with respect to 215.
Mr. NADLER. Absolutely. But the NSLs seem to me even more Government arbitrary power than 215.
Mr. COMEY. Because there's no judge involved, especially.
Mr. NADLER. No judge at all, that's right. It's just a field agenta field office of the FBI.
Mr. COMEY. My concern with raisingwith putting a ''specific and articulable facts'' standard; or some have suggested ''reasonable articulable suspicion;'' others have gone so far as to say ''probable cause,'' which I know you're not suggesting
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Mr. NADLER. Although I've thought of it.
Mr. COMEY. Okay. I hope you don't suggest it. I'm trying to think of real-life examples, and the one I come up with isand it's fair to draw those kind of hypotheticals outis Mohamed Atta's roommate. So I keep focusing on, what if I had these tools before September 11th, and just after September 11th I found out that a guy had lived in Mohamed Atta's apartment, but I knew nothing else about him. What reasonable investigation would I, as a career prosecutor, want to conduct?
I would tell the FBI I want his credit reference record, I want his bank records, I want his travel records, I want his phone records. And what do I know, besides that this guy lived with a really bad guy? Do I have specific and articulable facts that justify, that show that these records are going to be
Mr. NADLER. But where do you draw a line? What if he sat down in Starbucks and talked to somebody. That was the hypothetical given us by the counsel to the Assistant Attorney General.
Mr. COMEY. Right.
Mr. NADLER. I mean, we hope we don't live in the world of the wonderful show that I like to watch every Monday night, ''24,'' where anything goes. I mean, yes, any suspicion based on anything, if there are no standards, if the king can give a writ of assistance to anybody in 1760, yes, it might help an investigation. But you have to have some protection.
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Mr. COMEY. Yes.
Mr. NADLER. Where do you draw that?
Mr. COMEY. And it's a show that always shows the prosecutors as the real namby-pambies.
But it's a hard question to answer. I cling to the relevance standard. I don't believefirst of all, I'm not sure you could obtain some of those records under NSLs, given the limitations on the material that they can obtain. But they wouldn't be relevant. But I worry, if you import this. And I'm not saying it's unreasonable to suggestwhen you put that standard in
Mr. NADLER. Let me ask you one further question before my time runs out. In Doe v. Ashcroft, the New York District Court held NSLs unconstitutional because the issuance of these letters is accomplished without any judicial review and are subject to an indefinite gag rule. Given this decision, do you agree that additional legislation may be warranted?
Would you work with this Committee to legislatively clarify that an NSL recipient has the right to challenge both the requests and the gag orders in court? Would you support a congressional effort to permit the recipient of an NSL to disclose receiving such a letter in order to comply with the request, and/or to consult with legal counsel?
Page 48 PREV PAGE TOP OF DOC And finally, would you have a problem with Congress setting a 90-day time limit for the gag orders based on exigent circumstances, with the possibility of 180-day extensions available from the court of appeals?
Chairman SENSENBRENNER. The gentleman's time has expired, and the witness will answer the question.
Mr. COMEY. We will work with you on all of that. I know there is legislation that's pending to address some of those. I don't think we've taken a position on it. But a lot of it is smart and reasonable.
I don't have that same feeling about the 90-day/120-day. Given the nature of the people that we're dealing with in intelligence investigations, I think the balance has to be struck in favor of indefinite. And at some point
Mr. NADLER. How about that for conditional renewals?
Chairman SENSENBRENNER. The gentleman's time has expired.
The gentleman from California, Mr. Lungren.
Mr. LUNGREN. I thank the Chairman. And I thank Mr. Comey for the open and forthright way with which you are facing this. And obviously, we wouldn't be here discussing the PATRIOT Act or the sunset provision, had it not been for 9/11. And sometimes we have to remind ourselves of that.
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I was reminded of that today when, in my home district, we received news of a father and a son charged with lying to Federal agents about the son's alleged training at an al-Qaeda camp for a mission that the judge said was to ''kill Americans whenever and wherever they can be found.''
I'm not sure we've ever faced that before with a transnational organization that has indicated it is the duty of all those who have allegiance to the same beliefs they have to kill Americansmen, women, and childrenwherever and whenever they can be found.
Having said that, there is this concern about the PATRIOT Act; whether it's real or imagined, whether it's perception or reality. And for that reason, I lean toward putting sunsets in this legislation; not because, Mr. Comey, I want to upset the cultural change that's trying to take place in the Justice Department. But I point to a cultural change that's needed in the Congress.
I think we're doing a tremendous job of oversight here, I think this Committee is. And I think that we have had good cooperation with the Department of Justice. But oversight has not been the strong suit of Congresses in the past. And I wonder whether we would be as vigorous if we didn't have the obligation of this. And some of us have a feeling that not only is it something necessary to effect the cultural change on the executive branch, but also the legislative branch.
Do you truly think that if we had sunset provisions for section 215, for instance, and some of the others, that that would be a real interference with what you're accomplishing and what you hope to accomplish in the future with the changes brought about by the PATRIOT Act?
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Mr. COMEY. The honest answer is I don't think it would be a disaster. But here's another reason why I don't think it makes sense. And I'm not in any position to talk about oversight, except that, as I said to the Chairman, we have seen, I think, remarkable oversight, as you noted, here.
Chairman SENSENBRENNER. The Chair thanks you for that comment. I think some of your predecessors in your office would not have done so.
Mr. COMEY. Well, the one thing I can tell you, thoughand it's hard for me to put this into words without seeming small in my remarksbut we have devoted huge resources and time to this, as we should. But we have hundreds''hundreds'' is fairof people working on what we've done over the last 6 months, and spending countless hours collecting information, responding, meeting.
That's an enormous drain. And it should be. But I hope it's a rare drain, and that we use it to establish that the base line is sound; that what Congress did in Septemberafter September 11th was sound; and that what we can do going forward is rolling, and not in a way that makes everybody and his brother in the Department of Justice work on the effort.
We live in a bit of a myth, and that is that we have limitless resources. We don't. And it is a major challenge for us to do this. And we're happy to do it, because it ought to be done. I justto be very frank, and I won't be here, it would be really hard to do this 3 years from now, or another 2 years from now, when we can substitute for it something that I think is as effective, which is rigorous oversight.
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Mr. LUNGREN. Well, it sort of begs the question of whether we would have rigorous oversight
Mr. COMEY. Yes.
Mr. LUNGREN.if we didn't have this requirement. And you have talked about the tremendous number of hours that have been put into it, precisely because the Department thinks it's important to have this reauthorized. And precisely because many of us think it's important to have it reauthorized, we are spending the time to do that.
I guess, let me ask a question about a specific section, section 212, which allows computer service providers to disclose communications and records in life-threatening emergencies. Number one, has that proven to be successful and useful? If so, could you provide some real examples of that? Also, have there been any substantiated reports of abuses of section 212?
And then, it's my understanding that that section does not require judicial intervention. Is there a problem with an after-the-fact judicial review to see if in fact there was an emergency circumstance that required this?
Chairman SENSENBRENNER. The gentleman's time has expired. Would you answer the question?
Mr. COMEY. Yes, Mr. Chairman. Section 212 is the life-saver. That's how I refer to it, because it's not used much in those circumstances, but I met a young girl, 16 years old, fromher parents brought her to meet me and the Attorney General from just outside of Pittsburgh, who had met some whacko on the Internet and he had lured her to meet himshe not knowing exactly who he wasand then kidnapped her and brought her and locked her in a dungeon in, I believe, the western part of the State of Virginia. And she was saved with 212.
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And I won't take the time to explain all the details, but an Internet service provider was able to provide information, because this whacko sent an e-mail to one of his fellows bragging about that he had this girl in a dungeon. And they were able to provide the FBI with instant information on where he was, and they rushed in there and they saved this girl's life. And I was able to shake her handhad my picture taken with herbecause of 212.
The proposal for judicial review, I'm not exactly sure how that would work. And I worry that it would tie up 212, because it's an emergency situation where the ISP is able to call the policealmost like the house is on fireand provide the information. And I'd have to think through more carefully exactly how post-hoc judicial review would work. I have a hard time sort of figuring it out on the fly.
Chairman SENSENBRENNER. The gentlewoman from California, Ms. Lungren [sic].
Ms. LOFGREN. Actually, it's ''Lofgren,'' not ''Lungren.''
Chairman SENSENBRENNER. It's ''Lofgren.'' [Laughter.]
I'm sorry. I should know better.
Ms. LOFGREN. Thank you, Mr. Chairman. And thank you, Mr. Comey. I, to some extent, agree with the comments that we need to cool down the rhetoric on the PATRIOT Act. I think we're here, and it's important that we're here, to review the details not just of the sunsetting provisions of the act, but all of the act.
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And yet, having said that, there are people in the country that everything they don't like they believe is because of the PATRIOT Act. And I constantly challenge, ''Where in the act is this misbehavior?'' There's things I don't like, too, but it's not all in the PATRIOT Act.
At the same time, I think it's a terrible mistake to criticize those, or to question the patriotism of those who are legitimately engaging in oversight to make sure if we have preserved the balance between our civil liberties and our need to have vigorous law enforcement; which is what we're doing here today.
Along those lines, I want to go back to section 215. In your testimony, you state that the FISA court has issued 35 orders, but that none were issued to a library. At the same time, you say if we exempt or change 215 relative to libraries, you know, it's the end of the world. The roof will fall in; terrorists will make libraries safe havens.
And I guess I'm skeptical of that. And I'm wondering if there isn't some intermediate provision that would assist with the anxiety that is afoot in the land. People are afraid that their reading habits are going to be interfered with. Their first amendment rights are in fact being chilled today, because of what people think is happening, even if it's not happening.
And so the question I have is, why not require that personally identifiable information be exempt from section 215? It is true that anybody can go in and use a computer terminal in a library, and they can do good things or bad things. But the libraries I've been to don't keep track of who's on the terminals, and it's not personally identifiable. Could you answer that question?
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Mr. COMEY. Yes, I'd be happy to. Something is broken, but I thinkand I may be impossibly naivebut I think it's people's understanding of 215, and not 215. And if what's broken is their understanding, I'm going to work till I have no more breath to try and fix that; rather than change 215 just because folks don't understand it.
Ms. LOFGREN. What about the personally identifiable information exemption?
Mr. COMEY. I don't know why we would do that, though, because that wouldI don't think the sky would fall, but you would create a sanctuary in those particular places. Because a bad guy would know, ''That's a place I can go.''
Ms. LOFGREN. Well, I mean, you can still get the information, if it's personally identifiable; just not through section 215.
Mr. COMEY. If we couldn't use 215 to obtain information that we could tie to a particular person, say, we were followingagain, this is the kind of thing that doesn't happen, but if we were following a terrorist, and he was sitting at a computer terminal, and we wanted to get the records, his records, and we had done something that made it impossible for us to obtain records that told us they were his, I don't know why we would do that. And I don't think librarians would want that.
Ms. LOFGREN. Let me ask another question. And it goes back to our need to review the whole situation, not just what is being sunsetted. I guess in a way it goes back to the earlier comment about oversight and how much time and effort is being put into answering the questions that Congress has posed. And I assure you, I don't question that you are putting in a considerable amount of time.
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But after the Attorney General, Mr. Gonzales, appeared before the Committee, I had two questions that he was not able to answer on the spot. One had to do with section 218, how many prosecutions for non-terrorism-related crimes had been a result of this section; and then further, about the material witness section, under 3144 of 18 U.S. Code, how many individuals actually ended up testifying before a grand jury.
I neverhe wasn't able to answer it on the spot, which I can understand. I never got the answer afterwards. Do you know the answer today? And if not, will you promise to get me the answer?
Mr. COMEY. I don't know the answer, and I will promise to get you the answer. And I can do that with some confidence, because I know it's being worked on very hard. They're collectingwe're going out to the field to collect the information so that we can supply it.
Ms. LOFGREN. Finally, I just want to mention that we did not suspend habeas corpus in the PATRIOT Act. And yet, the detention of American citizens without charge, without access to counsel, has been referenced to the general action we took to authorize the invasion to enact the PATRIOT Act. Shouldn't we make it explicitly clear in any reauthorization that we are not suspending habeas corpus?
Mr. COMEY. I don't knowcertainly, no one that I know has argued that Congress has suspended habeas corpus, and in fact
Page 56 PREV PAGE TOP OF DOC Ms. LOFGREN. Then you wouldn't mind if we made that clear in the act?
Mr. COMEY. Well, I suppose I wouldn't mind. I mean, I don't know how the legislative process works. But habeas corpus is alive and well in this country. And in fact, the litigation you're referring to is pursuant to the habeas corpus, the great writ, and being decided by the courts now, whether the Government has that authority.
Mr. LUNGREN. [Presiding.] The gentlelady's time has expired.
The gentleman from Texas, Mr. Gohmert, is recognized for 5 minutes.
Mr. GOHMERT. Thank you, Mr. Chairman. And I appreciate your being here, Deputy.
First of all, I want to address something that was brought up earlier very quickly. And that is the so-called abuse or torture some people referred to, whether at Abu Ghraib or Guantanamo. And I'm deeply offended when I hear that individuals indicate that Abu Ghraib was some type of gulag. They need to go back and read the accounts of what happened to our fly-boys in the Pacific in World War II, when they had internal organs removed to be cannibalized by their captors; or had holes drilled in the head while their brain was probed while they were alive, to see what parts responded to what probing; to have bones repeatedly broken; to be handcuffed from behind and be hung by the wrists.
These people that think that we are running gulags either have their head up an earthen or biological hole somewhere. I'm concerned.
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But anyway, also to read in a local tabloid today that a former President believes we should close Guantanamo, when perhaps he didn't protect the country when we had American soil attacked and our own people taken hostage and nothing meaningful was done for over a year to ever try to get them out, I have to take that with a grain of salt.
So with that background and defense of the Nation and things we're doing, there have been abuses. Having been in the military, I know the UCMJ takes care of those. It is taking care of the abuses. They are abuses. They're not torture. And I've talked to POWs of ours who indicate just that. They would have welcomed having the abuse rather than the torture and hell they went through, for example, at the ''Hanoi Hilton.''
So anyway, with regard to 215, though, would you have a problemyou know, I understand this AG's office and this DOJ believes that individuals that get the order to produce records, or even NSL, that's been interpreted as meaning they have a right to counsel and can talk to their own attorneys; isn't that correct?
Mr. COMEY. Yes, sir.
Mr. GOHMERT. But that's not written in the law, as I see it or find it. Would you have a problem with that being written in, so future AG offices or DOJs would understand you can consult your own attorney when you get this letter; you're not just, you know, blindfolded and having to produce records. Do you have a problem with that?
Mr. COMEY. No, sir. We agree with you on that.
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Mr. GOHMERT. Well, I know that I understood that was your position, as far as interpretation. But it seems for future reference it would be good to have that in there.
I do still have concerns about 215. And I trust implicitly this AG's office, this DOJ. But like in 215, where it says, you know, to get the order from the judge it just has to specify that records are sought for an authorized investigation, that could be to protect against clandestine intelligence activities.
Hypothetically, if you had a President, an Attorney General, or DOJ top officials, that believed, perhaps hypothetically, there was some right-wing conspiracy out there to undermine or hurt the Presidency, and that they may be involved in clandestine intelligence activities, it just seems like the potential is there for using this in ways that it was not intended by an abusive President or an AG.
You might hypothetically even have a DOJ that's so callous that they may just find a friendly judgeand we know some judges are more friendly to one Administration than anotherfind a friendly judge that wasn't supposed to hear a case, just to go get an order to kidnap a child at gunpoint from people that are holding them. I mean, those kind of things might actually happen.
So I'm concerned about removing the sunset review. You won't be there next time. But just so that there is that kind of attention. You foresee that possibility, if you're not there, there is somebody that could abuse their position?
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Mr. COMEY. It's a very good point, Congressman. And I think all of us should worry about how authority could be abused. I think with 215, though, there are safeguards that are important to emphasize. One is that you've got to involve the FISA court; not just any Federal judge. You've got to go to the FISA court
Mr. GOHMERT. To the FISA court.
Mr. COMEY.selected by the Chief Justice of the United States. But beyond that, you've got to put it in writing. And then you've got to tell Congress every 6 months in a written report how you're using it, what you're using it for. And I think those are checks and balances that are very important and that are there to check against just the kind of thing you're talking about.
We're a nation of laws, not men. We shouldn't rely on that we like the folks that are in the office. I agree with you. But I think those checks are in place to check that power, and they're appropriate.
Chairman SENSENBRENNER. [Presiding.] The gentleman's time has expired.
The Chair recognizes the gentleman from Michigan, Mr. Conyers, for a unanimous consent request.
Mr. CONYERS. Thank you, Mr. Chairman. I ask unanimous consent that the gentlelady from Florida representative, Debbie Wasserman Schultz, soon to be a Member of the Committee, be permitted to participate in today's oversight hearing, and that it will not constitute a precedent.
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Chairman SENSENBRENNER. Without objection, so ordered. And the gentlewoman from Florida is recognized.
Ms. WASSERMAN SCHULTZ. Thank you, Mr. Chairman. And thank you, Ranking Member Conyers.
General Comey, you made a reference earlierand I also want to ask a question about section 215to pedophilic activity, and that you would hate to see pedophilic activity be able to continue, or to continue unchecked, if a change was made in 215. But I mean, my familiarity with library activity is such that pedophilic activity has been going on before 9/11 and since 9/11, and there aren't many foreign terrorists who are engagingusing libraries to engage in pedophilic activity.
In fact, you have been able to utilize grand jury subpoenas and your authority that existed before 9/11 to go after that kind of activity. So in fact, Ted Koczynski was apprehended as a result of your ability to examine library records and subpoena them before 9/11.
So why did you need the provisions in 215 to go as far as they did, and what are you not ablewhat will you not be able to do if they are changed? Thank you.
Mr. COMEY. Thank you for the question. You're absolutely right. I made reference to pedophilia simply, I think, to try to buttress the broader point: that we don't want any particular place to be a sanctuary for criminal behavior. But you're absolutely right; 215 is about foreign intelligence crimes.
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We could always use, as you said, the grand jury process to go after regular crooks, big-time crooks, pedophiles, if they were using libraries; and we have. Section 215, what it does is it gives that grand jury criminal power to intelligence investigators. But makes it harder for them, because unlike a criminal investigator who wants to use a grand jury subpoena, who could come to an Assistant U.S. Attorney and get the grand jury subpoena, by the PATRIOT Act Congress made the intelligence investigators who want the same records have to go do it in writing, and do it to a Federal judge, and get a written order. And that makes it harder for them. And that's a judgment of Congress, and that's fine. But I think a lot of times when people focus on 215, they don't realize how we do it in the criminal context, as you said.
Ms. WASSERMAN SCHULTZ. And I agree with the gentlewoman from California when she talks about the balance that we need to strike. I strongly support much of the provisions in the PATRIOT Act. This is the most disturbing provision. It's the provision that I hear the most about, unsolicited, when I'm not even talking about the PATRIOT Act at home. At town hall meetings people bring up their concern about the library provision.
The two other questions I have is, why did we need to give special powers to the FBI in those investigations, without at least first making the FBI show some proof that the person might be an agent of a foreign power? I mean, I realize they have to go to the FISA court, but they don't really have to show much of anything that their suspicion is that they're an agent of a foreign power.
Mr. COMEY. Right. They have to showand we've always understood the statute to say this, but it's not explicit, so it's one of the things that we would support addingthat the records sought are relevant to a foreign intelligence or foreign counterterrorism investigation.
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The reason that they don't have to show more than that is this is a baseline investigative tool; and that, as Mr. Nadler and I were discussing, if you raised the threshold to make it more challenging, you have to make a higher showing to get basic records, you're going to thwart a lot of investigation you don't want to thwart.
And the food court example is not mine, but it's if you saw someone in a restaurant and had an animated conversation with a Mohamed Atta, what do you know about that person? Not much, but you want to know an awful lot. And if the threshold is raised, that you have to have some baseline facts before you can start gathering baseline facts, you thwart an investigation in a way that I don't think any of us want.
And when you drill down and think about how folks actually conduct these investigations, grand jury subpoenas and 215 orders have to have the same standard; which is relevance. That's how we get started to see whether someone is bad. Or in many, many cases, what we're doing is investigating and clearing somebody, because we've received one of the many poison pen e-mails we get saying, ''My neighbor is a terrorist.'' We have to check that out. And what do we know, besides somebody wrote it anonymously? We don't. But we check it out, and when it turns out to be bogus, that's the end of the matter.
Ms. WASSERMAN SCHULTZ. Well, and the last part of my question relates to the gag orders. I mean, why do we have to have gag orders on those who receive the orders related to the library records and other provisions of 215? I mean, that seems to cloak the whole thing in secrecy.
Page 63 PREV PAGE TOP OF DOC Mr. COMEY. Yes. No, and that upsets folks. The reason is the same reason we have automatic gag orders, for example, in the thousands of bank subpoenas we issue in criminal investigations every year. Banks can't tell the account holder, by statute, that we've subpoenaed the records.
The reason we have that there and we have it on the 215 side is so the bad guys don't know we're looking at them, and so good peopleand this is not something to be ignoredso good people don't get ruined.
If we walk into an institutiona credit card company or hotel recordand serve a subpoena or a 215 order, check out one of these tips that someone's a terrorist, if that clerk who gets it can tell people, we may ruin a good person by doing that. So secrecy has two purposes: protect the bad guys from knowing we're coming, and protect the good guys from being ruined. And both of them are very important to the way we do our work.
Chairman SENSENBRENNER. The time of the gentlewoman has expired.
The gentleman from Florida, Mr Feeney.
Mr. FEENEY. Well, thank you, Mr. Chairman. And first, I'd like to welcome, I guess a day or two ahead of time, our possible new colleague on the Committee, Congresswoman Wasserman Schultz. We have a long history in Florida together. And I want to warn my colleagues on this side of the aisle that we can expect some lively and engaging discussions and debate with the gentlelady. And we're glad to have her here.
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We thank you for your testimony. I had a question I'd like to start with that maybe you cannot answer. And that concerns a trial ongoing now in Florida with respect to Professor Al-Arian, who is accused of a number of crimes related to international terrorism. And I'd like you to tell us, if you can, what portions of the PATRIOT Act were helpful in this specific investigation. And also, describe, if you will, the charges against Mr. Al-Arian.
Mr. COMEY. Congressman, as you mentioned, I have to be very careful
Mr. FEENEY. Yes, I understand.
Mr. COMEY.with a jury sitting in Florida right now, hearing that case, about what I say. I think I can safely say he's been indicted for providing material support to terrorism, and that there's been public litigation that much of the evidence that the Government is intending to offer in that prosecution stems from informationevidence obtained through foreign intelligence surveillance. I really ought to stop there.
Mr. FEENEY. Okay. Well, I appreciate that, and I understand the caution.
A lot of us who are civil libertarians by instinct and concerned about Government power are supportive of the PATRIOT Act. We want to revise it where it needs to be revised. Some of us like the sunset provisions. I understand that you'd like to see some of those, if not all of them, repealed. But you know, the point is that over America's history, at times of national duress and threat to the very national existenceI mean, the Civil War, for examplecivil liberties have been strained. And there is a balance that moves back and forth.
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Matter of fact, the Bill of Rights anticipates some of that when it talks about outlawing unreasonable searches and seizures. And presumably, what's reasonable during a period of time where there are little or no threats is different than what is a reasonable search during times of threats. Matter of fact, Chief Justice Rehnquist has a great book out on the history of civil liberties during times of duress, called ''All the Laws But One,'' which he wrote a good 12, 14 years before the terrorist attacks.
But having said that, the PATRIOT Act is subject to a lot of myths out there. And if you hadyou know, when I get accosted on the street, just like, you know, my Subcommittee Chairman mentioned, people blame all sorts of ills that they experience, whether it's at airports, or discomfort, on the PATRIOT Act, which of course have nothing to do with the PATRIOT Act.
If you had 30 seconds or a minute to explain the difference between the PATRIOT Act reality versus myth to the American people, how would you convince us that much of what it has been blamed for is simply not related to or the fault of the PATRIOT Act itself?
Mr. COMEY. Thank you, Congressman. The first thing I would do is urge folks, all walks of life, who have concerns about the PATRIOT Act to demand the details. Always, always, always ask. When someone says, ''The PATRIOT Act is evil,'' say, ''What do you mean, specifically? What part of it? And how is that different from what they can do in a criminal investigation? And so you're saying the PATRIOT Act does what?''
The reason that's so important is it has become a vessel into which people pour concerns about all manner of stuff that has nothing to do with the PATRIOT Act. And I think if everybody demands the answerdoesn't just shake their head like one of those bobble dolls when someone says, ''Isn't the PATRIOT Act evil?''they will find out that the stuff people are talking about either is not in it, or what's in it is reasonable, ordinary, and smart. Because it's mostly taking what we can do to track drug dealers and thugs, and give those tools to people tracking spies and terrorist. And then, something breathtaking; which is the destruction of the wall, the separation between counterterrorism intelligence and counterterrorism criminal.
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And if folks will simply demand the details, as hard as it can be, I think at the end of the day they're going to see there's an angel in those details.
Mr. FEENEY. Finally, has the standard for the demonstration that you have to establish under FISA's 207 as to who is an officer or employee of a foreign power, has that changed under the PATRIOT Act? And what is that standard? Presumably, the bad guys' versions of ''James Bond'' don't come register as a foreign agent or employee. What do you have to establish, and has that changed under the PATRIOT Act?
Mr. COMEY. We have to establish probable cause to believe that someone is an agent of a foreign power. And that can be a foreign power as commonly understooda foreign stateor a foreign terrorist organization that the court has found to be a foreign power. So probable cause to believe that. Or, that someone is engaged in clandestine activities, intelligence activities, on behalf of a foreign power.
My understanding is that was the standard under FISA before. It's the standard that the FISA court's been applying since 1978. And it requires a written showing of probable cause. And the reason I keep repeating that is folks don't realize that. People are always telling me, ''Oh, you have a different, lower burden in FISA.'' Huh-uh. It's the same probable cause we use to get arrest warrants and get search warrants.
Chairman SENSENBRENNER. The gentleman's time has expired.
The gentlewoman from California, Ms. Waters.
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Ms. WATERS. Thank you very much, Mr. Chairman.
And I'd like to apologize if this question has already been asked or discussed. I thank you for being here. I'm concerned about the national security letters. And I'm not clear about whether or not the Justice Department continues to use national security letters, or whether or not the court decision thatI think it was in the Southern District Court of New York.
Mr. COMEY. Yes, ma'am.
Ms. WATERS. Decided that perhaps these NSLs were in violation of the fourth amendment, and maybe the first amendment. I'm concerned whether or not you continue to use NSLs, whether or not you're appealing the court decision. And if you are, why do you think it's important to have them?
The ability to use NSLs gives you awesome power to demand, command, all kind of personal information, without judicial review. It's another form, I guess, of administrative subpoena, without having to get the same kind of review that you would get under the normal administrative subpoena. So where does the Department stand on these NSLs at this time?
Mr. COMEY. Thank you. I think the answer isor I can tell you what I know perhaps for certain. The Government is appealing to the Second Circuit Court of Appeals Judge Marrero's decision in the Southern District of New York. That I'm certain of. I'm quite certain that the judge's order was stayed, pending the appeal. And so there is no order presently in effect forbidding their use.
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So I expectalthough as I sit here, I haven't been involved in issuing anybut I'm quite certain that they continue to be used, because they're very, very important. It's a limited class of information that can be obtained with an NSL. As I understand it, limited to credit information, financial institution information, or telecommunications records, phone, Internet records. And that's very, very important stuff for the FBI's counterintelligence and foreign intelligence investigators.
Mr. NADLER. Would the gentlelady yield for a second?
Ms. WATERS. Yes, I'll yield.
Mr. NADLER. You're aware that under legislation that we passed last year, financial institutions, for NSL purposes, means almost anything now? I yield back.
Ms. WATERS. Thank you. Oh, did you finish?
Mr. NADLER. Yes, I think so. The knowledge.
Ms. WATERS. It is my understanding that we changed the standards so severely that we could have innocent people who come in contact with people who may be suspected of being an agent, who then would be subject to NSLs.
The last time we had someone here from your department, I used the food court example, where you innocently sit in a public place and get involved in a conversation with someone that you don't know, just out of courtesy, and then become an object and suspected of having some relationship to someone. And then, all of a sudden you are subject to an NSL.
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And I wanted you to continue the discussion, to tell us why you think it's so important, even if you end up violating the privacy of innocent people.
Mr. COMEY. Yes, ma'am. Mr. Nadler had me in the food court. It's sometimes hard for people to hear, coming from a prosecutor, or it sounds odd to them. We don't just investigate the guilty. We end up investigating a lot of people who turn out to be innocent. And that's true in the criminal arena; which is understandable, if you sort of focus on what we do. Even if we're investigating a fraud, we know the fraudster ran a company. And we need to know, well, did those around him at the meetings with him, were they in on it.
And a lot of them may turn out, no, they didn't know about it. Those are the truly innocent people. Or they may be people we just decide we can'tthere isn't enough evidence to charge them, and so that goes away.
It's true, as well, in the intelligence and counterterrorism context. As I mentioned earlier, we get a lot of what I call ''poison pens''letters, e-mails, phone callstelling us that neighbors and friends and, in many, many cases, former spouses and former significant others, are spies and terrorists. We have to check that out. We have to investigate that. We would be drilled if we didn't and one of them turned out to be a bad guy.
And so we have to investigate people all the time based on our belief that information about them will be relevant to an investigation. The food court example is a good one, although Mr. Nadler had excellent hypotheticals to tease it out. If we saw someone having dinner with, sitting in a food court, talking in an animated way with Mohamed Atta, you're darn sureand everybody in this room would want us towe're going to figure out who that person is. And we may use an NSL, we may use 215, we may use a grand jury subpoena. We need to know more about them. And we'd probably start with a credit check.
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Ms. WATERS. Well, if Mohamed Atta was in the
Chairman SENSENBRENNER. The gentlewoman's time has expired.
Ms. WATERS.in that food court, I would suspect that you should have caught him before that.
Chairman SENSENBRENNER. The gentleman from Virginia, Mr. Forbes.
Mr. FORBES. Thank you, Mr. Chairman. And Mr. Chairman, thank you for holding this hearing.
Mr. Comey, I want to thank you not just for your substantive knowledge of the PATRIOT Act, but for the articulate way that you've been able to explain to us some of the myths that we have been hearing about it.
Piggybacking on what Congressman Feeney said, I've seen few measures that have had more misinformation than the PATRIOT Act; some of that unintentional, much of it intentional. So I thank you for clearing some of that up.
One of the areas is section 213. And I know that you've talked a lot about that today, but specifically I was wondering, just two aspects of that, if you would clarify for us today. On the delayed notification of search warrants, it's my understanding you still need judicial review and approval. And I was wondering if you could just tell us for the record what the Government needs to show to get delayed notification.
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And as part of that, I know that one of the justifications is that it wouldgiving contemporaneous notice would seriously jeopardize the investigation. And there are some arguments that that perhaps is too broad of a scope. And I wonder if you would just respond to that as you explain the Government's burden.
Mr. COMEY. Yes, sir. Thank you. Under the PATRIOT Act, which codified existing practice over 40 years before that, the Government has to go to a Federal judge, make a written showing of probable cause based on a sworn affidavit. The judge has to conclude there's probable cause to search, and issue the warrant. The judge will only give the Government permission to delay noticenot suspend notice, but delay noticeif the judge concludes that one of five things is true. And those are the five categories in the PATRIOT Act: one of them being ''seriously jeopardize an ongoing investigation;'' another one being ''that lives will be at risk;'' ''that there will be witness intimidation, flight, destruction of evidence,'' as I recall them, serious events in the course of an investigation.
And it's a tool that, as before the PATRIOT Act, we don't use much. As I said, I think we use it about 50 times a yearonce for each State, once a year. We use it when it really, really matters; when people are going to get killed, bad guys are going to flee, people are going to get hurt. If we have to tell them that we were the ones who went into the drug house and took their drugsinstead of having them think it was stolen by rival drug dealersif we tell them we went in, they're going to know who the informant was, and they're all going to flee.
Folks have said that ''seriously jeopardize'' is too broad, and inappropriate. I don't think so, and in fact I don't think Federal judges have found that. We've provided to Congress examples where that provision was the one where judges found a basis to delay notice of a search warrant. And it's one that judges have used sparingly, that we've used sparingly; but when it matters, it's a tool we really need.
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Mr. FORBES. Thank you, Mr. Chairman. I yield back the balance of my time.
Chairman SENSENBRENNER. The gentleman from Iowa, Mr. King.
Mr. KING. I thank the Chairman. And I want to thank the gentleman for his testimony before this Committee. It has been enlightening. And it's important to have this Committee informed. It's also important to have much of the presentation in the record.
I would just make a statement and ask your reaction to this, and that's with regard to the PATRIOT Act. The allegations that it either violates constitutional rights or allows for the violation of constitutional rights, rights to privacy or civil liberties, would you say that that allegation has become an urban legend in this country?
Mr. COMEY. Yes, sir, I would. I say when I speak publicly it's become part of the drinking water. So much so that we have two groups in this country when you go out and meet real folks: those who think it's okay that there's been a tradeoff of liberty for security, and those who think that's not okay. And I always propose to the group: Could you open your mind to the possibility that there ought to be a third groupof which maybe I'm the only member
Mr. KING. I'm with you.
Mr. COMEY.that there hasn't been a tradeoff. But it's so much part of the drinking water that people think you must have smoked something before you came into the meeting. That's absolutely true.
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Mr. KING. Well, it's clear you have not. And I appreciate that, particularly being able to articulate that in a fashion more clearly than we have heard before, I believe, before this Committee.
In your mind, is there a particular definition of a terrorist that you're looking for, that helps you narrow the focus from this mass of information that you have, for one thing? You spoke to the information thathow do you sort through all that? How do you identify where to target your investigations?
Mr. COMEY. We work from known facts. I think sometimes people imaginemaybe folks who watch ''24''that we somehow zoom over with a satellite and look for bad guys everywhere. What we do is capture an al-Qaeda guy; find out what's in his pockets; find those phone numbers; find out whose phones those are; find out where those people are, who they might know, to tryjust the way we do criminal investigations. We start from a known fact, a known bad guy, and we try and figure out who's connected to him.
And that's why, to respond to the concern earlier, we have to end up looking at peoplemaybe he called a particular number 15 times. We have to check that out. We may find out it's the Domino's pizza place, but it's incumbent upon us to check that out.
That's how we work. We start with a known fact, with a known bad guy, and try and figure out where the web is, where the connections are. Because our goal is prevention. We need to find those, especially those who are here looking to harm us, but then those around the world who are looking to come here to harm us.
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Mr. KING. Are there distinctions between the approach to terrorists, and al-Qaeda in particular, from the investigation and prosecution of the Mob? Are there some things there that transpose across into terrorist investigations that are very similar?
Mr. COMEY. Very, very similar. And it's why some of the best counterterrorism investigators started out as La Cosa Nostra, Mafia investigators, because they are used to secretive organization, bound by an oath''bayat'' in al-Qaeda, ''omerta'' in La Cosa Nostra; and I've done Cosa Nostra work. And it's a web of connections where people are looking to conceal themselves in ordinary businesses: ''I'm just a butcher,'' or ''I'm just ayou know, I just sell clothes for a living,'' when you're really a Mob guy.
And those skills, the ability to put together networks and connect, and flip people, develop sources to move up the chainsame tools we use in the criminalon the counterterrorism side.
Mr. KING. And there are common denominators there that would be maybe family relationships, business relationships, ethnicity, religion, those kind of things, as well?
Mr. COMEY. Yes. All those things that connect good people also connect bad people, and help us understand who are the potential bad guys close to the known bad guy. That's the work we do. And we try to use all tools at our disposal to incapacitate. With Al Capone, we used spitting on the sidewalk, tax charges. We do the same with counterterrorism.
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Mr. KING. And one of the things that I would think would be part of the initiative would be to keep the terrorists out of the United States. And I would point out that, to our records, 1,129,000 were apprehended coming across the southern border in the last year. The most consistent number I hear is that for every one that's apprehended, two make it throughthat would be roughly three million-plusto here. They may or may not have gone back. In that huge haystack of illegal immigration that's pouring across this border, how can we ask you to find the needles that are the terrorists?
Mr. COMEY. That's a very, very big challenge, and a thing that's of great concern to us, great concern to the Department of Homeland Security. It is an obsession of ours, and it should be.
Mr. KING. I thank you very much for your testimony, and I yield back the balance of my time.
Chairman SENSENBRENNER. The gentleman's time has expired.
The gentleman from Arizona, Mr. Franks.
Mr. FRANKS. Well, thank you, Mr. Chairman. And thank you, General Comey. I am one of those who is constantly having to explain to constituents, you know, some of the urban legend that you spoke of earlier. And so let me just ask you firstyou know, sometimes a policy is measured in the context of the experience that you have with it. Having said that, do you have any examples or any indication or research that shows where people that were truly innocent victims have been caught up in a misapplication or perhaps as a result of some flaw in the PATRIOT Act?
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Mr. COMEY. No, absolutely not. And I mean that. I mean none. We have a very aggressive, very talented Inspector General at the Department of Justice. And it's his job, under section 1001 of the PATRIOT Act, to receive complaints and investigate them, of abuses of the PATRIOT Act. And our record is perfect in that regard.
The Mayfield case from Oregon was mentioned earlier, where the fellow was arrested as a material witness and held for 2 weeks based on a mistaken identification of his fingerprint from a bag in a van near the Madrid bombings. But that's not the PATRIOT Act. I mean, he was detained under the material witness provision, which has been a part of the criminal code for many, many years.
But under the PATRIOT Act, I'm very confident in saying there have been no abuses found; none documented. Plenty alleged, but most of it turns out to be stuff that, again, has nothing to do with the PATRIOT Act.
We had a lady call in and say there was a line across the top of her television screen, and she thought that had something to do with the PATRIOT Act. And you know, we get a lot of stuff like that. And it all goes to the Inspector General, and he has to decide what to do with it.
Mr. FRANKS. Well, General, you know, sometimes the example that's given, that with the people in power now, there's a great deal more comfort level with a given policy; but should those people changeyou know, you articulated it very well yourselfyou never know who will gain the reins of power at some point.
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I think that today, as we consider terrorists, we're not concerned at all, in a sense, that England may have the nuclear capability to essentially devastate us, because they're friends, they're people that we trust. But of course, if an al-Qaeda or someone like that gained even one nuclear capability, then we would be very, very concerned. So who is in power is of preeminent consideration.
Having said that, if the wrong people got in powerand I realize the wrong people can ultimately subordinate and twist any policybut if the wrong people did somehow get into power, that had no real concern or respect for the kind of civil liberties that we have grown to enjoy, what do you see, personallyand this is a bad question to ask, but what do you see, personally, as the greatest weakness contained within the PATRIOT Act, or the greatest opportunity for it to be misused at some point?
Mr. COMEY. That's a great question, Congressman. To start with the premise, I agree with you completely. I said this to Senator Craig in the Senate. I don't think it came out the way I meant it. I said to him, ''You shouldn't trust me.'' I mean, I didn't mean that. I mean, you should, and I trust me, and I like the people who lead the Justice Department and the Executive Branch now.
But I meant that, when I say we are a country of laws, not men, we can't devise the systems based on who's in the office; because you could have other people there. But second, good people make mistakes when under great pressure. I mean, if, God forbid, there's another attack in this country, there will be tremendous pressure from the American people to respond to it. And we need these laws and this oversight in place.
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I think the greatest risk is thatto pick on something Congressman Lungren saidthat oversight won't mean anything; that gradually the culture will drift to a point where people doing this work understand that nobody in Congress reads the reports, and so just, you know, send them up there; that there's no real check.
We need a check on our power. I do. And I need to know that someone is going to look at what I do. It helps me. It helps me when I'm tired not to make a mistake. It helps me when I'm over-eager sometimes not to make a mistake.
So if there's a risk, I think the PATRIOT Act is chock-full of what we need: judges, inspector general, and oversight. But if the culture of that drifts and 5 years from now it's sort of a myth, or 10 years from now nobody even looks, you could have problems. Because it happens. We have a history of it happening.
Mr. FRANKS. Well, that's kind of a segue into my last brief question here. Given the fact that you consider oversight so important, I know that, as I understand, the Department itself hasI won't use the word ''vacillated,'' but something along those lineson this review, this sunset that would occur at some point. And it occurs to me that that's a good idea; even though my own perspective has developed in this situation. You know, I've come to
Chairman SENSENBRENNER. The gentleman's time has expired.
The gentleman from Massachusetts, Mr. Delahunt.
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Mr. DELAHUNT. I thank the Chair. And I apologize for not being here sooner, but there's a markup going on. And I welcome Mr. Comey.
I'm just going to make an observation that I think segues into what I anticipate as the observation that was going to be made by the gentleman from Arizona, and your comments earlier. I happened to catch your reference to congressional oversight as being a check, if you will, on behavior of the executive branch. And I agree with that. And I know you're sincere in that comment.
And I also want to acknowledge that there has been very good input from the Department of Justice during the hearings by the Crime Subcommittee on the reauthorization. And I should commend the Chair for directing Chairman Coble in conducting those hearings. I think it's been very fruitful.
And I think that there's the potential for some consensus on some of the substantive issues. But I've said this publicly at these hearings, and let me just repeat it once more. I think there's a natural disinclination on the part of the executiveand I'm not referring specifically to the Department of Justice, but to all executive agenciesto cooperate on an ad hoc basis, when it suits their particular agenda, with Congress.
I look back 4 years now, when we were in the process of passing the PATRIOT Act. And as you well know, it came out of this Committee with a 36-to-nothing, unanimous vote; which was extraordinary. It subsequently was changed, to the chagrin of some of us. But I keep hearing the comment from witnesses and from others saying that, ''We have to make this permanent.''
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After, I think, eight or nine hearings by the Crime Subcommittee, I am now convinced that that would be a mistake, to make it permanent. In fact, I would go so far as to insist, or at least make an effort to have a sunset attached to the PATRIOT Act, and maybe to other pieces of legislation that come before this Committee for its considerations. Because it does really secure the cooperation of the Executivein this case, the Department of Justiceto be much more forthcoming and to be much more cooperative. Your response?
Mr. COMEY. It's not an unreasonable thing to say. The reason I would urge that we not do that is a number of things. I think, as I said earlier, that especially with some of these tools, if you sunset them again we will never be able to get people to completely buy that the world has changed, particularly on information sharing. We're trying to change a culture, which is like turning a battleship. And if people think, ''Well, Congress might just take away the tug boats, then why are we all going to work to turn that battleship?'' That's one worry.
The second is, I think the tools are in there. And maybe, you know, I overestimate the ability of oversight to get it done; but I don't think so. I mean, I think that, with the power of the purse and the power of legislation, this Committee and the others have the ability to haul us up here and demand to know what we're doing. And if we're not giving you the information, to have some consequences for that. I think that's a far better way to proceed.
Mr. DELAHUNT. Let me reclaim my time. Because I really want to let you know that I disagree with you. Okay? And it's been the experience, I believe, of this Committee in a variety of different areas, not just the PATRIOT Act itself, but where the lack of cooperation has been frustrating, aggravating, and on different occasions has required rather strong action, not just by the Chair of this particular Committee but by other Committees, to secure cooperation. And if we don't have some leverage, we're not going to get it. That's been the conclusion that I've reached as a result of my experience here.
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Chairman SENSENBRENNER. The time of the gentleman has expired.
Mr. DELAHUNT. Would the Chair indulge me for an additional 30 seconds?
Chairman SENSENBRENNER. I will. Proceed.
Mr. DELAHUNT. In addition to the incentiveand I understand the culture change that you're talking aboutyou know, if the tug boats aren't thereI think that was your metaphorI just want to encourage and incentivize the Department of Justice to keep the tug boats running well. That's what I see as the incentive. We're watching, and we do have leverage.
And as long as those tug boats are steaming, and steaming well, and not going off course, are charting a course that we can all embrace and be proud of as Americans with our cherished core values of civil liberties and privacy, then fine. But we're going to incentivize.
Chairman SENSENBRENNER. The time of the gentleman has once again expired.
Mr. Comey, thank you very much for coming here and for your testimony. I would like to echo the words of Mr. Delahunt. I believe that in the last year and a half the Justice Department has been much more forthcoming on the PATRIOT Act and on other issues than in the two and a half years prior to that.
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And this Chair has both publicly and privately expressed to former Attorney General John Ashcroft that an ''I've got a secret'' attitude on legitimate oversight that does not involve classified information is self-defeating.
I would like to salute both you and Attorney General Gonzales. I think that there has been a change in attitude that has been particularly marked in the hearings that we've had on this. You help your cause by coming up here and answering questions in the way that you did, and the way that your boss did a couple of months ago. And I hope that continues.
Thank you very much for coming. The hearing is adjourned.
Mr. COMEY. Thank you, Mr. Chairman.
[Whereupon, at 11:55 a.m., the Committee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
INDICTMENT OF TARIK IBN OSMAN SHAH SUBMITTED BY F. JAMES SENSENBRENNER, JR., CHAIRMAN, COMMITTEE ON THE JUDICIARY