<DOC>
[109th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:20390.wais]
USA PATRIOT ACT: A REVIEW FOR THE
PURPOSE OF REAUTHORIZATION
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
APRIL 6, 2005
__________
Serial No. 109-12
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
______
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona ADAM SMITH, Washington
MIKE PENCE, Indiana CHRIS VAN HOLLEN, Maryland
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, Chief of Staff-General Counsel
Perry H. Apelbaum, Minority Chief Counsel
C O N T E N T S
----------
APRIL 6, 2005
OPENING STATEMENT
Page
The Honorable F. James Sensenbrenner, Jr., a Representative in
Congress from the State of Wisconsin, and Chairman, Committee
on the Judiciary............................................... 1
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 2
WITNESSES
The Honorable Alberto R. Gonzales, Attorney General, U.S.
Department of Justice
Oral Testimony................................................. 33
Prepared Statement............................................. 37
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Letter submitted by the Honorable John Conyers, Jr. from Ms.
Clash-Drexler.................................................. 5
Article submitted by the Honorable John Conyers, Jr., entitled
``Seeking the Truth From Justice,'' by Laura Murphy, former
Director, American Civil Liberties Union....................... 7
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas............. 19
Prepared Statement of the Honorable Linda Sanchez, a
Representative in Congress from the State of California........ 32
Prepared Statement of the Honorable Zoe Lofgren, a Representative
in Congress from the State of California....................... 32
APPENDIX
Material Submitted for the Hearing Record
USA Patriot Act: Sunsets Report, prepared by the U.S. Department
of Justice..................................................... 85
Chapter I of On Liberty by John Stuart Mill, submitted for the
Record by the Honorable Sheila Jackson Lee..................... 156
USA PATRIOT ACT: A REVIEW FOR THE PURPOSE OF REAUTHORIZATION
----------
WEDNESDAY, APRIL 6, 2005
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 1:01 p.m., in
Room 2141, Rayburn House Office Building, Hon. F. James
Sensenbrenner, Jr. (Chairman of the Committee) presiding.
Chairman Sensenbrenner. The Committee will be in order. A
quorum for the taking of testimony is present.
On September 11, 2001, 19 terrorists turned four planes
into guided missiles that killed more than 3,000 innocent men,
women, and children, caused approximately $100 billion in
economic losses, and triggered U.S. military action in
Afghanistan. In response to the failure of the Nation's law
enforcement and intelligence communities to discover and
prevent these attacks, Congress passed the USA PATRIOT Act. The
objective of this bill was to modernize both Federal law
enforcement and intelligence investigative tools and to ensure
that the information collected was shared between the law
enforcement and intelligence communities.
September 11 also led to the passage of several other key
pieces of legislation to assist law enforcement and the
Intelligence Community with their efforts in the war on
terrorism. Such accomplishments included creating a Department
of Homeland Security to better coordinate agency efforts for a
secure homeland; further improvements to information sharing;
efforts to enhance border and visa security; and heightened
penalties for terrorist acts and criminal activities which
assist in their furtherance.
The PATRIOT Act is an important part of the overall
framework to protect our Nation. In passing the PATRIOT Act,
Congress established standards and oversight for the use of the
Act's provision. For example, section 1001 of the PATRIOT Act
requires the Inspector General of the Department of Justice to
determine and report to Congress civil liberties violations. I
would note that this includes any violations of civil liberties
by DOJ, not just those alleged to have occurred under the
provisions of the PATRIOT Act. To date, the Inspector General
has issued six reports and not found a single example of a
civil liberties violation relating to authority granted under
the PATRIOT Act.
To further address concerns that enhanced law enforcement
tools could lead to civil liberties violations, Congress
included a sunset provision for 16 sections of the PATRIOT Act.
These 16 sections, set to expire this year on December 31, are
aimed at updating investigative tools and improving information
sharing and go to the very heart of our Nation's response to a
changed world in which terrorists plot to destroy our very way
of life.
As we consider the reauthorization of these provisions, we
must consider whether allowing them to expire will once again
saddle law enforcement and the Intelligence Community with the
restrictions that will render intelligence unreliable and
prosecutions unattainable against criminals and terrorists who
increasingly utilize advanced technology and
countersurveillance methods to improve their efforts to harm
and to kill.
As we learned from the 9/11 attacks, procedures needed to
be streamlined for law enforcement and the Intelligence
Community to react in real time. In this war on terrorism, we
are racing against the clock. Terrorist cells operate
throughout the world, including within our own borders, and
actively plan attacks against U.S. citizens. Law enforcement
and the Intelligence Community must be able to quickly protect
the public from future attacks.
That is why I believe that one of the most important tasks
Congress faces this year is to consider the reauthorization of
these provisions. Lawmakers must focus on how the PATRIOT Act
has been implemented, what improvements, if any, are needed,
and whether the provisions set to expire deserve to be made
permanent.
Accordingly, the Committee plans an ambitious hearing and
oversight schedule beginning with today's full Committee
hearing with Attorney General Alberto Gonzales. After this
hearing, the Committee will hold eight Subcommittee hearings
through April and May on the PATRIOT Act provisions that are
set to expire on December 31. Finally, I anticipate the Deputy
Attorney General and the Inspector General will testify before
the full Committee soon after the Subcommittee hearings are
completed. These hearings reflect this Committee's continued
commitment to monitor the implementation of anti-terrorism
legislation, to conduct active oversight over the Department of
Justice, and to ensure that law enforcement has the tools
necessary to fight and to win the war on terrorism and to fight
crime in general.
I look forward to hearing the testimony of the Attorney
General, and congratulations, General Gonzales, on your recent
confirmation.
Now I recognize the gentleman from Michigan, Mr. Conyers.
Mr. Conyers. Thank you, Mr. Chairman. Good afternoon, Mr.
Attorney General. We are delighted to have you here.
As we begin our review of the PATRIOT Act, let me start at
this very important point. Those who oppose the passage of any
parts of the PATRIOT Act, want changes, who question its
utility, who are concerned about the Government's demand for
new and unnecessary powers after September 11 are not those who
do that because they have any sympathy with terrorists or those
that support them. I personally resent on the part of all
Americans any one, particularly in the Government, that takes
that point of view.
In the Congress and in the Judiciary Committee, that's even
more important because we make the laws. We pass the laws.
These are our responsibilities. This is what we took the oath
for. So we have a historic and legitimate concern regarding the
misuse and the abuse of Government power, any Government power,
but particularly coming from the Department of Justice, not
only under the PATRIOT Act, but under the entire array of
authority unilaterally assumed in many instances by the
Administration since September 11.
This includes the mistreatment of detainees, the condoning
of torture, the designation of enemy combatants, the
immigration sweeps, hundreds of them, the excessive collection
of personnel data, the closing of immigration proceedings, the
unchecked military tribunals, and the abuse of our material
witness statutes.
When our own Government detains and verbally and physically
abuses thousands of immigrants for unknown and unspecified
reasons with no time limits, targets tens of thousands of Arab
Americans for intensive interrogation, I, sir, see a Department
of Justice that has institutionalized racial and ethnic
profiling without the benefit of a single terrorism conviction.
When our President takes upon himself to label United
States citizens as enemy combatants without a trial, without
charges, without access to the outside world, I see an
executive branch that has placed itself in the constitutionally
untenable position of prosecutor, judge, and jury, and is
ignoring, to my shock and dismay, the principles of the
separation of powers.
When our Justice Department condones the torture of
prisoners at home and abroad, authorizes the monitoring of
mosques and religious sites without any indication of criminal
activity, I see a course of conduct that makes our citizens
less safe, not more safe, and undermines our role as a beacon
of democracy and freedom in the world.
When the FBI can arrest an innocent American citizen, a
Muslim, Brandon Mayfield, based on a botched fingerprint exam,
blame him for blowing up a train in Spain and he's never been
in the country, has no known connection to al-Qaeda or any
terrorist group, I hope you can understand why so many
Americans are distrustful about the tactics and standards being
applied in our war against terror.
When the PATRIOT Act can be misused to tap Mr. Mayfield's
phones, seize his property, copy his computer, spy on his
children, take his DNA, all without his knowledge, please, sir,
appreciate why I am today calling on the Inspector General to
review the manner in which this American citizen and his family
have been treated by our Government.
In the past, your predecessor has stated that those who
would criticize this Administration are aiding the terrorists
and giving ammunition to America's enemies and chastise us as
searching for phantoms of lost liberty. Well, I'm here to say
that these incidents are not phantoms, thousands of them. They
involve real people with real families whose civil liberties
have been abused in the war on terror.
This Member will not be bullied or intimidated or rushed
into backing down from my legislative and oversight
responsibilities. Many of us remember a time when the powers of
the FBI and the CIA were horribly abused. We know what it means
to face racial profiling and religious persecution. Many of us
know that our Nation has too frequently overreacted to threats
of violence in the past by clamping down on legitimate protests
and law-abiding citizens and immigrants. To me, the lessons of
September 11 are that if we allow law enforcement to do their
work free of political interference, if we give them adequate
resources and modern technologies, we can protect our citizens
without intruding on our liberties.
We all fight terrorism, but we want to work with you to
fight it the right way, consistent with our Constitution and in
a manner that serves as a model for the rest of the world.
Chairman Sensenbrenner. Thank you, Mr. Conyers.
[The letter from Ms. Clash-Drexler follows:]
Letter submitted for the Record by the Honorable John Conyers, Jr. from
Ms. Clash-Drexler
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Article submitted by the Honorable John Conyers, Jr. entitled ``Seeking
the Truth From Justice,'' by Laura Murphy, former Director, American
Civil Liberties Union
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Chairman Sensenbrenner. Without objection, all Members may
place opening statements in the record at this point.
[The prepared statement of Ms. Jackson Lee follows:]
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
[The prepared statement of Ms. Sanchez follows:]
Prepared Statement of the Honorable Linda T. Sanchez, a Representative
in Congress from the State of California
Thank you, Chairman Sensenbrenner and Ranking Member Conyers for
convening this oversight hearing today to review the PATRIOT Act, and
to consider its reauthorization.
Reauthorizing the PATRIOT Act raises many very deep concerns, and
those concerns are just as deep as the opposition I feel to the first
incarnation of the PATRIOT Act.
The PATRIOT Act signed in 2001 is a massive infringement on many
civil liberties. It became law with little consideration of the
consequences of giving law enforcement such broad surveillance powers--
even going so far as granting them access to your library records.
Every Member of this Committee is fully aware of how quickly we
advanced from the terrorist attacks on 9/11, to the concept of the
PATRIOT Act, to the bill being passed by both chambers of Congress.
It only took 41 days.
Forty-one days is simply not enough time to fully develop a bill
that impacts the Constitutionally protected privacy rights of every
American citizen, and granted so much authority to law enforcement
agencies.
Some of the new law enforcement powers the PATRIOT Act allows are
shocking.
We now live in a country where the government can listen to
conversations between attorneys and clients as they prepare their
defense in certain cases.
We live in a country where the government has the power to
indefinitely detain and even deport people who are part of certain
associations, or simply exercise their right to free speech.
We live in a country where law enforcement agents have the power to
detain aliens when the Attorney General merely suspects they have
engaged in terrorist activity.
That doesn't sound like the United States to me, it sounds more
like Communist China?
As troubling as the law enforcement provisions of this bill are,
the restrictions on the ability of Judiciary and Legislative branches
to oversee law enforcement's actions are equally troubling.
This Committee has tried in vain to exercise its oversight powers
and get answers to our many questions about how the PATRIOT Act is
being used, and more importantly, how it is being misused.
Far too often we have been met by a wall of secrecy or silence.
That is unacceptable. When every American's civil liberties and
rights are at stake, we must have transparency to ensure that privacy
rights are protected.
I fully recognize how monumental and important the task of
protecting national security and preventing future terrorist attacks
is.
I also recognize that law enforcement agents are working tirelessly
to protect our country and will need every resource we can provide to
keep another 9/11 from happening.
But we cannot trample on the Constitution in our effort to prevent
terrorist attacks.
I thank the Attorney General for his testimony today, and I hope
that he can inform the Committee how he plans to address the serious
civil liberty concerns inherent in reauthorizing the PATRIOT Act.
I yield back.
[The prepared statement of Ms. Lofgren follows:]
Prepared Statement of the Honorable Zoe Lofgren, a Representative in
Congress from the State of California
Following the attacks of 9/11, this Congress passed the USA PATRIOT
Act to give our law enforcement and intelligence agencies new powers to
fight terrorism. I voted for that law, but only after securing support
for sunset provisions that allowed this Congress to revisit these
issues under less trying circumstances.
Today, we begin that review in a very different atmosphere. This
Nation is still fighting terrorism at home and abroad. But an
increasing number of Americans are beginning to wonder whether the
PATRIOT Act does more harm than good. In fact, over 370 communities and
4 states have passed resolutions opposing parts of the PATRIOT Act.
These communities represent about 56 million Americans who have lost
faith in their government's ability to protect civil liberties.
It's no surprise so many Americans have lost faith. Aside from the
PATRIOT Act, Americans have had to deal with torture scandals that were
at least implicitly authorized by their own government. They have had
to grapple with the reality that their government detains its own
citizens for indefinite periods of time without charge, access to
counsel, or due process. And they have had to watch their government
conduct racial profiling sweeps and secret tribunals.
Add to these realities the fact that this Administration has been
so secretive about its use of the PATRIOT Act, and one can understand
why the American public wants answers.
Every American, whether Democrat or Republican, wants to protect
this country and all it stands for. But we cannot let our zeal for
security destroy our fundamental freedoms. There must be a system of
checks and balances to ensure that the goals of security and liberty
both receive attention.
I question whether this Administration is succeeding in that
challenge. I question this Administration's actions because I love this
country too much to sit back and watch our fundamental freedoms give
way to indefinite detentions and secret tribunals.
For several years now, this Congress has abrogated its
responsibility to ask the tough questions. But today, we have an
opportunity to change that. There are difficult decisions ahead of us.
I am hopeful that the members of this committee will follow their
conscience and not the prevailing political winds of the day. These
issues are too important.
As we start this process, I for one plan to keep an open mind. But
I cannot do my job unless this Administration starts to provide real
answers. We have the time to give thoughtful consideration to whether
particular powers actually advance security and adequately protect
civil liberties. But we can't do that in a vacuum. We need to know the
facts. We need to know whether these powers are actually helping
protect this country from terrorism. And we need to know their effect
on fundamental freedoms. These are not Republican issues, and they are
not Democratic issues. They are American issues, and the public
deserves answers. I hope we can get some starting today.
Chairman Sensenbrenner. Now, I would like to welcome our
witness today, Attorney General Alberto Gonzales. He was sworn
in as our Nation's 80th Attorney General in February of this
year. Prior to his appointment, he served as counsel to
President George W. Bush throughout the President's first term.
Before coming to Washington, he sat on the Supreme Court of
Texas, served as Texas Secretary of State, and served as
General Counsel to then-Governor Bush. Before joining the
Governor's staff, he was a partner with the law firm of Vinson
and Elkins. It is also noteworthy to mention that General
Gonzales has served in the Air Force, which adds to his
distinguished career.
Welcome, General. We are pleased to have you testify today,
and if you will please rise and take the oath, you may proceed
afterwards.
Do you solemnly swear that the testimony before this
Committee will be the truth, the whole truth, and nothing but
the truth, so help you, God?
Attorney General Gonzales. I do.
Chairman Sensenbrenner. Thank you. Attorney General, you
are now recognized.
TESTIMONY OF ALBERTO R. GONZALES, ATTORNEY GENERAL, U.S.
DEPARTMENT OF JUSTICE
Attorney General Gonzales. Chairman Sensenbrenner,
Congressman Conyers, and Members of the Committee, I am pleased
to be here to discuss an issue relating to the security of the
American people and the protection of our cherished freedoms.
Following the attacks of September 11, the Administration
and Congress came together to prevent another tragedy from
happening again. One result of our collaboration was the USA
PATRIOT Act, which was passed by Congress with overwhelming
bipartisan support after carefully balancing security and civil
liberties. And since then, this law has been integral to the
Government's prosection of the war on terrorism. We have
dismantled terrorist cells, disrupted terrorist plots, and
captured terrorists before they could strike.
Many of the most important authorities in the Act are
scheduled to expire on December 31 of this year. I believe it
is important that they remain available. Al-Qaeda and other
terrorist groups still pose a grave threat to the security of
the American people and now is not the time to relinquish some
of our most effective tools in the fight.
As Congress considers whether to renew these provisions, I
am open to suggestions for clarifying and strengthening the Act
and I look forward to meeting with those both inside and
outside of Congress who have expressed concern about some of
these provisions. But let me be clear that I cannot support any
proposal that would undermine our ability to combat terrorism
effectively.
All of us continue to have the same objective, ensuring the
security of the American people while preserving our civil
liberties. I, therefore, hope that we would consider
reauthorization in a calm and thoughtful manner and with the
understanding that while the tools of the PATRIOT Act are
important, they are not extraordinary. Many of these
authorities to deal with terrorists have long been available to
prosecutors to deal with ordinary criminals, and actions under
the Act often must occur with the approval of a Federal judge.
Our dialogue should be based on these facts rather than
exaggeration.
And because I believe that this discussion must be
conducted in an open and honest fashion, I will begin my
testimony today by presenting this Committee with relatively
new information recently declassified about the use of certain
PATRIOT Act provisions.
Of the 16 provisions scheduled to sunset, I understand that
some Members of this Committee are most concerned about
sections 206 and 215. Section 215 granted national security
investigators authority to seek a court order requiring the
production of records relevant to their investigation. Just as
prosecutors use grand jury subpoenas as the building blocks of
criminal investigations, investigators of international
terrorism and espionage cases must have the ability, with
appropriate safeguards, to request production of evidence that
can be essential to the success of an intelligence
investigation.
To be clear, a section 215 order, like a subpoena, does not
authorize Government investigators to enter anyone's home or
search anyone's property. It is a request for information. A
Federal judge must approve every request for records under
section 215, and the FISA court has granted the Department's
request for a 215 order 35 times as of March 30, 2005.
Although prosecutors have long been able to obtain and have
obtained library records in connection with a criminal
investigation, I understand section 215 may be considered
controversial because of fears concerning its theoretical use
to obtain library records. However, I can report the Department
has not sought a section 215 order to obtain library or book
store records, medical records, or gun sale records. Rather,
the provision to date has been used only to obtain driver's
license records, public accommodation records, apartment
leasing records, credit card records, and subscriber
information, such as names and addresses, for telephone numbers
captured through court-authorized pen-register devices.
Going forward, the Department anticipates that our use of
section 215 will increase as we continue to use the provision
to obtain subscriber information for telephone numbers captured
through court-authorized pen-register devices, just as such
information is routinely obtained in criminal investigations.
Although some of the concerns expressed about section 215
have been based on inaccurate fears about its use, other
criticisms have apparently been based on possible ambiguity in
the law. The Department has already stated in litigation that
the recipient of a section 215 order may consult with an
attorney and may challenge that order in court. The Department
has also stated that the Government may seek and a court may
require only the production of records that are relevant to a
national security investigation, a standard similar to the
relevant standard that applied to grand jury subpoenas in
criminal cases. The text of section 215, however, is not as
clear as it could be in these respects. The Department,
therefore, is willing to support amendments to section 215 to
clarify these points.
We cannot, however, support elevating the relevant standard
under section 215 to probable cause. According to our lawyers
and agents, raising the standard would render section 215 a
dead letter. As we all know, probable cause is the standard
that law enforcement must meet to justify a search for
electronic surveillance. It should not be applied to
preliminary investigative tools, such as grand jury subpoenas
or section 215 orders, which are used to determine whether more
intrusive investigative techniques requiring probable cause are
justified.
Section 206 also provides terrorism investigators with an
authority long possessed by criminal investigators. In 1986,
Congress authorized the use of multi-point or roving wiretaps
in criminal investigations. Before the PATRIOT Act, however,
these orders were not available for national security
investigations under FISA. Therefore, when an international
terrorist or spy switched telephones, investigators had to
return to the FISA court for a new surveillance order and risk
missing key conversations.
In a post-9/11 world, we cannot afford to take that risk.
Section 206 fixed this problem by authorizing multi-point
surveillance of an international terrorist or spy when a judge
finds that the target may take action to thwart surveillance;
and as of March 30, this provision had been used 49 times.
As in the case of multi-point wiretaps for traditional
criminal investigations, section 206 contains ample safeguards
to protect the privacy of innocent Americans. The target of
roving surveillance must be identified or described
specifically in the order. The Government cannot use a 206
roving wiretap order to move from target to target. If the
Government wants to obtain a wiretap for a new target, it must
go back to court.
Another important FISA-related PATRIOT Act provision is
section 207. Prior to this law, the Justice Department invested
considerable time returning to court to renew existing orders.
Section 207 substantially reduced this investment of time by
increasing the maximum time duration for FISA electronic
surveillance and physical search orders.
The Department estimates that section 207 has saved nearly
60,000 attorney hours. In other words, it has saved 30 lawyers
a year's work, and this estimate does not account for the time
saved by FBI agents, administrative staff, and the judiciary.
Department personnel were able to spend that time pursuing
other investigations and oversight matters.
And given section 207's success, I am today proposing
additional amendments to increase the efficiency of the FISA
process, copies of which will be presented to this Committee
today. And had these proposals been included in the PATRIOT
Act, the Department estimates that an additional 25,000
attorney hours would have been saved in the interim. Most of
these ideas were specifically endorsed in the recent report of
the WMD Commission, which said that these amendments would
allow the Department both to ``focus their attention where it
is most needed,'' and to maintain the current level of
oversight paid to cases implicating the civil liberties of
Americans.
Finally, I would like to touch on another provision that
has generated significant discussion. Section 213, which is not
scheduled to sunset, established a nationwide standard for
issuing delayed notice search warrants, which have been used by
law enforcement and criminal investigations and approved by
courts for decades. Under section 213, law enforcement must
always provide notice to a person whose property is searched. A
judge may allow that notice to be temporarily delayed, but that
person will always receive notification.
The Department uses this tool only when necessary. For
instance, from enactment of the PATRIOT Act through January 31
of this year, the Department used section 213 to request
approximately 155 delayed notice search warrants, which have
been issued in terrorism, drug, murder, and other criminal
investigations. We estimate that this number represents less
than one-fifth of 1 percent of all search warrants obtained by
the Department during this time. In other words, in more than
499 of 500 cases, the Department provides immediate notice of
the search. In appropriate cases, however, delayed notice
search warrants are necessary, because if terrorists or other
criminals are prematurely tipped off that they are under
investigation, they may destroy evidence, harm witnesses, or
flee prosecution.
I hope that this information will demystify these essential
national security tools, eliminate some of the confusion
surrounding their use, and enrich the debate about the
Department's counterterrorism efforts.
I believe the authorities of the PATRIOT Act are critical
to our Nation's success in the war against terrorism. I am,
therefore, committed to providing the information that this
Committee and the American public need to thoroughly evaluate
its effectiveness. The Act has a proven record of success in
protecting the security of the American people and we cannot
afford to allow its most important provisions to sunset.
I look forward to working with the Committee closely in the
weeks ahead, listening to your concerns, and joining together
again to protect the security of the American people. Thank
you, Mr. Chairman.
Chairman Sensenbrenner. Thank you very much, Attorney
General Gonzales.
[The prepared statement of Mr. Gonzales follows:]
Prepared Statement of the Honorable Alberto R. Gonzales
Chairman Sensenbrenner, Ranking Member Conyers, and Members of the
Committee:
It is my pleasure to appear before you this afternoon to discuss
the USA PATRIOT Act. Approximately three-and-a-half years ago, our
Nation suffered a great tragedy. Thousands of our fellow citizens were
murdered at the World Trade Center, the Pentagon, and a field in rural
Pennsylvania. We will never forget that day or the heroes who perished
on that hallowed ground. Forever in our Nation's collective memory are
stories of the New York City firefighters who rushed into burning
buildings so that others might live and of the brave passengers who
brought down United Airlines Flight 93 before it could reach
Washington, DC, and the messages from those trapped in the World Trade
Center saying their last goodbyes to loved ones as they faced certain
death will stay forever in our hearts.
In the wake of this horrific attack on American soil, we mourned
our Nation's terrible loss. In addition, we came together in an effort
to prevent such a tragedy from ever happening again. Members of both
parties worked together on legislation to ensure that investigators and
prosecutors would have the tools they need to uncover and disrupt
terrorist plots. Additionally, members joined hands across the aisle to
guarantee that our efforts to update and strengthen the laws governing
the investigation and prosecution of terrorism remained firmly within
the parameters of the Constitution and our fundamental national
commitment to the protection of civil rights and civil liberties.
The result of this collaboration was the USA PATRIOT Act, which
passed both Houses of the Congress with overwhelming bipartisan
majorities and was signed into law by President Bush on October 26,
2001. In the past three-and-a-half years, the USA PATRIOT Act has been
an integral part of the Federal Government's successful prosecution of
the war against terrorism. Thanks to the Act, we have been able to
identify terrorist operatives, dismantle terrorist cells, disrupt
terrorist plots, and capture terrorists before they have been able to
strike.
Many of the most important provisions of the USA PATRIOT Act,
however, are scheduled to expire at the end of this year. Therefore, I
am here today primarily to convey one simple message: All provisions of
the USA PATRIOT Act that are scheduled to sunset at the end of this
year must be made permanent. While we have made considerable progress
in the war against terrorism in the past three-and-a-half years, al
Qaeda and other terrorist groups still pose a grave threat to the
safety and security of the American people. The tools contained in the
USA PATRIOT Act have proven to be essential weapons in our arsenal to
combat the terrorists, and now is not the time for us to be engaging in
unilateral disarmament. Moreover, many provisions in the Act simply
updated the law to reflect recent technological developments and have
been used, as was intended by Congress, not only in terrorism cases,
but also to combat other serious criminal conduct. If these provisions
are not renewed, the Department's ability to combat serious offenses
such as cybercrime, child pornography, and kidnappings will also be
hindered.
As Congress considers whether to renew key USA PATRIOT Act
provisions, I also wish to stress that I am open to any ideas that may
be offered for improving these provisions. If members of this Committee
or other members of Congress wish to offer proposals in this regard, I
and others at the Department of Justice would be happy to consult with
you and review your ideas. However, let me be clear about one thing: I
will not support any proposal that would undermine the ability of
investigators and prosecutors to disrupt terrorist plots and combat
terrorism effectively.
It is also my sincere hope that we will be able to consider these
crucial issues in a calm and thoughtful fashion. All of us seek to
ensure the safety and security of the American people and to protect
their civil liberties as well. As this debate goes forward, I will
treat those who express concerns about the USA PATRIOT Act with respect
and listen to their concerns with an open mind. I also hope that all
who participate in the debate will stick to the facts and avoid
overheated rhetoric that inevitably tends to obfuscate rather than
elucidate the truth.
Today, I would like to use the rest of my testimony to explain how
key provisions of the USA PATRIOT Act have helped to protect the
American people. I will particularly focus on those sections of the Act
that are scheduled to expire at the end of 2005. To begin with, I will
discuss how the USA PATRIOT Act has enhanced the federal government's
ability to share intelligence. Then, I will explain how the USA PATRIOT
Act provided terrorism investigators with many of the same tools long
available to investigators in traditional criminal cases. Additionally,
I will explore how the USA PATRIOT Act updated the law to reflect new
technology. And finally, I will review how the Act protects the civil
liberties of the American people and respects the important role of
checks and balances within the Federal Government.
INFORMATION SHARING
The most important reforms contained in the USA PATRIOT Act
improved coordination and information sharing within the Federal
Government. Prior to the attacks of September 11, 2001, our
counterterrorism efforts were severely hampered by unnecessary
obstacles and barriers to information sharing. These obstacles and
barriers, taken together, have been described as a ``wall'' that
largely separated intelligence personnel from law enforcement
personnel, thus dramatically hampering the Department's ability to
detect and disrupt terrorist plots.
It is vitally important for this Committee to understand how the
``wall'' was developed and how it was dismantled, not for the purpose
of placing blame but rather to ensure that it is never rebuilt. Before
the passage of the USA PATRIOT Act, the Foreign Intelligence
Surveillance Act (FISA) mandated that applications for orders
authorizing electronic surveillance or physical searches under FISA
were required to include a certification that ``the purpose'' of the
surveillance or search was to gather foreign intelligence information.
This requirement, however, came to be interpreted by the courts and
later the Department of Justice to require that the ``primary purpose''
of the collection was to obtain foreign intelligence information rather
than evidence of a crime. And, because the courts evaluated the
Department's purpose for using FISA, in part, by examining the nature
and extent of coordination between intelligence and law enforcement
personnel, the more coordination that occurred, the more likely courts
would find that law enforcement, rather than foreign intelligence, had
become the primary purpose of the surveillance or search, a finding
that would prevent the court from authorizing surveillance under FISA.
As a result, over the years, the ``primary purpose'' standard had the
effect of constructing a metaphorical ``wall'' between intelligence and
law enforcement personnel.
During the 1980s, a set of largely unwritten rules only limited
information sharing between intelligence and law enforcement officials
to some degree. In 1995, however, the Department established formal
procedures that limited the sharing of information between intelligence
and law enforcement personnel. The promulgation of these procedures was
motivated in part by the concern that the use of FISA authorities would
not be allowed to continue in particular investigations if criminal
prosecution began to overcome intelligence gathering as an
investigation's primary purpose.
As they were originally designed, the procedures were intended to
permit a degree of interaction and information sharing between
prosecutors and intelligence officers, while at the same time ensuring
that the FBI would be able to obtain or continue FISA surveillance and
later use the fruits of that surveillance in a criminal prosecution.
Over time, however, coordination and information sharing between
intelligence and law enforcement investigators became even more limited
in practice than was permitted in theory. Due both to the complexities
of the restrictions on information sharing and to a perception that
improper information sharing could end a career, investigators often
erred on the side of caution and refrained from sharing information.
The end result was a culture within the Department sharply limiting the
exchange of information between intelligence and law enforcement
officials.
In hindsight, it is difficult to overemphasize the negative impact
of the ``wall.'' In order to uncover terrorist plots, it is essential
that investigators have access to as much information as possible.
Often, only by piecing together disparate and seemingly unrelated
points of information are investigators able to detect suspicious
patterns of activity, a phenomenon generally referred to as
``connecting the dots.'' If, however, one set of investigators has
access to only one-half of the dots, and another set of investigators
has access to the other half of the dots, the likelihood that either
set of investigators will be able to connect the dots is significantly
reduced.
The operation of the ``wall'' was vividly illustrated in testimony
from Patrick Fitzgerald, U.S. Attorney for the Northern District of
Illinois, before the Senate Judiciary Committee:
I was on a prosecution team in New York that began a criminal
investigation of Usama Bin Laden in early 1996. The team--
prosecutors and FBI agents assigned to the criminal case--had
access to a number of sources. We could talk to citizens. We
could talk to local police officers. We could talk to other
U.S. Government agencies. We could talk to foreign police
officers. Even foreign intelligence personnel. And foreign
citizens. And we did all those things as often as we could. We
could even talk to al Qaeda members--and we did. We actually
called several members and associates of al Qaeda to testify
before a grand jury in New York. And we even debriefed al Qaeda
members overseas who agreed to become cooperating witnesses.
But there was one group of people we were not permitted to
talk to. Who? The FBI agents across the street from us in lower
Manhattan assigned to a parallel intelligence investigation of
Usama Bin Laden and al Qaeda. We could not learn what
information they had gathered. That was ``the wall.''
Thanks in large part to the USA PATRIOT Act, this ``wall'' has been
lowered. Section 218 of the Act, in particular, helped to tear down the
``wall'' by eliminating the ``primary purpose'' requirement under FISA
and replacing it with a ``significant purpose'' test. Under section
218, the Department may now conduct FISA surveillance or searches if
foreign-intelligence gathering is a ``significant purpose'' of the
surveillance or search. As a result, courts no longer need to compare
the relative weight of the ``foreign intelligence'' and ``law
enforcement'' purposes of a proposed surveillance or search and
determine which is the primary purpose; they simply need to determine
whether a significant purpose of the surveillance is to obtain foreign
intelligence. The consequence is that intelligence and law enforcement
personnel may share information much more freely without fear that such
coordination will undermine the Department's ability to continue to
gain authorization for surveillance under FISA.
Section 218 of the USA PATRIOT Act not only removed what was
perceived at the time as the primary impediment to robust information
sharing between intelligence and law enforcement personnel; it also
provided the necessary impetus for the removal of the formal
administrative restrictions as well as the informal cultural
restrictions on information sharing. Thanks to the USA PATRIOT Act, the
Department has been able to move from a culture where information
sharing was viewed with a wary eye to one where it is an integral
component of our counterterrorism strategy. Following passage of the
Act, the Department adopted new procedures specifically designed to
increase information sharing between intelligence and law enforcement
personnel. Moreover, Attorney General Ashcroft instructed every U.S.
Attorney across the country to review intelligence files to discover
whether there was a basis for bringing criminal charges against the
subjects of intelligence investigations. He also directed every U.S.
Attorney to develop a plan to monitor intelligence investigations, to
ensure that information about terrorist threats is shared with other
agencies, and to consider criminal charges in those investigations.
The increased information sharing facilitated by section 218 of the
USA PATRIOT Act has led to tangible results in the war against
terrorism: plots have been disrupted; terrorists have been apprehended;
and convictions have been obtained in terrorism cases. Information
sharing between intelligence and law enforcement personnel, for
example, was critical in successfully dismantling a terror cell in
Portland, Oregon, popularly known as the ``Portland Seven,'' as well as
a terror cell in Lackawanna, New York. Such information sharing has
also been used in the prosecution of: several persons involved in al
Qaeda drugs-for-weapons plot in San Diego, two of whom have pleaded
guilty; nine associates in Northern Virginia of a violent extremist
group known as Lashkar-e-Taiba that has ties to al Qaeda, who were
convicted and sentenced to prison terms ranging from four years to life
imprisonment; two Yemeni citizens, Mohammed Ali Hasan Al-Moayad and
Mohshen Yahya Zayed, who were charged and convicted for conspiring to
provide material support to al Qaeda and HAMAS; Khaled Abdel Latif
Dumeisi, who was convicted by a jury in January 2004 of illegally
acting as an agent of the former government of Iraq as well as two
counts of perjury; and Enaam Arnaout, the Executive Director of the
Illinois-based Benevolence International Foundation, who had a long-
standing relationship with Osama Bin Laden and pleaded guilty to a
racketeering charge, admitting that he diverted thousands of dollars
from his charity organization to support Islamic militant groups in
Bosnia and Chechnya. Information sharing between intelligence and law
enforcement personnel has also been extremely valuable in a number of
other ongoing or otherwise sensitive investigations that I am not at
liberty to discuss today.
While the ``wall'' primarily blocked the flow of information from
intelligence investigators to law enforcement investigators, another
set of barriers, before the passage of the USA PATRIOT Act, often
prevented law enforcement officials from sharing information with
intelligence personnel and others in the government responsible for
protecting the national security. Federal law, for example, was
interpreted generally to prohibit federal prosecutors from disclosing
information from grand jury testimony and criminal investigative
wiretaps to intelligence and national defense officials even if that
information indicated that terrorists were planning a future attack,
unless such officials were actually assisting with the criminal
investigation. Sections 203(a) and (b) of the USA PATRIOT Act, however,
eliminated these obstacles to information sharing by allowing for the
dissemination of that information to assist Federal law enforcement,
intelligence, protective, immigration, national defense, and national
security officials in the performance of their official duties, even if
their duties are unrelated to the criminal investigation. (Section
203(a) covers grand jury information, and section 203(b) covers wiretap
information). Section 203(d), likewise, ensures that important
information that is obtained by law enforcement means may be shared
with intelligence and other national security officials. This provision
does so by creating a generic exception to any other law purporting to
bar Federal law enforcement, intelligence, immigration, national
defense, or national security officials from receiving, for official
use, information regarding foreign intelligence or counterintelligence
obtained as part of a criminal investigation. Indeed, section 905 of
the USA PATRIOT Act requires the Attorney General to expeditiously
disclose to the Director of Central Intelligence foreign intelligence
acquired by the Department of Justice in the course of a criminal
investigation unless disclosure of such information would jeopardize an
ongoing investigation or impair other significant law enforcement
interests.
The Department has relied on section 203 in disclosing vital
information to the intelligence community and other federal officials
on many occasions. Such disclosures, for instance, have been used to
assist in the dismantling of terror cells in Portland, Oregon and
Lackawanna, New York, to support the revocation of suspected
terrorists' visas, to track terrorists' funding sources, and to
identify terrorist operatives overseas.
The information sharing provisions described above have been
heralded by investigators in the field as the most important provisions
of the USA PATRIOT Act. Their value has also been recognized by the 9/
11 Commission, which stated in its official report that ``[t]he
provisions in the act that facilitate the sharing of information among
intelligence agencies and between law enforcement and intelligence
appear, on balance, to be beneficial.''
Since the passage of the USA PATRIOT Act, Congress has taken in the
Homeland Security Act of 2002 and the Intelligence Reform and Terrorism
Prevention Act of 2004 other important steps forward to improve
coordination and information sharing throughout the Federal Government.
If Congress does not act by the end of the year, however, we will soon
take a dramatic step back to the days when unnecessary obstacles
blocked vital information sharing. Three of the key information sharing
provisions of the USA PATRIOT Act, sections 203(b), 203(d), and 218,
are scheduled to sunset at the end of the year. It is imperative that
we not allow this to happen. To ensure that the ``wall'' is not
reconstructed and investigators are able to ``connect the dots'' to
prevent future terrorist attacks, these provisions must be made
permanent.
USING PREEXISTING TOOLS IN TERRORISM INVESTIGATIONS
In addition to enhancing the information sharing capabilities of
the Department, the USA PATRIOT Act also permitted several existing
investigative tools that had been used for years in a wide range of
criminal investigations to be used in terrorism cases as well.
Essentially, these provisions gave investigators the ability to fight
terrorism utilizing many of the same court-approved tools that have
been used successfully and constitutionally for many years in drug,
fraud, and organized crime cases.
Section 201 of the USA PATRIOT Act is one such provision. In the
context of criminal law enforcement, Federal investigators have long
been able to obtain court orders to conduct wiretaps when investigating
numerous traditional criminal offenses. Specifically, these orders have
authorized the interception of certain communications to investigate
the predicate offenses listed in the federal wiretap statute, 18 U.S.C.
Sec. 2516(1). The listed offenses include numerous crimes, such as drug
crimes, mail fraud, passport fraud, embezzlement from pension and
welfare funds, the transmission of wagering information, and obscenity
offenses.
Prior to the passage of the USA PATRIOT Act, however, certain
extremely serious crimes that terrorists are likely to commit were not
included in this list, which prevented law enforcement authorities from
using wiretaps to investigate these serious terrorism-related offenses.
As a result, law enforcement could obtain under appropriate
circumstances a court order to intercept phone communications in a
passport fraud investigation but not a chemical weapons investigation
or an investigation into terrorism transcending national boundaries.
Section 201 of the Act ended this anomaly in the law by amending
the criminal wiretap statute to add the following terrorism-related
crimes to the list of wiretap predicates: (1) chemical-weapons
offenses; (2) certain homicides and other acts of violence against
Americans occurring outside of the country; (3) the use of weapons of
mass destruction; (4) acts of terrorism transcending national borders;
(5) financial transactions with countries which support terrorism; and
(6) material support of terrorists and terrorist organizations.
This provision simply enables investigators to use wiretaps when
looking into the full range of terrorism-related crimes. This authority
makes as much, if not more, sense in the war against terrorism as it
does in traditional criminal investigations; if wiretaps are an
appropriate investigative tool to be utilized in cases involving
bribery, gambling, and obscenity, then surely investigators should be
able to use them when investigating the use of weapons of mass
destruction, acts of terrorism transcending national borders, chemical
weapons offenses, and other serious crimes that terrorists are likely
to commit.
It is also important to point out that section 201 preserved all of
the pre-existing standards in the wiretap statute. For example, law
enforcement must file an application with a court, and a court must
find that: (1) there is probable cause to believe an individual is
committing, has committed, or is about to commit a particular predicate
offense; (2) there is probable cause to believe that particular
communications concerning that offense will be obtained through the
wiretap; and (3) ``normal investigative procedures'' have been tried
and failed or reasonably appear to be unlikely to succeed or are too
dangerous.
Section 206 of the USA PATRIOT Act, like section 201 discussed
above, provided terrorism investigators with an authority that
investigators have long possessed in traditional criminal
investigations. Before the passage of the Act, multipoint or so-called
``roving'' wiretap orders, which attach to a particular suspect rather
than a particular phone or communications facility, were not available
under FISA. As a result, each time an international terrorist or spy
switched communications providers, for example, by changing cell phones
or Internet accounts, investigators had to return to court to obtain a
new surveillance order, often leaving investigators unable to monitor
key conversations.
Congress eliminated this problem with respect to traditional
criminal crimes, such as drug offenses and racketeering, in 1986 when
it authorized the use of multi-point or ``roving'' wiretaps in criminal
investigations. But from 1986 until the passage of the USA PATRIOT Act
in 2001, such authority was not available under FISA for cases
involving terrorists and spies. Multi-point wiretaps could be used to
conduct surveillance of drug dealers but not international terrorists.
However, such authority was needed under FISA. International terrorists
and foreign intelligence officers are trained to thwart surveillance by
changing the communications facilities they use, thus making vital the
ability to obtain ``roving'' surveillance. Without such surveillance,
investigators were often left two steps behind sophisticated
terrorists.
Section 206 of the Act amended the law to allow the FISA Court to
authorize multi-point surveillance of a terrorist or spy when it finds
that the target's actions may thwart the identification of those
specific individuals or companies, such as communications providers,
whose assistance may be needed to carry out the surveillance. Thus, the
FISA Court does not have to name in the wiretap order each
telecommunications company or other ``specified person'' whose
assistance may be required.
A number of federal courts--including the Second, Fifth, and Ninth
Circuits--have squarely ruled that multi-point wiretaps are perfectly
consistent with the Fourth Amendment. Section 206 simply authorizes the
same constitutional techniques used to investigate ordinary crimes to
be used in national-security investigations. Despite this fact, section
206 remains one of the more controversial provisions of the USA PATRIOT
Act. However, as in the case of multi-point wiretaps used for
traditional criminal investigations, section 206 contains ample
safeguards to protect the privacy of innocent Americans.
First, section 206 did not change FISA's requirement that the
target of multi-point surveillance must be identified or described in
the order. In fact, section 206 is always connected to a particular
target of surveillance. For example, even if the Justice Department is
not sure of the actual identity of the target of such a wiretap, FISA
nonetheless requires our attorneys to provide a description of the
target of the electronic surveillance to the FISA Court prior to
obtaining multi-point surveillance order.
Second, just as the law required prior to the Act, the FISA Court
must find that there is probable cause to believe the target of
surveillance is either a foreign power or an agent of a foreign power,
such as a terrorist or spy. In addition, the FISA Court must also find
that the actions of the target of the application may have the effect
of thwarting surveillance before multi-point surveillance may be
authorized.
Third, section 206 in no way altered the robust FISA minimization
procedures that limit the acquisition, retention, and dissemination by
the government of information or communications involving United States
persons.
Section 214 is yet another provision of the USA PATRIOT Act that
provides terrorism investigators with the same authority that
investigators have long possessed in traditional criminal
investigations. Specifically, this section allows the government to
obtain a pen register or trap-and-trace order in national security
investigations where the information to be obtained is likely to be
relevant to an international terrorism or espionage investigation. A
pen register or trap-and-trace device can track routing and addressing
information about a communication--for example, which numbers are
dialed from a particular telephone. Such devices, however, are not used
to collect the content of communications.
Under FISA, intelligence officers may seek a court order for a pen
register or trap-and-trace to gather foreign intelligence information
or information about international terrorism. Prior to the enactment of
the USA PATRIOT Act, however, FISA required government personnel to
certify not just that the information they sought to obtain with a pen
register or trap-and-trace device would be relevant to their
investigation, but also that the particular facilities being monitored,
such as phones, were being used by foreign governments, international
terrorists, or spies. As a result, it was much more difficult to obtain
a pen register or trap-and-trace device order under FISA than it was
under the criminal wiretap statute, where the applicable standard was
and remains simply one of relevance in an ongoing criminal
investigation.
Section 214 of the Act simply harmonized the standard for obtaining
a pen register order in a criminal investigation and a national-
security investigation by eliminating the restriction limiting FISA pen
register and trap-and-trace orders to facilities used by foreign agents
or agents of foreign powers. Applicants must still, however, certify
that a pen register or trap-and-trace device is likely to reveal
information relevant to an international terrorism or espionage
investigation or foreign intelligence information not concerning a
United States person. This provision made the standard contained in
FISA for obtaining a pen register or trap-and-trace order parallel with
the standard for obtaining those same orders in the criminal context.
Now, as before, investigators cannot install a pen register or trap-
and-trace device unless they apply for and receive permission from the
FISA Court.
I will now turn to section 215, which I recognize has become the
most controversial provision in the USA PATRIOT Act. This provision,
however, simply granted national security investigators the same
authority that criminal investigators have had for centuries--that is,
to request the production of records that may be relevant to their
investigation. For years, ordinary grand juries have issued subpoenas
to obtain records from third parties that are relevant to criminal
inquiries. But just as prosecutors need to obtain such records in order
to advance traditional criminal investigations, so, too, must
investigators in international terrorism and espionage cases have the
ability, with appropriate safeguards, to request the production of
relevant records.
While obtaining business records is a long-standing law enforcement
tactic that has been considered an ordinary tool in criminal
investigations, prior to the USA PATRIOT Act it was difficult for
investigators to obtain access to the same types of records in
connection with foreign intelligence investigations. Such records, for
example, could be sought only from common carriers, public
accommodation providers, physical storage facility operators, and
vehicle rental agencies. In addition, intelligence investigators had to
meet a higher evidentiary standard to obtain an order requiring the
production of such records than prosecutors had to meet to obtain a
grand jury subpoena to require the production of those same records in
a criminal investigation.
To address this anomaly in the law, section 215 of the Act made
several important changes to the FISA business-records authority so
that intelligence agents would be better able to obtain crucial
information in important national-security investigations. Section 215
expanded the types of entities that can be compelled to disclose
information. Under the old provision, the FBI could obtain records only
from ``a common carrier, public accommodation facility, physical
storage facility or vehicle rental facility.'' The new provision
contains no such restrictions. Section 215 also expanded the types of
items that can be requested. Under the old authority, the FBI could
only seek ``records.'' Now, the FBI can seek ``any tangible things
(including books, records, papers, documents, and other items).''
I recognize that section 215 has been subject to a great deal of
criticism because of its speculative application to libraries, and
based on what some have said about the provision, I can understand why
many Americans would be concerned. The government should not be
obtaining the library records of law-abiding Americans, and I will do
everything within my power to ensure that this will not happen on my
watch.
Section 215 does not focus on libraries. Indeed, the USA PATRIOT
Act nowhere mentions the word ``library,'' a fact that many Americans
are surprised to learn. Section 215 simply does not exempt libraries
from the range of entities that may be required to produce records. Now
some have suggested, since the Department has no interest in the
reading habits of law-abiding Americans, that section 215 should be
amended to forbid us from using the provision to request the production
of records from libraries and booksellers. This, however, would be a
serious mistake.
Libraries are currently not safe havens for criminals. Grand jury
subpoenas have long been used to obtain relevant records from libraries
and bookstores in criminal investigations. In fact, law enforcement
used this authority in investigating the Gianni Versace murder case as
well as the case of the Zodiac gunman in order to determine who checked
out particular books from public libraries that were relevant in those
murder investigations. And if libraries are not safe havens for common
criminals, neither should they be safe havens for international
terrorists or spies, especially since we know that terrorists and spies
have used libraries to plan and carry out activities that threaten our
national security. The Justice Department, for instance, has confirmed
that, as recently as the winter and spring of 2004, a member of a
terrorist group closely affiliated with al Qaeda used Internet service
provided by a public library to communicate with his confederates.
Section 215, moreover, contains very specific safeguards in order
to ensure that the privacy of law-abiding Americans, both with respect
to their library records as well as other types of records, is
respected. First, section 215 expressly protects First Amendment
rights, unlike grand jury subpoenas. Even though libraries and
bookstores are not specifically mentioned in the provision, section 215
does prohibit the government from using this authority to conduct
investigations ``of a United States person solely on the basis of
activities protected by the First Amendment to the Constitution of the
United States.'' In other words, the library habits of ordinary
Americans are of no interest to those conducting terrorism
investigations, nor are they permitted to be.
Second, any request for the production of records under section 215
must be issued through a court order. Therefore, investigators cannot
use this authority unilaterally to compel any entity to turn over its
records; rather, a judge must first approve the government's request.
By contrast, a grand jury subpoena is typically issued without any
prior judicial review or approval. Both grand jury subpoenas and
section 215 orders are also governed by a standard of relevance. Under
section 215, agents may not seek records that are irrelevant to an
investigation to obtain foreign intelligence information not concerning
a United States person or to protect against international terrorism or
clandestine intelligence activities.
Third, section 215 has a narrow scope. It can only be used in an
authorized investigation (1) ``to obtain foreign intelligence
information not concerning a United States person''; or (2) ``to
protect against international terrorism or clandestine intelligence
activities.'' It cannot be used to investigate ordinary crimes, or even
domestic terrorism. On the other hand, a grand jury many obtain
business records in investigations of any federal crime.
Finally, section 215 provides for thorough congressional oversight
that is not present with respect to grand-jury subpoenas. On a semi-
annual basis, I must ``fully inform'' appropriate congressional
committees concerning all requests for records under section 215 as
well as the number of section 215 orders granted, modified, or denied.
To date, the Department has provided Congress with six reports
regarding its use of section 215.
Admittedly, the recipient of an order under section 215 is not
permitted to make that order publicly known, and this confidentiality
requirement has generated some fear among the public. It is critical,
however, that terrorists are not tipped off prematurely about sensitive
investigations. Otherwise, their conspirators may flee and key
information may be destroyed before the government's investigation has
been completed. As the U.S. Senate concluded when adopting FISA: ``By
its very nature, foreign intelligence surveillance must be conducted in
secret.''
UPDATING THE LAW TO REFLECT NEW TECHNOLOGY
As well as providing terrorism investigators many of the same tools
that law enforcement investigators had long possessed in traditional
criminal investigations, many sections of the USA PATRIOT Act updated
the law to reflect new technology and to prevent sophisticated
terrorists and criminals from exploiting that new technology. Several
of these provisions, some of which are currently set to sunset at the
end of this year, simply updated tools available to law enforcement in
the context of ordinary criminal investigations to address recent
technological developments, while others sought to make existing
criminal statutes technology-neutral. I wish to focus on five such
provisions of the Act, which are currently set to expire at the end of
2005. The Department believes that each of these provisions has proven
valuable and should be made permanent.
Section 212 amended the Electronic Communications Privacy Act to
authorize electronic communications service providers to disclose
communications and records relating to customers or subscribers in an
emergency involving the immediate danger of death or serious physical
injury. Before the USA PATRIOT Act, for example, if an Internet service
provider had learned that a customer was about to commit a terrorist
act and notified law enforcement to that effect, the service provider
could have been subject to civil lawsuits. Now, however, providers are
permitted voluntarily to turn over information to the government in
emergencies without fear of civil liability. It is important to point
out that they are under no obligation whatsoever to review customer
communications and records. This provision also corrected an anomaly in
prior law under which an Internet service provider could voluntarily
disclose the content of communications to protect itself against
hacking, but could not voluntarily disclose customer records for the
same purpose.
Communications providers have relied upon section 212 to disclose
vital and time-sensitive information to the government on many
occasions since the passage of the USA PATRIOT Act, thus saving lives.
To give just one example, this provision was used to apprehend an
individual threatening to destroy a Texas mosque before he could carry
out his threat. Jared Bjarnason, a 30-year-old resident of El Paso,
Texas, sent an e-mail message to the El Paso Islamic Center on April
18, 2004, threatening to burn the Islamic Center's mosque to the ground
if hostages in Iraq were not freed within three days. Section 212
allowed FBI officers investigating the threat to obtain information
quickly from electronic communications service providers, leading to
the identification and arrest of Bjarnason before he could attack the
mosque. It is not clear, however, that absent section 212 investigators
would have been able to locate and apprehend Bjarnason in time.
Section 212 of the USA PATRIOT Act governed both the voluntary
disclosure of the content of communications and the voluntary
disclosure of non-content customer records in emergency situations; but
in 2002, the Homeland Security Act repealed that portion of section 212
governing the disclosure of the content of communications in emergency
situations and placed similar authority in a separate statutory
provision that is not scheduled to sunset. The remaining portion of
section 212, governing the disclosure of customer records, however, is
set to expire at the end of 2005. Should section 212 expire,
communications providers would be able to disclose the content of
customers' communications in emergency situations but would not be able
voluntarily to disclose non-content customer records pertaining to
those communications. Such an outcome would defy common sense. Allowing
section 212 to expire, moreover, would dramatically restrict
communications providers' ability voluntarily to disclose life-saving
information to the government in emergency situations.
Section 202, for its part, modernized the criminal code in light of
the increased importance of telecommunications and digital
communications. The provision allows law enforcement to use pre-
existing wiretap authorities to intercept voice communications, such as
telephone conversations, in the interception of felony offenses under
the Computer Fraud and Abuse Act. These include many important
cybercrime and cyberterrorism offenses, such as computer espionage and
intentionally damaging a Federal Government computer. Significantly,
section 202 preserved all of the pre-existing standards in the wiretap
statute, meaning that law enforcement must file an application with a
court, and a court must find that: (1) there is probable cause to
believe an individual is committing, has committed, or is about to
commit a particular predicate offense; (2) there is probable cause to
believe that particular communications concerning that offense will be
obtained through the wiretap; and (3) ``normal investigative
procedures'' have been tried and failed or reasonably appear to be
unlikely to succeed or are too dangerous. If wiretaps are an
appropriate investigative tool to be utilized in cases involving
bribery, gambling, and obscenity, as was the case prior to the passage
of the USA PATRIOT Act, then surely investigators should be able to use
them when investigating computer espionage, extortion, and other
serious cybercrime and cyberterrorism offenses.
Turning to section 220, that provision allows courts, in
investigations over which they have jurisdiction, to issue search
warrants for electronic evidence stored outside of the district where
they are located. Federal law requires investigators to use a search
warrant to compel an Internet service provider to disclose unopened e-
mail messages that are less than six months old. Prior to the USA
PATRIOT Act, some courts interpreting Rule 41 of the Federal Rules of
Criminal Procedure declined to issue search warrants for e-mail
messages stored on servers in other districts, leading to delays in
many time-sensitive investigations as investigators had to bring
agents, prosecutors, and judges in another district up to speed.
Requiring investigators to obtain warrants in distant jurisdictions
also placed enormous administrative burdens on districts in which major
Internet service providers are located, such as the Northern District
of California and the Eastern District of Virginia.
Section 220 fixed this problem. It makes clear, for example, that a
judge with jurisdiction over a murder investigation in Pennsylvania can
issue a search warrant for e-mail messages pertaining to that
investigation that were stored on a server in Silicon Valley. Thus,
investigators in Pennsylvania, under this scenario, can ask a judge
familiar with the investigation to issue the warrant rather than having
to ask Assistant United States Attorneys in California, who are
unfamiliar with the case, to ask a judge in the United States District
Court for the Northern District of California, who is also unfamiliar
with the case, to issue the warrant.
The Department has already utilized section 220 in important
terrorism investigations. As Assistant Attorney General Christopher
Wray testified before this committee on October 21, 2003, section 220
was useful in the Portland terror cell case because ``the judge who was
most familiar with the case was able to issue the search warrants for
the defendants' e-mail accounts from providers in other districts,
which dramatically sped up the investigation and reduced all sorts of
unnecessary burdens on other prosecutors, agents and courts.'' This
section has been similarly useful in the ``Virginia Jihad'' case
involving a Northern Virginia terror cell and in the case of the
infamous ``shoebomber'' terrorist Richard Reid. Moreover, the ability
to obtain search warrants in the jurisdiction of the investigation has
proven critical to the success of complex, multi-jurisdictional child
pornography cases.
Contrary to concerns voiced by some, section 220 does not promote
forum-shopping; the provision may be used only in a court with
jurisdiction over the investigation. Investigators may not ask any
court in the country to issue a warrant to obtain electronic evidence.
It is imperative that section 220 be renewed; allowing the
provision to expire would delay many time-sensitive investigations and
result in the inefficient use of investigators', prosecutors', and
judges' time.
Moving to section 209, that provision made existing statutes
technology-neutral by providing that voicemail messages stored with a
third-party provider should be treated like e-mail messages and
answering machine messages, which may be obtained through a search
warrant. Previously, such messages fell under the rubric of the more
restrictive provisions of the criminal wiretap statute, which apply to
the interception of live conversations. Given that stored voice
communications possess few of the sensitivities associated with the
real-time interception of telephone communications, it was unreasonable
to subject attempts to retrieve voice-mail message stored with third-
party providers to the same burdensome process as requests for
wiretaps. Section 209 simply allows investigators, upon a showing of
probable cause, to apply for and receive a court-ordered search warrant
to obtain voicemails held by a third-party provider, preserving all of
the pre-existing standards for the availability of search warrants.
Since the passage of the USA PATRIOT Act, such search warrants have
been used in a variety of criminal cases to obtain key evidence,
including voicemail messages left for foreign and domestic terrorists,
and to investigate a large-scale Ecstasy smuggling ring based in the
Netherlands.
The speed with which voicemail is seized and searched can often be
critical to an investigation given that deleted messages are lost
forever. Allowing section 209 to expire, as it is set to do in 2005,
would once again require different treatment for stored voicemail
messages than for messages stored on an answering machine in a person's
home, needlessly hampering law enforcement efforts to investigate
crimes and obtain evidence in a timely manner.
Section 217 similarly makes criminal law technology-neutral,
placing cyber-trespassers on the same footing as physical intruders by
allowing victims of computer-hacking crimes voluntarily to request law
enforcement assistance in monitoring trespassers on their computers.
Just as burglary victims have long been able to invite officers into
their homes to catch the thieves, hacking victims can now invite law
enforcement assistance to assist them in combating cyber-intruders.
Section 217 does not require computer operators to involve law
enforcement if they detect trespassers on their systems; it simply
gives them the option to do so. In so doing, section 217 also preserves
the privacy of law-abiding computer users by sharply limiting the
circumstances under which section 217 is available. Officers may not
agree to help a computer owner unless (1) they are engaged in a lawful
investigation; (2) there is reason to believe that the communications
will be relevant to that investigation; and (3) their activities will
not acquire the communications of non-trespassers. Moreover, the
provision amended the wiretap statute to protect the privacy of an
Internet service provider's customers by providing a definition of
``computer trespasser'' which excludes an individual who has a
contractual relationship with the service provider. Therefore, for
example, section 217 would not allow Earthlink to ask law enforcement
to help monitor a hacking attack on its system that was initiated by
one of its own subscribers.
Since its enactment, section 217 has played a key role in sensitive
national security matters, including investigations into hackers'
attempts to compromise military computer systems. Section 217 is also
particularly helpful when computer hackers launch massive ``denial of
service'' attacks--which are designed to shut down individual web
sites, computer networks, or even the entire Internet. Allowing section
217 to expire, which is set to occur in 2005, would lead to a bizarre
world in which a computer hacker's supposed privacy right would trump
the legitimate privacy rights of a hacker's victims, making it more
difficult to combat hacking and cyberterrorism effectively.
PROTECTING CIVIL LIBERTIES
While the USA PATRIOT Act provided investigators and prosecutors
with tools critical for protecting the American people, it is vital to
note that it did so in a manner fully consistent with constitutional
rights of the American people. In section 102 of the USA PATRIOT Act,
Congress expressed its sense that ``the civil rights and civil
liberties of all Americans . . . must be protected,'' and the USA
PATRIOT Act does just that.
In the first place, the USA PATRIOT Act contains several provisions
specifically designed to provide additional protection to the civil
rights and civil liberties of all Americans. Section 223, for example,
allows individuals aggrieved by any willful violation of the criminal
wiretap statute (Title III), the Electronic Communications Privacy Act,
or certain provisions the FISA, to file an action in United States
District Court to recover not less than $10,000 in damages. This
provision allows an individual whose privacy is violated to sue the
United States for money damages if Federal officers or employees
disclose sensitive information without lawful authorization. Section
223 also requires Federal departments and agencies to initiate a
proceeding to determine whether disciplinary action is warranted
against an officer or employee whenever a court or agency finds that
the circumstances surrounding a violation of Title III raise serious
questions about whether that officer or employee willfully or
intentionally violated Title III. To date, there have been no
administrative disciplinary proceedings or civil actions initiated
under section 223 of the USA PATRIOT Act. I believe that this reflects
the fact that employees of the Justice Department consistently strive
to comply with their legal obligations. Nevertheless, section 223
provides an important mechanism for holding the Department of Justice
accountable, and I strongly urge Congress not to allow it to sunset at
the end of 2005.
Additionally, section 1001 of the USA PATRIOT Act requires the
Justice Department's Inspector General to designate one official
responsible for the review of complaints alleging abuses of civil
rights and civil liberties by Justice Department employees. This
individual is then responsible for conducting a public awareness
campaign through the Internet, radio, television, and newspaper
advertisements to ensure that individuals know how to file complaints
with the Office of the Inspector General. Section 1001 also directs the
Office of Inspector General to submit to this Committee and the House
Judiciary Committee on a semi-annual basis a report detailing any
abuses of civil rights and civil liberties by Department employees or
officials. To date, six such reports have been submitted by the Office
of the Inspector General pursuant to section 1001; they were
transmitted in July 2002, January 2003, July 2003, January 2004,
September 2004, and March 2005. I am pleased to be able to state that
the Office of the Inspector General has not documented in these reports
any abuse of civil rights or civil liberties by the Department related
to the use of any substantive provision of the USA PATRIOT Act.
In addition to containing special provisions designed to ensure
that the civil rights and civil liberties of the American people are
respected, the USA PATRIOT Act also respects the vital role of the
judiciary by providing for ample judicial oversight to guarantee that
the constitutional rights of all Americans are safeguarded and that the
important role of checks and balances within our Federal Government is
preserved. As reviewed above, under section 214 of the Act,
investigators cannot utilize a pen register or trap-and-trace device
unless they apply for and receive permission from the FISA Court.
Section 215 of the Act requires investigators to obtain a court order
to request the production of business records in national security
investigations. Section 206 requires the Foreign Intelligence
Surveillance Court to approve the use of ``roving'' surveillance in
national security investigations. Sections 201 and 202 require a
Federal court to approve the use of a criminal investigative wiretap,
and sections 209 and 220 require a Federal court to issue search
warrants to obtain evidence in a criminal investigation.
Besides safeguarding the vital role of the judiciary, the USA
PATRIOT Act also recognizes the crucial importance of congressional
oversight. On a semiannual basis, for example, as noted before, I am
required to report to this Committee and the House Judiciary Committee
the number of applications made for orders requiring the production of
business records under section 215 as well as the number of such orders
granted, modified or denied. I am also required to fully inform the
Permanent Select Committee on Intelligence of the House of
Representatives and the Select Committee on Intelligence of the Senate
on a semiannual basis concerning all requests for the production of
business records under section 215. These reports were transmitted by
the Department to the appropriate committees in April 2002, January
2003, September 2003, December 2003, September 2004, and December 2004.
Moreover, I am required by statute to submit a comprehensive report on
a semiannual basis to the Permanent Select Committee on Intelligence of
the House of Representatives and the Select Committee on Intelligence
of the Senate regarding the Department's use of FISA. These reports
contain valuable information concerning the Department's use of USA
PATRIOT Act provisions, including sections 207, 214, and 218.
I would note that the Department has gone to great lengths to
respond to congressional concerns about the implementation of the USA
PATRIOT Act. The Department has, for example, provided answers to more
than 520 oversight questions from Members of Congress regarding the USA
PATRIOT Act. In the 108th Congress alone, in fact, the Department sent
100 letters to Congress that specifically addressed the USA PATRIOT
Act. The Department also has provided witnesses at over 50 terrorism-
related hearings, and its employees have conducted numerous formal and
informal briefings with Members and staff on USA PATRIOT Act
provisions. In short, the Department has been responsive and will
continue to be responsive as Congress considers whether key sections of
the USA PATRIOT Act will be made permanent.
CONCLUSION
In closing, the issues that we are discussing today are absolutely
critical to our Nation's future success in the war against terrorism.
The USA PATRIOT Act has a proven record of success when it comes to
protecting the safety and security of the American people, and we
cannot afford to allow many of the Act's most important provisions to
expire at the end of the year. For while we certainly wish that the
terrorist threat would disappear on December 31, 2005, we all know that
this will not be the case. I look forward to working with the Members
of this Committee closely in the weeks and months ahead, listening to
your concerns, and joining together again on a bipartisan basis to
ensure that those in the field have the tools that they need to
effectively prosecute the war against terrorism. Finally, Mr. Chairman,
we have taken the liberty of supplying the Committee with a copy of FBI
Director Mueller's testimony concerning the USA PATRIOT Act, which he
presented yesterday before the Senate's Committee on the Judiciary. We
ask that it be made a part of this Committee's hearing record, as well.
I look forward to answering your questions today.
Chairman Sensenbrenner. Before getting to questions, let me
just explain the process that I intend to use during this
hearing. The Chair has been making notes of the approximate
order in which Members have arrived on both sides of the aisle,
and after Mr. Conyers and I are done asking General Gonzales
questions, the Chair will alternate from side to side in the
order in which Members appeared and will let everybody know
what the list is with the order.
Because we have a limited amount of time today and because
those Members who are going to go to the Pope's funeral have to
get out to Andrews Air Force Base, the Chair announces right
now off the bat that he is going to strictly enforce the 5-
minute rule on everybody, including himself. We will have a
break for votes somewhere around 3. If all of the Members who
wish to ask questions have not asked their questions by then,
we will come back and the remaining Members will be able to ask
their questions.
So the Chair now recognizes himself for 5 minutes.
Attorney General Gonzales, as you know, I was instrumental
in putting the sunset into the PATRIOT Act because I felt that
the Congress should have a chance to have the opportunity to
review the effectiveness of the Act's provisions as well as use
that as a tool to do oversight over the Department of Justice.
Do you believe that the sunset should be completely repealed,
or do you think that there should be another sunset put in, and
if so, how far in the future do you think we should force
another review?
Attorney General Gonzales. Mr. Chairman, it was my
understanding that the sunset provisions were included in the
Act because of concerns about whether or not the Congress had
achieved the right balance between protecting our country and
securing our civil liberties. We've now had a period of time to
evaluate how these provisions work, how the Department has used
these provisions. I think it's a strong record of success. I
think the Act has been effective. I think the Department has
acted responsibly. I think there is sufficient information for
the Congress to make a determination that, in fact, these
provisions should be made permanent.
As a matter of reality, we all understand that the Congress
at any time, the next year or the year after, could at any time
evaluate whether or not certain provisions should be
discontinued, and so even if the decision were made to remove
the sunsets, that would not, in my judgment, in any way affect
the ability or the right or the authority of Congress to
examine and reexamine the way that these authorities are
working and the way that the Department is using these
authorities.
Chairman Sensenbrenner. One of the things that I believe
all Members of the Committee and particularly I have heard is
concerns about section 215. Let me say that--or make two
points. First of all, I am gratified at your testimony that the
Justice Department has never sought bookstore, medical, or gun
sale records under section 215.
Secondly, I would observe that if section 215 is repealed,
as some have advocated, all of these records would still be
available to law enforcement through the procedure of a grand
jury subpoena, and with a grand jury subpoena, it is up to the
recipient to hire a lawyer and move to quash the subpoena in
Federal court, whereas under section 215, there is judicial
review by the FISA court before the FISA warrant is issued
under section 215.
I salute your willingness to have some amendments to
section 215 to clarify the process under which the Justice
Department utilizes this section. Can you talk in a little bit
greater detail on how you suggest section 215 be amended to do
so?
Attorney General Gonzales. As I have indicated, Mr.
Chairman, the Department has taken the position in litigation
that we interpret 215 as including an implicit right for a
recipient of a 215 order to challenge that order. We also read
in the statute the right of a recipient to disclose the
existence of a receipt of an order to an attorney in order to
help them prepare such a challenge.
I, quite frankly, understand the concerns at the fact that
the statute doesn't have those rights explicitly spelled out in
the statute, and for that reason, the Department is quite
comfortable supporting an amendment to make it clear that, in
fact, those authorities should be included as part of a
statute.
Another important point that we would support is the
specific acknowledgement of what the appropriate standard is.
There is some question as to whether or not a relevance
standard is applicable in the statute. We believe it does. We
believe that is the applicable statute--standard, even though
that--and we think judges have interpreted 215 to impose a
relevance standard. But in order to remove any doubt or
ambiguity, we would support the explicit acknowledgment that
that is the standard that must be met whenever we go to the
Federal judge, that that is the standard that we have to meet
in order to receive a 215 order.
Chairman Sensenbrenner. Thank you. My time has expired.
The gentleman from Michigan, Mr. Conyers?
Mr. Conyers. Thank you, Mr. Chairman. Thank you.
I have within the time allotted to me three questions. One
is about the Brandon Mayfield incident in which the PATRIOT Act
was used.
The second is about terrorists' access to guns in which we
have a GAO study that shows, Mr. Attorney General, that out of
56 firearm purchase attempts by individuals designated as
suspected terrorists, 47 of them were permitted to involve
themselves in--were able to purchase weapons.
And my third question is about racial and religious
profiling in which since September 11 the Department of Justice
has interviewed over 3,000 Middle Eastern immigrants, counted
mosques and surveyed their attendees, registered over 83,000
Arab and Muslim visitors, interviewed 10,000 Iraqi nationals,
and I wanted to find out what all this profiling was for,
racial and religious profiling, which is contrary to FBI
guidelines, and what do we have to show for it?
Let's start with Brandon Mayfield, who really got hit up
pretty hard and I think, to make this a short conversation,
you've already conceded that the PATRIOT Act was involved,
right?
Attorney General Gonzales. What I have said, Congressman,
is that section 213 was not implicated--was not used. There
were stories, I believe, in the press that section 213 of the
PATRIOT Act was the basis for the search. That is not true.
What I have said is that the PATRIOT Act is implicated to
the extent that this was a FISA search and that FISA, the
provisions of FISA were amended by the PATRIOT Act. For
example, section 218, which deals with changing the standard
from the purpose to a significant purpose in targeting an
intelligence investigation, and also sections----
Mr. Conyers. Excuse me, sir. Sections 207 and 218 were
involved, right? Sections----
Attorney General Gonzales. Sections 207 and 218, that's
what I was just saying.
Mr. Conyers. Yes.
Attorney General Gonzales. Yes.
Mr. Conyers. So the answer is yes.
Attorney General Gonzales. To the extent that we're talking
about utilizing FISA and to the extent that the PATRIOT Act
amended provisions of FISA, yes. Provisions of the PATRIOT Act
were used in connection with that investigation, but I might
add that based on what I know today, and I'm limited in what I
can say because this matter is in litigation, I don't believe
that the Brandon Mayfield case is an example where there was a
misuse or abuse of a provision of the PATRIOT Act.
Mr. Conyers. Well, let me just ask you, can we on this
Committee cooperate with you to open up those Mayfield files so
we can learn exactly how the PATRIOT Act was used in this case?
The Seattle Times and others widely report PATRIOT Act use in
Portland, attorney investigation, Attorney General says, and
goes on and on and on, and I think you've said the same thing
here.
Attorney General Gonzales. Again, Congressman, this matter
is in litigation so I'm likely to be limited about what
information I can share with you, but I'm happy to go back and
see what we can do to provide information to the Committee in
connection with this case.
Mr. Conyers. Let's go on to the----
Attorney General Gonzales. The GAO report. Congressman, it
is up to Congress to determine who is able to possess a firearm
in this country. Congress designates certain categories of
people, based upon various actions, that make them disabled
from owning a firearm. If someone does not have such a
disability which has been recognized by Congress, even though
they're a terrorist, there are limits to what this Department
can do to prevent them----
Mr. Conyers. Would you be willing to support legislation
limiting a terrorist's access to such weapons?
Attorney General Gonzales. I think that we'd be willing to
consider looking at such legislation, Congressman----
Mr. Conyers. Well, 47 suspected terrorists were able to get
weapons. What----
Attorney General Gonzales. Let me try to explain that we
try to be very, very careful about who appears on the Terrorist
Watch List.
Mr. Conyers. Sure.
Attorney General Gonzales. There are various reasons that
people appear on the Terrorist Watch List, and so the fact that
someone appears on the Terrorist Watch List----
Mr. Conyers. That doesn't make them a good guy.
Chairman Sensenbrenner. The gentleman's time has expired.
The gentleman from California, Mr. Lungren?
Mr. Lungren. Thank you very much, Mr. Chairman, and welcome
again to the Committee, Mr. Attorney General.
Mr. Attorney General, when I've had town hall meetings in
my district, even though I'm a former Attorney General of
California, and try to explain it in legal terms, I've had
people raise section 213. They don't know it as delayed
notification. They know it by another name. And a concern is
always raised about this would necessarily lead to abuses and
somehow seems unfair.
This is an investigative authority that has been used in
cases other than terrorism. Could you just explain why that is
an important technique, an important authority, and how, if
extending it to terrorism cases, it changes the nature of it or
the seriousness of the authority given, or if it does not? That
is, what would you say to my constituents who ask me this
question at town hall meetings, despite my best efforts to
answer them?
Attorney General Gonzales. I would respond by maybe giving
them this hypothetical. I'm going to change some facts here
about a hypothetical and how this tool can be very useful in
dealing with terrorism, and that is, let's say, we uncover
ammonium nitrate, a large stockpile of ammonium nitrate. It is
a very important ingredient in creating a very dangerous bomb.
So we discover this. We don't know who all is involved in this
plot, this possible conspiracy. So we want to make sure we get
everyone involved in it. On the other hand, we want to grab it
because we're concerned that we may lose track of it and it may
be used to build a bomb and kill lots of people.
And so we get a delayed notification warrant that allows us
to come in. We substitute the ammonium nitrate with an inert
substitute and we're able to continue the investigation to the
appropriate time without jeopardizing a possible creation of a
bomb, an explosion killing hundreds of people. So that would be
an example of where the ability to go in and do a search
without notifying the target can be extremely beneficial until
the time comes when we have sufficient information to make our
case, and that would be an example that I would provide to your
constituents.
Mr. Lungren. And is that any different than what we do in
other kinds of criminal cases with the delayed notification
authority?
Attorney General Gonzales. Delayed notification warrants
have been in place for many, many years in ordinary criminal
investigations for a wide variety of crimes. People need to
understand that it is under the jurisdiction and supervision of
a Federal judge. We still have to show the probable--we still
have to meet the probable cause standards, and so----
Mr. Lungren. And that is all done prior to the time that
the entry is made or the----
Attorney General Gonzales. Absolutely. We go to a judge
like in every other case and we make our case, present the
facts, and the judge makes the determination whether or not we
meet the standards under the Constitution.
Mr. Lungren. Mr. Attorney General, you have said here and
you've said before, and I'll quote an article in the New York
Times that quotes you as warning Congress that we cannot afford
to assume the quiet of the day will mean peace for tomorrow and
the terrorist threat will not expire, even if parts of the
PATRIOT Act are allowed to. If we fail to renew these
provisions of the PATRIOT Act, could you tell us how this would
harm law enforcement, because we made sort of a broad statement
that it would, but specifically, how would it?
Attorney General Gonzales. One major way would be in the
sharing of information. If you look at the reports of the 9/11
Commission and the WMD Commission, both have acknowledged that
a serious weapon--the most effective weapon in dealing with
terrorism is in the sharing of information. And prior to the
PATRIOT Act, there were questions within the law enforcement
community about how much information could be shared by those
in the Intelligence Community with law enforcement, and those
questions were laid to rest by certain provisions in the
PATRIOT Act.
If those provisions were sunsetted, we would once again be
in a situation where law enforcement would be very, very
cautious in sharing of information. They would want to check
with their superiors, and so it would cause delays in
investigations and I think would needlessly tie the hands of
American investigators in dealing with this threat.
Mr. Lungren. Thank you, Mr. Attorney General. I might just
say for the record, while I understand what you say about
perhaps we don't have the need to put in the sunset in the
future, as a spur to Congress to make sure we do appropriate
oversight, I'm inclined to support a sunset provision in the
future, because, frankly, this is serious and the people need
to be assured that we are, in fact, doing the oversight that is
necessary.
Chairman Sensenbrenner. The time of the gentleman has
expired.
The gentleman from California, Mr. Schiff?
Mr. Schiff. Mr. Attorney General, I want to thank you for
being here. I'm a former Assistant U.S. Attorney and I greatly
value the work done by Justice Department people all over the
country.
I'm an original cosponsor of the House version of the
PATRIOT bill. In my view, the PATRIOT bill was a bargain. We
would give the Government greater ability to investigate and
prosecute terrorism suspects, and in return, we would take upon
ourselves greater responsibility for overseeing these more
powerful tools.
In my view, we have not kept up our part of the bargain. We
have not done adequate oversight of the PATRIOT bill in this
House or in this Committee. For the Justice Department's part,
I believe the Department has not been forthcoming with the
information that we would need also to do our job of oversight.
And in one area in particular, I have been most concerned.
This is an area both within, but largely without, the PATRIOT
bill and that is the detention of Americans and lawful
residents as enemy combatants. For 3 years now, I have been
raising this issue, what the standards ought to be for the
detention of an American, what due process should be afforded.
I introduced legislation 3 years ago to authorize the detention
of enemy combatants, but to ensure that there was access to
judicial review and access to counsel.
We've had no hearing on any of this legislation. Indeed,
requests to have a hearing just on the issue of the detention
of Americans have not been successful. We have had no hearing
on this subject. That's been our problem, our unwillingness to
set any limit on the power of the executive to detain an
American citizen. That's been our problem.
At the same time, efforts that I've made to learn
information from the Justice Department and the Defense
Department about our Government's own policies of when we treat
someone as an enemy combatant or when we treat them as a
criminal defendant--when we treat them as a defendant with all
of the rights that attach to that, when we treat them as an
enemy combatant with none of the due process that attaches to
that, I have been unable to get really any meaningful
information, even in classified form.
When you gave a speech to the ABA a year or two ago, it was
the most information I had ever heard about how we were
deciding when to treat someone as an enemy combatant. More
information than you gave publicly was denied me in classified
form. That cannot persist.
I find it odd that there aren't more voices in the Congress
raising this issue, that aren't demanding that Congress act to
set limits on the detention of Americans, to set due process
for the detainees at Guantanamo. Of course, all this thing, not
done for the terrorism suspects but done for all the rest of
us, to protect our civil liberties and our due process. I find
it very odd there have been so few voices in the Congress on
this issue, but I find I have a new and powerful ally on the
Supreme Court of the United States.
As you know, the District Courts have been conflicting
about whether the executive has the power to detain enemy
combatants and under what conditions. Justice Scalia, in one of
his dissenting opinions, commented, ``I frankly do not know
whether the tools are sufficient to meet the Government's
security needs, including the need to obtain intelligence
through interrogation. It is far beyond my competence or the
Court's competence to determine that, but it is not beyond
Congress's.'' We could not have, I think, a stronger admonition
that we need to act in the Congress, and so I'm in the unusual
position of asking you to help us to do our job.
Mr. Attorney General, do you believe, as I do, that the
Justice Department's power to detain enemy combatants, which I
believe the Department has to have in the war on terrorism,
don't you believe that power is strengthened when the Congress
acts to provide both the authority clearly and the due process
clearly? Isn't the power strengthened because it will now have
the imprimatur of both the legislative and executive branch
and, therefore, have the respect of the judicial branch?
Shouldn't we act so that we don't have piecemeal decision
making by the courts? Will you work with the Congress to
propose legislation setting out the due process for the
detention of Americans as enemy combatants and the detainees in
Guantanamo?
Attorney General Gonzales. Congressman, there is a lot
there to respond to. Generally, in the area of war, the framers
of the Constitution gave both to the executive branch and to
the legislative branch certain powers, and I think in the
exercise of the power, I, for one, as someone who looks at
these things, look at where you are on the continuing spectrum.
I mean, for example, if the--if America is attacked, I
think this President, as Commander in Chief, can take action to
defend this country without action by Congress. I think he has
the authority to do that. But if we're talking about taking
100,000 troops into another country for an extended period of
time, then it becomes, I think, more difficult whether or not--
can the Commander in Chief do that without any kind of
Congressional authorization.
I think the Framers probably had it right. It probably
works best, particularly when we talk about putting the lives
of men and women at risk, to have both branches working
together in most cases. Whether or not legislation is
appropriate, these are very, very difficult issues. I have
really discovered how difficult these issues have been these
past 4 years.
There is a reason why courts around this country reach
conflicting decisions about these issues, because they are so
hard. Many of the issues have never been confronted in our
courts before. It's a new kind of war, and some of the old
rules just don't apply. And so we try to deal with them.
And so to answer directly your question about whether or
not legislation would be beneficial, I'd have to look at the
circumstances. I'd have to look at the legislation, quite
frankly.
You're right. We waited too long, in my judgment, to
respond, to explain to the American people what we're doing and
why, and it was one of the things that I mentioned in that
speech you referred to, is that we waited. We waited a long
time because of concerns that we didn't want to say anything
that might help the enemy, might jeopardize something that
we're doing. But we finally acknowledged that we were hurting
ourselves, that the American people and the Congress really
needed to know what we were doing and why, and that was--I'm
delighted to know about your speech, because I did, I think,
talk a lot about the process that we used in designating
someone as an enemy combatant or having them go through the
criminal justice system.
Chairman Sensenbrenner. The time of the gentleman has
expired.
The time of the gentleman from Texas, Mr. Smith.
Mr. Smith of Texas. Thank you, Mr. Chairman.
General Gonzales, thank you for being here today. General
Gonzales, recently, you made the statement that you felt that
the PATRIOT Act is working and, in fact, it has helped to
prevent additional terrorist attacks. Could you be more
specific? Could you point to the number of individuals, the
number of would-be terrorists who might have been detected and
apprehended? Can you point to terrorist rings that might have
been disrupted or broken up to substantiate that statement?
Attorney General Gonzales. It's kind of hard to sort of
prove a negative or show a negative. I can certainly--I've got
a list here of where the PATRIOT Act has been beneficial or
helpful. I can certainly provide to the Congress and to you
examples of cases where the PATRIOT Act has been very helpful.
Mr. Smith of Texas. Let me just----
Attorney General Gonzales. I would just repeat what I said
earlier in a response to another question about, I mean, just
the sharing of information. There's a reason that there's not
been another attack in this country, quite frankly, and not
just the PATRIOT Act. I know this Congress worked very hard in
standing up a new Department, Homeland Security, so a lot of
actions taken by the Government in order to defend this
country.
But I think the PATRIOT Act has been very, very helpful. We
have in various cities around the country, in Portland, Oregon,
in Buffalo and Detroit, I mean, in New York City, rounded up
people who were engaged in plotting another terrorist attack.
Often times, we obtain convictions. Some critics of the
Administration have said, well, you've only got low-level
convictions. That's because we try to preempt something really
bad from happening, and so sometimes we cannot--we have to move
in early enough to prevent another attack and we don't have a
sufficient basis to prosecute someone for something really
serious.
Mr. Smith of Texas. General Gonzales, how many convictions
have you obtained?
Attorney General Gonzales. I don't know, but I can get that
information for you.
Mr. Smith of Texas. Okay. I would be curious about that.
Let me go to another aspect or another kind of terrorist
threat. You are aware, I am sure, that last year, the number of
individuals coming across our Southern border from terrorist-
sponsoring nations increased dramatically, and I'm just
wondering what we're doing to target the individuals who might
be coming into our country to commit terrorist acts.
And as a sort of a second part of that question, I point
out, which you also know to be the case, the Border Patrol
tells us that for every three individuals seeking to come into
the country illegally, two succeed. Two out of every three
people who want to come into the country illegally are able to
do so. We wouldn't be surprised, given that, that there might
not be another terrorist attack. But what is your response as
to how we can prevent that from occurring and how we target the
individuals who might be coming across the border who would
be--might be would-be terrorists from terrorist-sponsoring
countries?
Attorney General Gonzales. Congressman, I know the
immigration issue is one that you have spent a lot of time on
and you have a lot of expertise and knowledge about. It is a
very, very difficult issue. As I've said many times in talking
about this issue, because we have a country that traditionally
has invited immigrants, we embrace them, we want them to come
in our country, it is the fabric of our great country, is the
contributions of immigrants.
We have generally an open border in the South. People along
the border communities cross the border every day, back and
forth, so that they can go to work, provide for their families,
and that's the reality of life.
On the other hand, a new reality after September 11 is the
fact that we need to do what we can do to make it so that
terrorists cannot come into this country. Of course, the
Department of Homeland Security has now the primary
responsibility for dealing with that. I know Mike Chertoff, he
and I have spoken about this issue. We've invested money, the
Congress working with the Administration and making sure
additional monies are available for additional agents. Our
technology is getting better. But we still have a long way to
go. I mean, this is a very difficult issue. It's one that's
existed for many, many years. If it were one that could easily
be solved, it would have been solved a long time ago. But I
just--we'll continue to work with the Congress to try to
address it.
We understand it's a problem. I was in Mexico last week. We
talked about this issue with President Fox and the Attorney
General in Mexico, and so they understand that we consider it a
serious--we're seriously concerned about it, and I was
reassured by the Attorney General that they consider it an
issue for them. They realize how harmful it would be for their
economy, their tourism, if, in fact, we have a situation where
terrorists come up from Latin America, other countries, through
Mexico into our country and cause another attack. They realize
how damaging that would be, and so they're very concerned about
it, as well.
Mr. Smith of Texas. Thank you, General Gonzales. Regarding
my first question, the number of convictions, I understand it's
in the 80's to 90's range, and I'll look forward to that
information.
Attorney General Gonzales. Thank you.
Mr. Smith of Texas. Thank you, Mr. Chairman.
Chairman Sensenbrenner. The time of the gentleman has
expired.
The gentleman from California, Mr. Berman?
Mr. Berman. Thank you very much, Mr. Chairman, and thank
you, Mr. Attorney General, for being here and for at least
conveying the impression that you sometimes hear and even
understand the questions we ask. That's already an improvement
over your predecessor.
The PATRIOT Act sunset provisions you've discussed, I
frankly think most Members of Congress have come or will come
to the conclusion that many of these sunsetted provisions
should be--perhaps all of them should be continued, perhaps
refined. Mr. Chairman, I would hope this review, though, would
also take into account a number of unilateral actions--Mr.
Schiff certainly brought up one in the context of the enemy
combatants issue--that we should be considering that weren't
part of the PATRIOT Act but were developed in response to
September 11 and in our effort to fight a more effective war on
terror.
Some of these include policies instituted without any input
from Congress, mining data from public and non-public
databases, blanket closure of deportation hearings to the
public, blanket closure, denial of bond to whole classes of
non-citizens, altering the makeup of the Board of Immigration
Appeals in a way that has overwhelmed the Federal circuit
courts, and permitting the DOG's immigration attorney's to
unilaterally overrule an immigration judge when he has ordered
someone released on bond.
Today, Mr. Delahunt and I are introducing a law we call the
Civil Liberties Restoration Act. It doesn't repeal any part of
the PATRIOT Act. It doesn't impede in any way the ability of
agencies to share information. Our goal is simply to ensure
there are appropriate checks and balances on a number of
PATRIOT provisions as well as an opportunity for Congress to
address some of the unilateral policy decisions that I just
mentioned. They're all drafted, we think, in a way that tries
to achieve the balance that you and others have talked about. I
would hope at some point you might have a chance to take a look
at some of the proposals contained in that legislation.
But I think the 9/11 Commission was instructive on this
issue, and my question to you is--I'm going to mention--they
established some standards for the process that we are now
about to embark on and I'd like your reaction to it. The 9/11
Commission essentially said we should reexamine the specific
provisions that sunset, taking care not to renew any provision
unless the Government can show, one, that the power actually
materially enhances security, and two, that there is adequate
supervision of the executive's use of the power to ensure
protection of civil liberties.
Secondly, if the power is granted, there must be adequate
guidelines and oversight to properly confine its use.
And thirdly, on the issue I've just touched on, because the
issues of national security and civil liberties posed by anti-
terrorism powers that are not part of the PATRIOT Act sunset
are at least as serious as any posed by those provisions that
do sunset, Congress should undertake the broader review of
anti-terrorism powers both within and outside of the PATRIOT
Act, using the same standard of review that I just mentioned
for the sunset provisions.
Anything wrong with that as a methodological approach for
us to begin this effort?
Attorney General Gonzales. I think this country was founded
by people concerned about the exercise of power in our home
country and I think it is appropriate to always--to question
and to examine the exercise of power by the Government, and so
I welcome--that's why I welcome this debate.
I think that the record shows that the PATRIOT Act has been
effective. I think the record shows that the exercise of the
authorities granted to the Department of Justice have been used
wisely and judiciously. But I think that----
Mr. Berman. Let me just throw out one thing here. For
instance, in our bill that we're introducing today, the blanket
closure of all immigration hearings, why isn't it case by case?
Where there's a legitimate national security reason to close
that hearing, by all means, you ought to have the authority to
have that hearing closed. But why does there need to be a
blanket closure?
Attorney General Gonzales. Congressman, I wasn't involved--
--
Mr. Berman. Can you defend that decision?
Attorney General Gonzales.--I wasn't involved in that
decision, and so I probably do not know--in fact, I know I
don't know all the facts that were weighed or considered in
connection with that----
Mr. Berman. From what you know now, what do you think of
that?
Attorney General Gonzales. Well, I think that there were
mistakes made, quite frankly, and I think if you look at the IG
report about the detentions of immigrants, there were some
mistakes made. We've worked very, very hard--the Department has
worked hard to try and address and respond to the
recommendations made by the IG. But in terms of the blanket,
that would be something I would have to look at.
Chairman Sensenbrenner. The time of the gentleman has
expired.
The gentleman from Iowa, Mr. King?
Mr. King. Thank you, Mr. Chairman.
Mr. Attorney General, I thank you for being here to testify
today, I believe the first time in the position that you're in.
I welcome you to the Judiciary Committee.
A series of questions have arisen as I listened to your
testimony and the questions here today and one of them is with
regard to the question asked by the Ranking Member. Fifty-six
attempts to purchase guns and 47 of them were successful in
purchasing guns, and as I listened to the follow-up question, I
heard the phrase, ``suspected terrorists.'' Was there any
anticipation that suspected terrorists would be screened from
getting guns, and could you also speak as to under what
circumstances the other nine might have been prohibited?
Attorney General Gonzales. I don't have the information
about the other nine. We--unless Congress says that if you have
this disability or something or you have this characteristic or
you've done this kind of action, you're going to be entitled to
own a firearm in this country. As I've said before, we do not
want to see a situation where terrorists have the right to
possess a weapon in this country. But at the end of the day,
all we can do is enforce the law.
Under our current structure, you are disabled if you've
been involved in some kind of domestic abuse. You're disabled
if you're an illegal immigrant. You're disabled if you're a
felon. But in that list of disabilities is not the words
``terrorist.'' That doesn't mean that we just give up.
Obviously, when someone wants to purchase a weapon and there's
a hit on the Terrorist Watch List, we tried to alert the local
officials and see if we can get additional information to find
out if there is a way that this person can either be arrested
or deported or can we discover some kind of disability to
prevent them from getting a weapon. But if we can't do that,
they're entitled under the law to get a weapon.
Mr. King. We don't have a category for suspected terrorists
and I think that's the summary of that answer and I thank you.
Then on another subject matter, the PATRIOT Act requires
the Inspector General of the Department of Justice to provide a
twice-yearly report as to the civil liberties, whether they
have been violated by use of the PATRIOT Act, and it's my
understanding that those six reports have not found a single
violation of civil liberties.
Would you care to expand on that? I guess the question
comes to me is why do I continually hear the stories about
civil liberties being violated--and I'd expand my question a
little more in that I'm inclined to support eliminating the
sunset on the PATRIOT Act for the very reason of the
demagoguery that I hear about the abuse of the PATRIOT Act and
not finding evidence of it.
Attorney General Gonzales. You are correct, sir, that the
IG is required to submit a report semi-annually about abuses
under the PATRIOT Act, and to date, he has not been able to
report any abuses under the PATRIOT Act. I visited with our IG
several weeks ago and asked him again, are you aware of any
such abuses, and he said no.
And as I travel around the country and I've encouraged
other officials within the Department of Justice to go out and
try to solicit examples of where real abuses or misuses of the
PATRIOT Act have occurred, there's a lot of misinformation, a
lot of disinformation out there. Some people believe that
because certain provisions may have been struck down, that
means that the PATRIOT Act was somehow found unconstitutional,
and we discovered that, no, it related to a provision that was
passed by the Congress years before the PATRIOT Act.
And so I think that, again, I think the record of the
Department is a very good one regarding the use of the PATRIOT
Act. I think that the record also reflects that Congress
probably did a pretty good job in achieving a good balance
between protection of civil liberties and protection of this
country.
Mr. King. Thank you. And then with regard to section 215,
do you believe there's a reason to expand that to cover
domestic terrorism, as well?
Attorney General Gonzales. I would have to look at that,
Congressman. I don't have an answer for that, whether or not
215 should be expanded to include domestic terrorism.
Mr. King. And then off of Mr. Smith's statement with regard
to the--I mean, really, the amount of immigrants coming into
this country on the illegal side, it looks like that number is
over three million, if using that extrapolation of Mr. Smith's
remarks. And out of that huge haystack, how would you think it
would be logical that we could sort the terrorist needles out
of 3.4 million illegals?
Attorney General Gonzales. I think it would be difficult.
Obviously, from our perspective, I think it is good if we know
who is coming into this country and why they're coming into
this country. The key question is, how do we do that, and
that's something that we're working on and I know Members of
Congress have been thinking about and are continuing to work on
it, because it is a very important issue.
Mr. King. And I would suggest reducing the size of the
haystack. Thank you, General Gonzales. Thank you, Mr. Chairman.
Chairman Sensenbrenner. The gentleman's time has expired.
The gentleman from New York, Mr. Nadler?
Mr. Nadler. Thank you. Mr. Attorney General, my basic
problem with all of this is that the Administration, the
current Administration that's enforcing the PATRIOT Act seems
to have no sense of limits and no sense of due process
whatsoever when dealing with real or alleged terrorism cases. I
will cite, for instance, the memo that you wrote justifying
torture, which I am sure you won't characterize as such, but I
will.
Number two, the whole doctrine of the enemy combatants that
Mr. Schiff talked about in which the President has claimed the
power to point his finger at any American citizen--or non-
citizen--but any American citizen and say, you are an enemy
combatant because I say so on the basis of secret information
which I won't reveal to you or anyone else, and by that
declaration, I have the power to throw you in jail forever with
no due process, no hearing, no evidence, no nothing. Nobody, to
my knowledge, no executive in an English-speaking country has
made such a claim of tyrannical power since before Magna Carta,
and yet--and the Justice Department under your predecessor had
the nerve to say to the Federal courts that they didn't have
the jurisdiction to even question the fact or the authority of
the President.
Third, you stated in your opening statement that the
PATRIOT Act was well considered and well balanced. Well, maybe
it's balanced and maybe not, but it certainly wasn't well
considered. If you recall how it passed here, this Committee
considered in detail a PATRIOT Act, considered for 4 days,
voted on amendments, marked it up, unanimously reported the
bill on a Thursday, I believe. Over the weekend, the leadership
of the House together with the Administration took the well-
considered bill, which I thought was balanced, and threw it in
the garbage, wrote over the weekend an entirely new bill,
presented this 200-and-some-odd-page bill to the House with two
copies available, one for the Democrats, one for the
Republicans, warm to the touch at 10 in the morning. We started
the debate at 11 and voted on it at 1 and nobody had a chance
to read it. So it's certainly not well considered. It may be
well balanced, but certainly not well considered.
In light of all this, I have two specific questions about
the bill. There are provisions in the PATRIOT Act that are fine
and that have positively reformed the way intelligence is
gathered and used to protect the United States and provisions
that I think are over the top.
Last September, a judge in the Southern District of New
York, Judge Morero, ruled that section 505 dealing with
national security letters violated two constitutional
principles, the first amendment right to freedom of speech and
the right to be free from unreasonable searches and seizures
under the fourth amendment. Section 505 authorizes the FBI,
using only a piece of letterhead paper signed by a field agent
in charge of a local FBI office, to demand private information
without court review or approval, without the person being
suspected of any crime, without ever having to tell him or her
that it happened.
Moreover, the business from which the FBI gets these
private records is gagged and prohibited from notifying the
targeted individual, so they may never move in court to quash
this request or to even question it.
Do you believe that section 505 should be either stricken
or amended, question number one?
Question number two is that section 206 creates roving
wiretaps in intelligence cases which allows the Government to
get a single order that follows a target from phone to phone,
which I think makes sense. But in addition, last year's
Intelligence Authorization Act allows the Government to issue
John Doe wiretaps where the phone and facility is known but the
target is not. The combination of these two laws seems to allow
for a general wiretap, one that follows an unknown suspect from
unknown phone to unknown phone.
Should this section be changed to clarify that the
Government would specify either the person or the phone to be
tapped, or are we now into the business of general wiretaps
like the British Writs of Assistance that helped spark the
American Revolution?
Attorney General Gonzales. Thank you, Congressman. As to
505, I don't think that 505, I think, should be amended or
deleted. The court, as I understand it, found a problem with
the fact that a person did not have the right to contest the
national security letter or to tell anyone about the national
security letter, even though the Department took the position,
yes, you do, and we argued that in that litigation.
Mr. Nadler. That was one of the problems it found.
Attorney General Gonzales. I don't think that the court had
a problem per se with 505, and some people have characterized
this as a decision by the court that somehow struck down a
provision of the PATRIOT Act when an ACLU attorney himself even
acknowledged that, no, that wasn't the case. The problem was
the first amendment and the fourth amendment and it did not
relate to the PATRIOT Act, in my judgment.
In terms of roving wiretaps, in my reading of 206, I
believe that the Department has an obligation to identify a
specific target. We may not know the name of that person, but
we have to go before a Federal judge and give the judge enough
information that the judge is comfortable that we've satisfied
the probable cause standard as to a specific target being a
foreign power or an agent of a foreign power. That's the first
thing.
And so it's not the case that if we get a wiretap on person
A and we discover--a roving wiretap on person A and we
discover, whoops, this is not the right guy, let's listen to
the phone of this person, if we go to person B, we have to get
another order from a Federal judge. So it's not the case--we
get an order for one specific person.
Now, when we go to the judge, we also go to the judge
having to satisfy a probable cause standard as to a particular
location or facility or phone that the terrorists or target is
either about to use or is using. So it wouldn't be the case
where we'd be able to simply get an order from a judge to tap
the phones of everybody in an apartment building. The way it
works is we get a roving wiretap on, say, terrorist A and
terrorist A is on a cell phone. If he goes to a different cell
phone, that roving wiretap would go with that terrorist to that
second cell phone.
Chairman Sensenbrenner. The gentleman's time has expired.
Without objection, immediately following Mr. Conyers'
opening statement, a letter from Sarah W. Clash Drexler, Trial
Attorney of the Department of Justice Civil Division, to Elden
Rosenthal, an attorney in Portland, Oregon, relating to the
Brandon Mayfield case will be inserted.
The gentleman from Florida, Mr. Feeney?
Mr. Feeney. Thank you, Mr. Chairman, and thank you, General
Gonzales. Like yourself and a lot of proponents of the PATRIOT
Act as well as a lot of the critics and people that have voiced
concerns, I'm interested in finding the appropriate balance
between civil liberties and between protecting ourself against
this enormous threat from terrorism, which is very real indeed.
I note that, amongst other things, that the Constitution is
often not absolute when it comes to civil liberties. For
example, the prohibition against certain searches and seizures
is based on reasonableness, according to the Founders. What
that means to me is that whether a search or a seizure is
reasonable or unreasonable may depend on the threat at any
given time, so that it may not be an absolute bar. I think the
Founders invited us to change that bar based on the threat to
the United States and, of course, habeas corpus can be
suspended amongst other times, so certainly under article I,
during periods of emergency, the Congress has the right to
suspend habeas.
The other thing that I note here is there are not a lot of
legal precedents. So you've been referring to arguments by the
ACLU. We've got different lower court decisions recently. But
the last time we were attacked by a hostile foreign power
successfully on the continental U.S. was 1812. There hasn't
been a lot of litigation since 1812 on what the Government can
or can't do in this regard.
We did have a Civil War within our shores from 1860 to
1865. Chief Justice Rehnquist has written a very important book
about 15 years before the terrorist attack called All the Laws
But One after Lincoln's quote when he suspended habeas corpus
and was criticized for doing so and he said, ``Am I to suffer
basically the loss of the Union and all of our laws as we
defend one law, that being habeas?''
And I guess in that historical light, since we don't have a
lot of recent precedents on how to do this balance, I'd like to
ask you with respect to American citizens who are suspected
under the PATRIOT Act or other provisions of law of engaging in
war on terror whether you can compare them to, say, a
rebellious Confederate soldier. Lincoln thought that States per
se didn't have the right to secede. He treated individual
soldiers, at least at the beginning of the war, as individual
criminals. But he didn't give them any of the normal due
process that we would expect criminals. When he captured
somebody from Lee's army, he treated them as a prisoner of war.
So there's that question, and to ask you whether that has any
precedential value.
Lincoln's suspension of habeas corpus, of course, there
were, among other things, railroads being torn apart in
Maryland by sympathizers with the Southern rebellion and there
were Union troops that were attacked on the way. Habeas was
suspended. That was just one of several cases.
And finally, as you deal with whether the Civil War and
some of the other historical episodes in our history where we
have had to cut back on normally anticipated and expected civil
liberties, finally, I'd like to congratulate you, because
there's two things that we can with some comfort say after
September 11. One is that there have been no other successful
attacks, and while it's true, as you said, you can't prove a
negative, that but for the PATRIOT Act, we would have been
attacked successfully, we can note that our enemies have made
clear they want to attack us and they have been unsuccessful
since September 11. And as you say, to my knowledge, there has
been no proven civil liberty abuse under the PATRIOT Act, even
though people are invited to bring civil actions under certain
cases if they feel like they've been.
So I guess I'm interested in an historical aspect here
because we really have a huge dearth of constitutional
precedents dealing with how this pendulum swings, civil
liberties versus protecting us from foreign threats.
Attorney General Gonzales. Congressman, I'm not sure how to
answer that question. One point that I would want to emphasize
is that I don't view this, the PATRIOT Act or certain actions
by this Government, as reflecting a decision that protecting
our country is okay at the expense of civil liberties. I think
we can have both. I think we need to have both, quite frankly.
I think we need to protect our country. We need to protect our
civil liberties. I think that's very, very important.
I think the PATRIOT Act is an example of the Congress and
the President coming together and trying to achieve that
balance, because we all understand--there are reasons these
safeguards are in here. Even after the--six weeks after the
most horrific attack on this country, people still wanted to
have safeguards because Members of Congress and the President
understood that civil liberties, the protection of civil
liberties, was equally important.
And so I think that it would be a mistake to say that,
depending on what the circumstances of the moment are, that
sometimes civil liberties should be sacrificed in any way in
order to protect the security of this country.
Chairman Sensenbrenner. The gentleman's time has expired.
The gentlewoman from Texas, Ms. Jackson Lee.
Ms. Jackson Lee. Thank you very much, Mr. Chairman. Allow
me on my time a moment of personal privilege to welcome General
Gonzales and to recognize that our paths cross as lawyers in
the City of Houston, and let me applaud you for your historical
family background and the history that you're making on behalf
of the American people.
And I might say that my questioning is not personal. I
appreciate you very much and I wish your family and you best
and well as you proceed in this very important position.
We have spoken on occasion on some issues dealing with
civil rights and so I think you have a sense of my concern as
we look at the issue of either reauthorizing or making
permanent several positions--specific provisions of the PATRIOT
One. I think it should be well noted that I supported a PATRIOT
Act One legislative initiative as drafted in a bipartisan
manner by this same Judiciary Committee. That was not the bill
that arrived at the floor of the House and, therefore, I was
compelled to stand, I think, more importantly with the
Constitution and security by voting against it.
Let me just share very briefly some words that I think are
important to note. ``Individual liberty is individual power.
The nation which enjoys the most freedom must necessarily be in
proportion to its numbers the most powerful nation.'' That's
John Quincy Adams.
Another by Samuel Adams notes that ``the Constitution
should never be construed to authorize Congress to infringe,''
and then it goes on to say, ``on the ability of citizens to
redress their grievances or to subject the people to
unreasonable searches and seizures of their possessions,
papers,'' or, as I said, possessions.
I say that because we seemingly have conceded to losing our
rights because of the horrific act of 9/11. I think we are
consistent in this Congress and in this Judiciary Committee to
acknowledge, and I think you have acknowledged it, General,
along with the President, that our highest responsibility is to
secure the Nation and to secure the people of the United
States. I don't step away from that responsibility.
I would argue, however, that the tone in which we have
proceeded in the legislative initiatives have really done us
in, and I say that because your beloved Texas now seems to be
under the eye of the new Minutemen, Minutewomen. Border
watchers have eyes on Texas. So because we have either created
this atmosphere of fear, because we have either not done our
job, we have not protected civil liberties, we have not
enforced laws that we already have dealing with border
security, we now have men taking up arms and placing themselves
on the border, even to the extent that Border Patrol agents
have said it may be a dangerous condition. So I'm concerned
about the tone.
In addition, before the PATRIOT Act Two was pulled, we even
had a potential section 501 that would take away someone's
citizenship, which the Supreme Court under Justice Warren said
that the 14th amendment protects our citizenship unless we
voluntarily give it up.
It is the tone that has been created, and frankly, I don't
believe that the PATRIOT Act provisions really have made us
safer. I hope that we will vet them at a very high standard as
to the standard of how they have denied our civil liberties,
how they've created an atmosphere for Guantanamo Bay, and I do
not criticize the military that is doing their job. I do
criticize the existence of Guantanamo Bay for no reason. I
criticize the existence of a determination of enemy combatant,
which seemingly has no basis in law.
So I raise these questions with you. One, would you be able
to provide for me the numbers of Pakistani who were required to
sign up on the registration list in the early part of 2002-
2003, the numbers of them? You can't give me names. How many
were signed up? How many terrorists were found off of that
list? That is my first question, and you obviously may not have
that at your fingertips. I'd appreciate your issue on that.
Section 206 is the roving wiretap, and my question to you
on that, the value of the roving wiretap. It doesn't seem to
have enough restraints in terms of, again, the litmus test of
civil liberties.
And my last one is to ask prospectively, because of the
tone that's been created, do you think it's viable that we
should have as a provision of any PATRIOT Act the removal of
one's natural born citizenship that is protected under the 14th
amendment? And I thank the gentleman for his concern on these
questions.
Attorney General Gonzales. I don't have the information on
Pakistan. I'll see what I can learn and see what information
can be provided.
On 206, 206 is--allows the use of roving wiretaps in
connection with intelligence investigations, and the use of
roving wiretaps based on a probable cause standard is something
that's been around for many, many years, has been reviewed by
the courts, and I do believe does meet constitutional
standards.
In terms of removal of citizens, I don't recall the
specific provision you're referring to in what was, quote,
PATRIOT----
Ms. Jackson Lee. Section 501.
Attorney General Gonzales.--PATRIOT Two, but I'd be happy
to look at it and give you my views about it.
Chairman Sensenbrenner. The gentlewoman's time has expired.
Ms. Jackson Lee. I thank you.
Chairman Sensenbrenner. The gentleman from Texas, Judge
Gohmert.
Mr. Gohmert. Thank you, Mr. Chairman.
General Gonzales, I've been a fan of yours for a long time,
going back to my days as a judge and Chief Justice back in
Texas. Proud to have you here. Thank you for your testimony.
I want to go quickly into these things. Five minutes goes
fast. I was watching about 1 or 2 this morning a replay of some
of your testimony yesterday with the FBI Director before the
Senate and I wanted to clarify something with regard to section
215 and also 217. You had mentioned there was a lot of concern.
Obviously, there is a lot of concern. Under 215, where it
discusses that you or your designee may make an application for
order and it's of a U.S. person, and it goes on that that would
be to a judge of a court or magistrate, specifies that, and
then it says if the judge finds the application meets the
requirements of this section, then he will grant the warrant.
And I heard a lot of different discussion on different
standards of proof and I want to make sure that--and I don't
see anything in the section, haven't seen it, which says what
is the burden of proof when you go before that judge that's
designated and I want to make clear for the record--find out
clearly for the record what is that standard you have to prove
to that judge or magistrate.
Attorney General Gonzales. Our position is, is that the
standard that has to be met is a relevance standard, the same
kind of--similar to standards that you would have to show--to
meet in connection, say, with a grand jury subpoena.
You are correct that the relevance--that standard is not
explicitly mentioned in 215. Our experience is, is that judges
have construed 215 to impose a relevance standard. That is a
position that we have argued in litigation. It is one of the
amendments to 215 that the Department would support because we
believe that that is the appropriate standard, to include a
specific relevance reference.
Mr. Gohmert. Also, there's obviously been a lot of concern
about the sharing of information, and as you've heard from both
sides of the aisle, nobody's meaning this personal to you, but
apparently, there was a precedent back in the early 1970's that
had a counsel that was abusive enough he had one FBI file, went
to prison for it. And then I hear tell there's even been a
White House Administration so corrupt they might have even had
1,000 FBI files and didn't have an Attorney General with the
wherefore to go ahead and prosecute such a terrible abuse. So
you can understand why there'd be some concerns about those
things if it's true that you could really have that kind of
abuse at the highest levels. I'm not concerned about you or
this good President, but you never know. You can have a
President like that.
So who gets this information that you glean? Does it, under
your interpretation, ever get to the White House?
Attorney General Gonzales. Oh, absolutely not. We're
talking about matters relating to prosecution. Certainly when I
was in the White House and as the White House Counsel, we tried
to be very, very clear.
First of all, we tried to certainly limit any
communications between the White House and the Department of
Justice on any criminal matter. It would have to go through the
counsel's office because we were very, very concerned about in
any way of sharing information between the White House and the
Department of Justice, and even in communications between the
counsel's office and the Department of Justice, we were also
very, very careful about the information and the kinds of
questions we would ask about a particular case.
No, believe me, we understand how sensitive this
information is and we took great care to ensure that we didn't
get access, and the Department was very good in ensuring that
the White House did not get access to very sensitive
information.
Mr. Gohmert. And just so you know, there are those of us
who do not criticize an Attorney General or a Department of
Justice that if they need information about Iraq, they question
people that have knowledge about Iraq and don't go to New
Zealand to ask a farmer just so they don't look like they're
profiling.
But I want to ask you also, do you feel like there ought to
be a criminal code with regard to violations of national
security? Do we need that?
Attorney General Gonzales. Congressman, I don't know
whether or not we need it or not, quite frankly. I think that
our current laws seem to be working well, but obviously, if
you're serious about it, I'd be happy to think about it.
Mr. Gohmert. Well, thank you. I wish you would. And I am in
favor of a sunset provision. Thank you very much, Mr. Chairman.
Chairman Sensenbrenner. Thank you.
The gentlewoman from California, Ms. Lofgren.
Ms. Lofgren. Thank you, Mr. Chairman, and I am glad that we
are having this hearing. I have felt for the past several years
that we should have had some oversight in a formal sense in the
Committee. And I think back to those days after 9/11 and the
Committee really did work closely together, and I remember over
the weekend in this very room personally being here and working
on the drafts before the Committee with Viet Din and others who
were--and we had a unanimous vote, I believe, out of this
Committee.
Key to that was a sunset to make sure that we hadn't made a
mistake, and I think I'm going to want a continued sunset just
so it forces the Committee to review how this is going.
Along those lines, and you've mentioned in answer to others
that things are in litigation. I know that there's been times
that the Committee hasn't received information because of
security concerns. Every Member of the Committee has signed an
oath and we are authorized to receive classified information in
rooms that are here in the Capitol where you leave all your
beepers outside. I'm hopeful that we can get the information
you cannot give in a public session in a secure site so that we
can fully understand what's going on here so that we can do our
job.
I have a couple of questions on specific elements of the
Act. You mentioned 215. I'll tell you, I don't think any of us
had in mind libraries and bookstores when that provision was
put together, and you say it's never been used with a library
or a bookstore, and I'm wondering whether the Department would
support an effort to specify that personally identifiable
information in bookstores or libraries would be excluded from
section 215.
I'm also interested in section 218. I want to know how many
terrorism prosecutions have actually resulted from that
section. If you don't have it today, I'd like it later. I just
want to know the volume. How many have been issued and how many
prosecutions for terrorism-related activities have occurred?
And then I also--five minutes is not enough to get all our
questions done, but I do have a general concern about--well,
many things, but also habeas corpus. The very initial draft of
the first PATRIOT Act sent over from the Department had a
provision to suspend habeas corpus. As we know, in article I,
section 9, suspension of habeas corpus is a power reserved to
the legislative branch. It never really made it to print, but
we're not going to suspend habeas corpus. But, I'm concerned
that in a back door sort of way, we've ended up with that
result.
And one of the questions that's not in the PATRIOT Act
itself, but it's part of the general effort on terrorism
abatement, is the use of witness provisions, material witness
statutes. The last update I've been able to find is from 2003,
where the statute had been used supposedly 50 times. I don't
know what's happened since that time, but here's the concern
that's been raised in the press, that the material witness
statute has been used but that it hasn't been used to produce
testimony. So I'd like to know how many times this has been
used in the Department's efforts to combat terrorism and how
many of those individuals actually ended up testifying, because
I do think that that is an issue relative to due process.
I'm hopeful that we will have a number of hearings. I
haven't had a chance to ask the Chairman yet, but I'm wondering
if you could address the three questions that I've asked.
Attorney General Gonzales. As to 215, whether or not I
could support a provision that would exempt from the reach of
215 personal information from libraries and bookstores?
Ms. Lofgren. Personally identifiable information from
libraries, bookstores, and I think also medical records.
Attorney General Gonzales. Okay. I have said before--I
mean, the Department has no interest in rummaging around and
learning about people's personal library habits and looking at
their medical records. We are concerned about making sure we
have information about people who use libraries to plot for
purposes of engaging in some kind of terrorist activity.
We know that, certainly in the criminal context, libraries
have been used and there have been investigations, there have
been subpoenas of library records in the criminal context, and
we've had convictions----
Ms. Lofgren. Well----
Attorney General Gonzales.--and my own judgment,
Congresswoman, is that we should not allow libraries to become
safe harbors for terrorists.
Ms. Lofgren. If I may----
Chairman Sensenbrenner. The time of the gentlewoman has
expired.
Ms. Lofgren. I'll give a follow-up question to you.
Chairman Sensenbrenner. The gentleman from Indiana, Mr.
Hostettler?
Mr. Hostettler. Thank you, Mr. Chairman, and thank you,
General Gonzales, for being here, and congratulations on your
appointment and thank you for your willingness to take on such
a tough job. I, like many of my colleagues, have received
numerous questions since passage of the PATRIOT Act and my
support of the PATRIOT Act regarding section 213. I would like
to read to you the fourth amendment to the Constitution, and I
have a question for you afterwards.
Quote, ``The right of the people to be secure in their
persons, houses, papers, and effects against unreasonable
searches and seizures should not be violated and no warrants
shall issue but upon probable cause supported by oath or
affirmation and particularly describing the place to be
searched and the persons or things to be seized,'' end quote.
I don't see in the fourth amendment to the Constitution a
requirement for prior notification. Do you see that in the
fourth amendment----
Attorney General Gonzales. No, and----
Mr. Hostettler.--in the text of the fourth amendment?
Attorney General Gonzales.--and I believe the Supreme Court
in a case called, I think, Dowdia v. United States, has
indicated that the fourth amendment does not require that
notice be given when the warrant is executed, that it is
constitutionally permissible to execute the warrant and to
provide notice after the fact.
Mr. Hostettler. And, in fact, even though I'm not
suggesting that we do this, but the text of the amendment
itself does not even require for any notification whatsoever,
be it prior or delayed notification, the text of the amendment.
Attorney General Gonzales. Well, I presume your reading is
correct and there does not appear to be a requirement for
notice, but obviously we do give notice, and even in the
connection of section 213, notice is given in every case.
Mr. Hostettler. Thank you. I have a question also about
section 215. You, I believe, stated in your oral testimony that
a recipient of a section 215 order is allowed--can be allowed
to challenge that order prior to its execution. Did I hear that
correctly?
Attorney General Gonzales. It is our position that under
215, a recipient could challenge that order----
Mr. Hostettler. Prior to its execution? Prior to the order
being executed?
Attorney General Gonzales. And someone--if information is
received, we believe that a person could seek to have that
evidence or information suppressed in a subsequent proceeding.
But yes, you do have the opportunity to challenge the execution
of that order, in our judgment. We understand that 215 does not
make that explicitly clear and we are prepared to support an
amendment that would make that clear.
Mr. Hostettler. Would there be a situation that you can
foresee where that would be harmful to the investigation and
potentially, therefore, the national security, if that process
was allowed to be challenged prior to the execution?
Attorney General Gonzales. I suppose that it could be.
Obviously, we would do work as quickly as we could to make sure
that that issue was heard and resolved by a judge as quickly as
possible.
Mr. Hostettler. Thank you very much. I yield back the
balance of my time.
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Scott.
Mr. Scott. Thank you. Thank you, Mr. Chairman.
Mr. Gonzales, we've heard--in talking about FISA--you keep
talking about terrorism. FISA is not limited to terrorism or
even criminal activity, is it? General intelligence, foreign
intelligence----
Attorney General Gonzales. Sure, yes.
Mr. Scott.--a trade deal, spying on people. So we're not
necessarily talking about crimes.
Attorney General Gonzales. That is correct.
Mr. Scott. Is a roving wiretap limited to terrorism?
Attorney General Gonzales. Umm----
Mr. Scott. I mean, if you get a warrant----
Attorney General Gonzales. No. No. No. A roving wiretap is
not limited to terrorism.
Mr. Scott. Not even----
Attorney General Gonzales. Roving wiretaps have been used
in the criminal context for many, many years.
Mr. Scott. But if you get a FISA wiretap, you don't even
have to start off with a crime, just foreign intelligence.
Attorney General Gonzales. Yes, that's correct.
Mr. Scott. You can get a roving wiretap, no crime even
involved.
Attorney General Gonzales. But again, let me emphasize that
this is not an authority that's used in the sole discretion of
the Government. We do have to go to a Federal judge----
Mr. Scott. Okay. Well----
Attorney General Gonzales.--establish probable cause----
Mr. Scott. Probable cause of what?
Attorney General Gonzales. Establish probable cause that
the target is either a foreign power or an agent of a foreign
power and probable cause with respect to the location or
facility that the target is either about to use or is using a
certain telephone facility.
Mr. Scott. I didn't hear you say a crime is about to be
committed because that's not part of a roving wiretap, and the
probable cause, most people think you're talking about probable
cause of a crime. That's not what you're talking about, is it?
No.
Now, are you willing to limit this power to terrorism?
Attorney General Gonzales. Am I willing to limit section
206 to terrorism?
Mr. Scott. Right.
Attorney General Gonzales. Mr. Scott, I would have to look
at that, and I'd be happy to consider that, but again, I do
believe that this is an important tool----
Mr. Scott. Okay, but----
Attorney General Gonzales.--in dealing with the war on
terrorism----
Mr. Scott. You keep talking about terrorism, and let's
limit it to terrorism. We already ascertained that some of
this, no crime is even implicated because you're talking about
foreign intelligence.
Let me ask you another question on the roving wiretap. We
had some discussion when we passed that thing that you ought to
ascertain that the target is actually in the house where the
phone is before you start listening to it. You can put these
taps all over the place--cell phone, home phone, pay phone on
the street corner if they use the phones. Shouldn't we require
that you ascertain that the target is actually the one using
the phone before you can start listening in?
Attorney General Gonzales. There is no ascertainment
requirement even in the criminal context with respect to wire
and electronic communications. There is an ascertainment
requirement with respect to oral communications, such as
bugging.
Mr. Scott. Should we put that in the bill, that if you're
going to wiretap a person, you ought to ascertain that it's
actually the person you're listening to, particularly because
it may not be his home phone? It may be his next door
neighbor's home phone if you know he keeps using that phone.
Attorney General Gonzales. Well, I think that the statute
is written in such a way that you have to have probable cause
that, in fact, the target----
Mr. Scott. You've got probable----
Attorney General Gonzales.--is using or about to use a
particular phone.
Mr. Scott. And so you should--so there is implicated an
ascertainment requirement that you've got to ascertain that the
target is actually in the next-door neighbor's house before you
start listening to the next door neighbor's phone.
Attorney General Gonzales. It's my understanding that under
206, you have to first identify a target and you cannot go up
on a roving wiretap unless the target is either using or about
to use the phone.
Mr. Scott. And so you wouldn't be offended with an
ascertainment requirement.
On the----
Attorney General Gonzales. I would have to look at that,
Mr. Scott.
Mr. Scott. Okay. We went to great lengths to change the law
on foreign intelligence to suggest that you can get one of
these warrants--it used to be if the purpose of the warrant was
foreign intelligence, now if it's a substantial objective, not
the primary objective. If the purpose of the warrant--of
getting a FISA wiretap is something other than foreign
intelligence, what is it? What are the other excuses for
getting the FISA wiretap?
Attorney General Gonzales. If it's other than foreign
intelligence?
Mr. Scott. Right.
Attorney General Gonzales. You mean----
Mr. Scott. The primary purpose is something other than
foreign intelligence.
Attorney General Gonzales. Criminal activity.
Mr. Scott. You mean criminal activity without probable
cause, without having to go through the rigamarol of getting a
probable cause warrant?
Attorney General Gonzales. Mr. Scott, I would want to study
this and get back to you on this.
Chairman Sensenbrenner. The time of the gentleman has
expired.
The gentleman from North Carolina, Mr. Coble.
Mr. Coble. Thank you, Mr. Chairman.
General, several months ago, a constituent came to me and
he said, ``We've got to get rid of this PATRIOT Act. It has the
trappings of creating a crisis in this country.'' I said,
``Well, give me an example where it has adversely affected
you.'' He said, ``I can't do it.'' I said, ``Well, give me an
example of where it's adversely affected anyone you know or
anyone you've heard about.'' ``Can't do it.'' I said, ``Well,
you're not helping me any.''
General, I fear this exchange between my constituent and me
typifies widespread misunderstanding about the PATRIOT Act,
that many people have heard how onerous and how bad it is, but
they can't give you examples where they've been adversely
affected. I think that applies to 213. I'm glad you mentioned
213 because I've talked to many people who believe that delayed
notification of a search warrant was born when the PATRIOT Act
was enacted, and, of course, it was available long before then,
as you pointed out. Of course, that's not subject to being
sunsetted.
Let me shift gears to the library situation. Some folks
have referred to it as the ``angry librarians' provision,'' and
I'm not sure that's accurate. I don't know that the librarians
are angry, but I think they're perplexed, probably, and perhaps
because of misunderstanding, because I'm told, and I think you
may have alluded to this this afternoon, I don't think any
inquiries have been leveled against libraries, is that correct,
under the PATRIOT Act?
Attorney General Gonzales. We have not exercised the
authorities under section 215 for library records. Let me make
one thing clear, because I want to be obviously forthcoming
with the Committee. There have been library records produced to
the FBI for purposes of a foreign intelligence investigation.
We've gone forward to librarians. In some cases, the libraries
have come to us concerned about the library habits of some of
their customers and they have shared information with us
voluntarily.
So I don't want to leave the Committee the impression that
there hasn't been some exchange of library information with the
FBI, but it is true that section 215--that authority under
section 215 has not been used to obtain library records.
Mr. Coble. All right. Let me ask you this, Mr. Attorney
General. If the information can be obtained with a grand jury
subpoena, which it can be done, that does not require a court
order, why would the Department of Justice want to use a FISA
order that requires a court order and limits the type of
information that the Department can obtain?
Attorney General Gonzales. It may involve a very, very
sensitive investigation where we may not want to jeopardize the
source or the investigation itself, and therefore, we feel more
comfortable pursuing a 215 order rather than a grand jury
subpoena.
Mr. Coble. Permit me to revisit the Mayfield case, and I
realize there's litigation here and you're probably restricted
as to how much you can say about that, but is it not true that
the Attorney General is currently investigating whether or not
PATRIOT Act authorities were abused in the case? I'm told that
it is ongoing.
Attorney General Gonzales. It is and has been looked at and
is being looked at. I don't know if that review is complete,
yes, by the Department.
Mr. Coble. And finally, Mr. Attorney General, to follow up
on Mr. Scott's questioning regarding the roving wiretaps, are
there not two separate entities, that is to say, a roving
wiretap for intelligence matters, on the one hand, and then a
roving wiretap for criminal matters on the other, is that not
correct?
Attorney General Gonzales. Section 206 deals with roving
surveillance under FISA. There is authority--other authorities
that govern the use of roving authorities in criminal matters.
Mr. Coble. Well, I want to reiterate what you said earlier
about the importance of preserving our civil liberties while at
the same token arming ourselves against would-be terrorists,
and I, not unlike you, I believe we can do both. And I don't
know you, Mr. Attorney General, but I like you. I like your
style. Good to have you up here.
Mr. Chairman, I beat the red light.
Chairman Sensenbrenner. And now the other gentleman from
North Carolina, Mr. Watt.
Mr. Watt. Thank you, Mr. Chairman, and first, let me
apologize to General Gonzales for not being present to actually
hear his testimony. Unfortunately, I have two hearings going on
at the same time and I was trying to save CDBG and deal with
the PATRIOT Act at the same time.
I got a briefing from my staff to try to avoid territory
that had been covered by other Members of the Committee, so I
want to zero in on one thing in which I was involved during the
Committee's consideration of the PATRIOT Act and that's the
Privacy and Civil Liberties Oversight Board. You're familiar
with the provisions in the law that talk about that?
Attorney General Gonzales. I believe I am, Congressman.
Mr. Watt. Okay. All right. I'll just read, because I was
interested to know what had transpired about the privacy
oversight because privacy was obviously a major issue that we
were confronting when we were trying to deal with this piece of
legislation. So I got the Congressional Research Service to
pull up--send us a report, and here's what it says.
It says the Conference Committee version of the
intelligence reform legislation retained the mandate for a
Privacy and Civil Liberties Oversight Board. While the board
would have most of the review and advice responsibilities
contained in the Senate-adopted version of the legislation, it
would not have subpoena power, but was authorized to request
the assistance of the Attorney General in obtaining desired
information from persons other than Federal departments and
agencies. Now, this is the intelligence reform bill that got
passed and that they are giving me the update on.
It goes on to say that no nominations to membership
positions on the Privacy and Civil Liberties Oversight Board
were made in the early weeks of the 109th Congress and the
President's fiscal year 2006 budget contained no request for
funds for the panel.
Now, my question to you is, if--obviously Congress decided
this Privacy Oversight Review Board was an important
ingredient. You've superimposed this intelligence reform stuff
on top of the PATRIOT Act. First of all--two questions. First
of all, do you think it's important to have a Privacy Review
Board----
Attorney General Gonzales. I think it is important that we
review the actions of the Government to ensure that the privacy
rights of Americans are protected.
Mr. Watt. Okay. Well, at least we are together at that
point.
Second question, how could we extend the sunsetted
provisions of the PATRIOT Act if the Congress having mandated--
this says it was a mandate to create this board, and the
President not having made any nominations to this board and not
proposed any money to fund the operations of the board. I mean,
it seems to me that that would be directly contrary to the
wishes of the Congress.
Attorney General Gonzales. Well, I can assure you,
Congressman, that the protection of the privacy rights and the
civil liberties of all Americans is a priority for our
President. I don't--not being in the White House, I don't know
about the discussions or decisions regarding the budget. I do
know--my latest information, it may be stale now, but my latest
information is that the White House is in the process of
identifying people to place on the board.
But in the interim, as you know, the President did sign an
Executive Order creating a Privacy Board which----
Mr. Watt. No, he didn't create a Privacy Board. He created
a Privacy Officer and he did that actually before we--the
intelligence reform bill went through and we mandated for that
purpose--Congress mandated for that purpose a board that was to
be staffed, not an officer inside some department.
Attorney General Gonzales. Respectfully, Congressman, it is
a board chaired by the Deputy Attorney General and includes
representatives from various agencies----
Mr. Watt. All insiders.
Chairman Sensenbrenner. The time of the gentleman has
expired.
The gentleman from Arizona, Mr. Flake?
Mr. Flake. Thank you, Mr. Chairman, and thank you, General
Gonzales.
Let me just try to bring this to the real world for a
minute here with a real world scenario and see if we're on the
same page here. You may be familiar with one of the Fox News
analysts, Andrew Napolitano, who wrote an op-ed a while ago,
and let me just read a portion of it and get your response to
it.
Quote, ``The Government can now, for the first time in
American history, without obtaining the approval of a court,
read a person's mail and prosecute a person on the basis of
what is in the mail.'' Is that an accurate reflection of the
law?
Attorney General Gonzales. I'm not--I don't believe it is
an accurate reflection of the law. Again, if we're talking
about the exercise of authorities under the PATRIOT Act, in
most cases, it does involve the Department going to a Federal
judge and getting permission to use those authorities.
Mr. Flake. I understand in most cases, but is that possible
now for the first time in history, without obtaining the
approval of a court, to read a person's mail and then prosecute
the person on the basis of what is in that mail?
Attorney General Gonzales. That sounds to me like it would
be a search and I think that you would need probable cause to
do that. You would need a warrant to do that and you'd have to
go to a Federal judge in most cases, except, I think, in very
rare circumstances, if in the event of an emergency, but even
then, you'd have to go to a judge after the fact and explain
what you've done. So I don't think that what he has said is
accurate.
Mr. Flake. But it would be accurate if you say in certain
cases, you would have to go to the judge after the fact----
Attorney General Gonzales. But those are very rare and
extraordinary circumstances, and so----
Mr. Flake. How many of those circumstances have we had?
Attorney General Gonzales. I'm not aware of any.
Mr. Flake. None?
Attorney General Gonzales. I'm not aware of any.
Mr. Flake. If there are some, could you get back to my
office with that information?
Attorney General Gonzales. I can certainly look into it.
Mr. Flake. Thank you. I appreciate that. There's a lot of
talk about a wall between intelligence and law enforcement that
the PATRIOT Act helped eliminate. Is it possible that that talk
of this wall has been exaggerated. Let me just read a statement
from Judge Royce Lamberth and then get your reaction.
``The FISA court has long approved, under controlled
circumstances, the sharing of FISA information with criminal
prosecutors as well as consultations between intelligence and
criminal investigations where FISA surveillances and searches
have been conducted.'' Is that the case? Do you dispute that
statement?
Attorney General Gonzales. I think that in actual practice,
it's been the case that law enforcement--before the PATRIOT
Act, there was a reluctance amongst the law enforcement
community and the Intelligence Community about sharing of
information and that law enforcement personnel were concerned
that if they shared too much information--if too much
information was shared with intelligence, the Intelligence
Community, it might jeopardize a prosecution. And so people
were being very careful and there was a reluctance to share
information, and I think after the PATRIOT Act, that reluctance
has gone away.
Mr. Flake. So the wall was more a function of a culture
that existed than----
Attorney General Gonzales. Well, there certainly was a
culture that existed. Rightly or wrongly, I think people wanted
to be very, very careful because people in--most people in
Government really do--are concerned about doing the right thing
and not doing things that in any way infringe upon the civil
liberties of ordinary Americans. And so, you know, I certainly
wouldn't characterize it, I mean, as a--I think people were
just doing what they thought was the right thing to do.
Mr. Flake. Now they're less reluctant to infringe, or----
Attorney General Gonzales. Well, now they know. They've
been given clear guidance that this is appropriate conduct and
it is lawful conduct.
Mr. Flake. With regard to delayed notification, what is the
longest period of time now that a person can be under
surveillance without their knowledge?
Attorney General Gonzales. My understanding is that there
have been six cases where the judge has said--has not imposed a
time to provide notice that it had been an ongoing
investigation. The judge has said, well, we'll see how the
investigation proceeds. So there have been six such cases. You
put those aside, I think the longest time period has been 120
or--it's been 180 days.
Mr. Flake. A hundred-and-eighty-days?
Attorney General Gonzales. Yes.
Mr. Flake. But in those six cases, it's fair to assume that
some of those investigations may still be going on or they're
ongoing?
Attorney General Gonzales. I don't know. That may be, in
fact, be the case, but I'm not sure.
Mr. Flake. Very quickly, before my time runs out, let me
just be clear about the Justice Department's preference or
position, I guess, on sunsets. I want to commend the Chairman
for insisting on the sunset. I think to the extent that we've
been careful and circumspect, it's largely as a result of the
sunset provision. Are you saying that the Justice Department
wants to do away with the sunset provision?
Attorney General Gonzales. I don't know whether or not the
sunsets are necessary. I fully trust Congress to perform its
oversight functions. I hope Congress doesn't need the sunset
provisions in order to perform its oversight functions. The
sunsets were put in there initially because of the fact that
people were concerned that decisions had been reached quickly
about the bill. We now have a history of three-and-a-half
years, and so my view is that Congress has all the authority it
needs to perform the oversight necessary in the way that this
Department exercises the authorities under the PATRIOT Act.
Chairman Sensenbrenner. And the time of the gentleman is
expired, and to paraphrase President Reagan, you trust and we
verify.
The gentleman from Massachusetts, Mr. Delahunt.
Mr. Delahunt. Yes. I thank the Chairman and I welcome
General Gonzales and I welcome your words.
To segue the gentleman from Arizona, Mr. Flake, you
referenced you have confidence in Congress to exercise its
oversight responsibilities and functions in our constitutional
order, but I share the same concern that my colleague to my
left, Mr. Schiff, articulated earlier to you about the lack of
cooperation during the course of the past 4 years in terms of
providing that information to Members of Congress so that we
can exercise our oversight. So I would suggest that when we
talk about sunsets, sunsets have played a very, I think,
important role because now we seem to be engaged hopefully in a
new way.
I've had my own experience. I served on the--as an adjunct,
if you will, on the Government Reform Committee during its
inquiry into the conduct of some individuals in the office of
the Boston FBI and it was only under threat of subpoena that we
were able to secure a prosecutorial memorandum that dated back
some 40 years that had nothing in there whatsoever that could
be interpreted to be endangering of national security.
So I really hope that we are moving, and I listened to your
words and I respect those words, but I hope we're moving in a
different direction in terms of the relationship between this
branch, this Committee, and the Department of Justice.
You know, I think it's critical in a viable democracy to
emphasize that the concerns of a citizen to their privacy are
absolutely essential, and at the same time that as much
transparency as possible is important in terms of the
confidence of the American people in its Government, in the
integrity of its Government. It's a balancing act, and I
understand that.
But myself and Mr. Berman filed legislation today. He
alluded to it earlier in his question to you about the issue of
data mining. It's a concept that I'm sure you're familiar with
where there's a broad search of both public and non-public
databases without a particularized need being articulated to
discern whether there are patterns that may implicate some sort
of terrorist cabal. He and I, as part of a bill that, with the
support of the Chairman, came out of Committee, didn't go
anywhere when it got further along the legislative process, but
that would have required each head of a Federal agency to
report to Congress about their initiatives regarding data
mining.
The American people are concerned about privacy. I would
suggest that this is something that I hope you would review
carefully and support if we are going to have the kind of
relationship between the branches, and specifically this
Committee, that you have expressed and others have expressed.
I don't know if you're familiar with that particular
provision, but if you have any comments, I'd like to hear them.
Attorney General Gonzales. I look forward to reading your
legislation. I can say that I, like other Americans, would be
very concerned about this issue. I think protection of privacy
rights are very, very important, and rather than comment any
further, I'll read the legislation and be happy to talk to you
about it.
Mr. Delahunt. I look forward to hearing from you. I'd make
one final observation, is that, you know, when we see that
there are 14 million new papers that have been classified, 25
percent over the previous year according to the latest reports,
I just want to let you know that I think many of us, and I
think on both sides of the aisle, are very concerned about
what's happening as far as a culture of concealment, if you
will, and secrecy in Government that's got to be addressed.
Attorney General Gonzales. Thank you, Congressman.
Chairman Sensenbrenner. The gentleman yields back.
The gentleman from Virginia, Mr. Goodlatte.
Mr. Goodlatte. Thank you, Mr. Chairman. Thank you for
holding this hearing.
General Gonzales, welcome, and thank you for the fast start
you've gotten as our new Attorney General and thank you for
coming to speak with us today.
I'd like to call your attention to a couple of other issue
areas that very much relate to our security but are not
directly on the PATRIOT Act. I would like to follow up on the
topic that the gentleman from Texas, Mr. Smith, addressed
earlier, and that is immigration. I have legislation in the
Congress to address a problem that was identified by the State
Department last year with regard to the Visa Diversity Program,
or also called the Visa Lottery Program, whereby individuals
are given not just a visitor's visa, but permanent resident
status in the United States not based upon any particular job
skill, not based upon having any close family relationship with
anybody, but simply by having a little bit of information put
into a computer. Millions of people around the world do this,
and then 50,000 are drawn out every year, the lucky winners,
and receive green cards to come to the United States.
Last year, the State Department's Inspector General
testified before the Immigration Subcommittee that the Visa
Lottery Program posed a significant risk that hostile
intelligence officers and terrorists, especially those with no
previous criminal backgrounds, could apply for the lottery and
be awarded permanent resident status, and I wonder if the
Department of Justice has conducted any analysis on the threat
posed by this program. Have you or anybody else at the
Department examined this report from the State Department?
Attorney General Gonzales. I'm not aware of any
examination, Congressman, but I'd be happy to look at it. It
sounds--it concerns me, so I'd be happy to look at it and get
back to you.
Mr. Goodlatte. That would be very helpful and I would
appreciate that.
Now, the other area that I'm concerned about is in the area
of piracy, particularly intellectual property theft, which is
increasingly viewed as being something that's being used by
various subversive organizations, including terrorist
organizations, as a fundraising mechanism to fund their
operations. As author of the ``No Electronic Theft Act, or NET
Act,'' and other legislation dealing with piracy, and as co-
chair of the Congressional International Anti-Piracy Caucus,
I'd like to first commend the Department of Justice for its
work in setting up the Intellectual Property Task Force. This
has, frankly, been long overdue.
For years, we've had legislation on the books to enforce
these laws, but not enough priority was made for it. That was
done last year. Other efforts have been made by the Department,
as well, to combat intellectual property theft. Projects like
Operation Fast Link is a promising example of how our
Government can work internationally to ensure that the messages
sent are that intelligence piracy is a serious crime, and I'm
wondering what your intentions are as the new head of the
Department. Is that leadership going to continue in the effort
to investigate and prosecute these types of intellectual
property crimes?
Attorney General Gonzales. Absolutely. It will remain a
priority for the Department. In fact, I'm going out to, I
believe, California perhaps later this month to talk about this
issue to some of the groups out there. We realize that it
remains a problem. It is a vehicle to finance potential
terrorism activities and so, yes, very much so a priority. We
continue to consider the work of the Intellectual Property Task
Force as very, very important.
Mr. Goodlatte. Good. Thank you very much. The last area I'd
like to address is the problem that we're seeing all across the
country. It's particularly a very serious problem in my
district. Our United States Attorney for the Western District
of Virginia, John Brantley, briefed Senator Warner and I last
week on the problem with methamphetamines. This seems to be a
particularly great problem in rural areas all across the
country. The Shenandoah Valley has been particularly hard hit.
It's a problem that entails being able to get hold of
various basic household commodities and make some very
dangerous drugs from them. I'm not sure that people realize
that they're injecting Drano and battery acid and phosphine
gas, some of the things that go into making methamphetamines,
when they inject this, but it is a serious problem in rural
areas and I'm wondering, is the Department under your
leadership committed to meeting the increased need for law
enforcement efforts because of the prevalence of this
particular type of illegal drug activity in rural parts of
America?
Attorney General Gonzales. Absolutely, yes. Just in my 2
months as Attorney General, in my visits with law enforcement,
I have been struck by how often I've been told how serious this
problem is all across the country.
Chairman Sensenbrenner. The gentleman's time has expired.
The gentleman from New York, Mr. Weiner.
Mr. Weiner. Thank you, General. Welcome, and thank you for
taking so much of your time.
I hope you recognize by this point in the hearings, both in
the other body and here, what the fundamental problem is that
you face with Congress now, is that, in essence, what the
PATRIOT Act reflected was a desire on the part of the
Administration of greater authority, and you essentially said
to Members of Congress like myself, trust us that we're going
to use it wisely, that we're going to use it with discretion,
we're going to use it with restraint. And that is why, when you
say, well, why do you need something like delayed notification,
well, you have to trust us and trust the judge because,
frankly, the individual that is being--that the search is over
is not going to know and be able to fight to defend their own
rights.
And where you've lost so many of us, including people like
myself who have been eager, as a New Yorker and someone who
considers himself as a moderate on law enforcement things, is
this cloak of secrecy that has dominated the discussion over
the last 4 years. Obviously, a rise in FISA activity and yet
there's less information than there has perhaps ever been.
Reports of secret arrests and detentions without charges. What
it does is it makes us, who were happy about a sunset,
completely unwilling to say either, first of all, extend them,
or even further, to eliminate the sunset altogether.
And then you compound it with other actions in other parts
of the Justice Department that completely run counter to real
efforts to fight terrorism--the virtual elimination of the COPS
program, for example. Your predecessor sat in that chair and
said what a great program it was. The President of the United
States praised the program, and yet the Justice Department has
virtually eliminated it. Homeland security starts at home. Not
in this Administration. The COPS program hiring component has
all but been eliminated, literally taking cops off the streets.
So that what Members like myself and Mr. Delahunt and Mr.
Schiff and folks on the other side of the aisle are speaking to
is this notion that you made a compact. Give us more authority
and entrust us to use it wisely. In order for that compact to
be successful, in order to get us to say, okay, we agree 4
years later that that has been the case, there has to be more
information.
And what has this attitude on the part of the Justice
Department brought? Well, it's brought on one side you saying,
well, people are creating phantoms of lost liberty, and I think
some on the left have said, well, there's enormous intrusions
on our lives. Only with more full disclosure to Congress, only
with a more full debate that goes on between you and the
American public is this going to happen. And frankly, that
hasn't happened.
You have exaggerated its value. I believe many on the left
have exaggerated the harm it's caused. But fundamentally,
you've lost the trust of so many in this Congress. When people
like myself and Paul Wellstone of blessed memory vote for the
PATRIOT Act, it is because fundamentally we believe it's
important to make things safe and we trust those in positions
of power to enforce it wisely, and I think you've let us down.
You've let us down because you've let us down in ways that
are fundamental and easy to fix. When Congress asks for
cooperation, as Mr. Delahunt says, your first reflex shouldn't
be no. When there's questions about secret arrests and
detentions, you know, frankly, if your concern is about
reinforcing the idea that the Justice Department is operating
prudently, talk more freely. Have a frank discussion about
what's going on in the world. We should not wait until the day
of a Senate hearing to find out that there are 35 instances
that section 215 was used and 155 times that the sneak-and-peek
provisions were used under the PATRIOT Act.
It is that level of information that, frankly, I think
might have even helped your side of the argument if they had
been released more steadily over the course of the last 4
years. So that, I would argue, is your problem.
Can I ask a question? I want to make sure I understand it.
Section 215, the sneak-and-peek provisions that have delayed
notifications, if we were to take away those expanded rights,
there are no searches that could not happen. It would simply be
a question of whether or not a judge was notified first or
whether the citizen was notified first, is that right? But both
of those cases, you'd still be able to do the investigations?
Attorney General Gonzales. I don't know--you're talking
about 213. I don't know whether or not we would be able to
continue the investigation. The fact that we would in some
cases have to make a hard choice whether or not to try to take
possession of, say, contraband in order to prevent it--say
drugs, for example--we'd have to make a hard choice between
taking a chance and letting the drugs be distributed in order
that we could identify all the Members of a very serious drug
ring or take possession of the drugs and then jeopardize not
knowing who those folks are.
So if 213, the authorities under 213 were eliminated, I
think that it could jeopardize some very important
investigations.
Chairman Sensenbrenner. The gentleman's time has expired.
And last but not least, the gentleman from Alabama, Mr.
Bachus.
Mr. Bachus. Thank you.
Mr. Attorney General, I want to address something that you
may not have heard too much about, but that's a 1970 explosive
permit law. Now, that law, when Homeland Security came into
existence and we passed a lot of the new dictates under the
laws we're talking about reauthorizing, the ATF started
requiring an explosive permit for anyone that worked in the
mines that was around explosives. They asked different mine
workers to fill out an application to continue to handle these
explosives.
Now, I'll give you an example. I had three mine workers in
my district that were taken off the job as a result of their
applications. Now, let me tell you about one that agreed
earlier today to let me use his name. He's Mickey Birchfield.
He's worked 15 years in the mines. He's transported employees
and explosives for 15 years. About a month or two ago, he
filled out one of these applications and he listed that 17
years ago, when he was 18 years old, he had a disorderly
conduct misdemeanor and he said, ``I think I paid a $50 fine.''
Well, the ATF checked and didn't find any record of this, so
the only way they knew about it is he said, you know, ``When I
was 18 years old, I got arrested for disorderly conduct.''
He has been reassigned off that job to a lower-paying job
and he is waiting for the ATF appeal process, and I said 3
weeks ago. It's 3 months ago, and they still haven't acted on
that. First of all, they've taken the disorderly conduct thing
when he was 18 and taken him off the job.
My question to you is, are you familiar with the ATF and
this explosive permitting procedure that they've established,
because I have another coal miner that actually was taken off
the job and because they didn't have a place for him, he's
actually unemployed now. He has actually decided to retire. But
do you know, are there any guidelines to how long the ATF can
hold these cases, and why--I mean, I just--could you just tell
me maybe why, under what rationale they would----
Attorney General Gonzales. I wish I could, Congressman. I
don't know. I presume that there are guidelines in place. I'd
be happy to go back and look to see what's there and see if we
can provide you some additional information about these cases.
Mr. Bachus. Yes, and you see, that's a real case that is
happening today. The reason I bring that up is that you have
asked for Homeland Security--you've asked for new powers, new
tools to combat terrorism and we've given you these tools and
we hope that there are safeguards in place that we won't have
what I consider a civil liberty violation against this guy.
He's actually been--his pay has been reduced. Two other
individuals in the district, one is a result of two DUIs, one
in 1975 and one in 1984. He's no longer permitted to work in
the mines. As I said, he was a year and a half away from
retirement and he was told that this process is taking over a
year, so he just retired.
Attorney General Gonzales. Maybe we should have our staffs
talk and we'll get some additional information. I'll see what
we can find out.
Mr. Bachus. You know, I guess what aggravates this, when we
hear, and you've got questions about this, when we hear that
people that are on the Terrorist Watch List can purchase guns
and then you get a guy that when he was 18 years old had a
disorderly conduct thing and he can't work at his job, it
raises all kinds of questions. And I know that what I've been
told is the list is overly broad and it has a lot of
inaccuracies in it, but, you know, it's being used every day
when people try to move around this country.
And it's not just these. It's just one thing after another,
like I talked to a group this week, Epileptic Foundation, and
you'd be amazed at children with--they have these magnetic
devices that are implanted within their body. The----
Chairman Sensenbrenner. The gentleman's time has expired.
Mr. Bachus.--what they have to go through when they go
through screening at the airport. So they're put aside and
sometimes 30, 40 minutes, even though they have a letter
saying----
Chairman Sensenbrenner. The gentleman's time has expired.
The gentleman from Maryland, the late Mr. Van Hollen.
[Laughter.]
Mr. Van Hollen. Thank you, Mr. Chairman, and Mr. Attorney
General, thank you for your testimony. As one of the newest
Members of the Committee, it's, I guess, my privilege to be one
of the people batting clean-up at the end here, but thank you
for your testimony.
I actually want to pick up on a related issue which has to
do with the GAO report that came out recently showing that a
number of individuals on the Terrorist Watch List were able to
go into gun shops and legally purchase weapons in this country.
I just want to pursue that line of questioning for a minute,
because as I understand it right now, if you're on the
Terrorist Watch List, you're not able to board an aircraft.
You're able to be detained at the airport and not allowed to
board an aircraft, is that right?
Attorney General Gonzales. That is correct.
Mr. Van Hollen. And the purpose of that, I assume, is to
protect the public safety, is that right?
Attorney General Gonzales. That is correct.
Mr. Van Hollen. All right. Does it make sense to you that
we stop a person from boarding the airline in order to protect
the public safety, that individual can turn around, get in
their car, go to the local gun shop and buy 20 semi-automatic
assault weapons? Does that make sense to you, Mr. Attorney
General?
Attorney General Gonzales. I think that we should be doing
everything we can to ensure that people that are, in fact,
terrorists, shouldn't have weapons in this country, the truth
of the matter is. But unless they are disabled from having a
weapon under the statute, there's not much that we can do,
other than maybe trying to get them out of the country or find
a way to see if there's any kind of disability under the
statute that would allow us to deny them a firearm.
And so, again, at the end of the--I mean, we don't want
terrorists to have firearms, but at the end of the day, we have
to enforce the law. Unless they have a disability under the
statute, then they're entitled to a weapon.
Mr. Van Hollen. No, I thank you for that and I understand
the law is the law and we have to enforce it. My question
really is, would you be willing to work with Congress and do
you think it's a good idea to try and change the law where
somebody is legitimately on the Terrorist Watch List? I
understand there are issues with respect to that, but if
someone is determined to have been legitimately put on the
Terrorist Watch List, would you not agree--I'm asking whether
you would not agree that it doesn't make sense from a public
safety point of view to allow that person to go to the gun shop
and buy 20 semi-automatic assault weapons.
Attorney General Gonzales. Well, what I can agree is that
if you're a terrorist, you shouldn't have a weapon in this
country, and so I do agree with you on that.
Mr. Van Hollen. Let me ask you this, Mr. Attorney General.
One of the issues that is raised is the quality of the
Terrorist Watch List.
Attorney General Gonzales. Right.
Mr. Van Hollen. What mechanism is in place today for an
individual whose name has been put on that list to contest
whether or not they should be legitimately put on that list?
What do you have today to make sure that the quality of that
list is actually good and people aren't wrongfully put on that
list?
Attorney General Gonzales. That is a good question. I don't
know the answer to that, but I'll be happy to get back to you
on it.
Mr. Van Hollen. It seems to me that there's been a lot of
discussions with respect to the fact that the quality of the
list may not be so good and, therefore, we can't necessarily
use that to deny people their right to go purchase a handgun,
and that's absolutely true, but it seems to me that somebody
who's being denied access to an airplane, if they're wrongfully
put on that list, it should be very clear to every American
citizen who thinks they're wrongfully put on that list what
mechanism procedure they have to get their name off.
Attorney General Gonzales. I don't want the Committee to
leave with the impression that we have a shabby Terrorist Watch
List. Obviously, no one wants that. We all want the best list
possible and we work very, very hard to make sure that the list
is accurate. We get information from a variety of agencies who
are looking at different threats. Say someone is concerned
about terrorist financing, and so someone may end up on the
Terrorist Watch List because of concerns about their support of
terrorist activity--financial support of terrorist activities.
So I say all of that sort of defending the--I mean, there's
been a great effort within the Administration to try to make
the Terrorist Watch List a valuable tool and one that we can
depend on. But it's a difficult issue and I look forward to
working with you on possible legislation. I'd be happy to
consider it.
Mr. Van Hollen. Thank you, and Mr. Chairman, if I could
just close making two points, to the extent that we can depend
on it and it's a valuable tool and someone is on there because
they pose a risk to public safety, it seems to me that the
question of whether they should be allowed to go down to the
local gun store and buy 20 handguns or semi-automatic or
whatever weapons it may be is one that we need to change to the
extent that they're legitimately on there.
And to the extent they're not legitimately on there, I
would very much appreciate an answer to the question about how
an American citizen goes about getting their name off it if
they think they're wrongfully on it. It seems to me it's
obviously a great unfair burden for a citizen to be placed on
the Watch List without any mechanism that is familiar to the
public for how they go about getting their name off of it.
Attorney General Gonzales. I think the Watch List has been
a valuable tool. I think it has been helpful in dealing with a
terrorist threat. Obviously, there have been mistakes that have
been made, but I look forward to working with you.
Chairman Sensenbrenner. The time of the gentleman has
expired.
General, let me say that I think this was an extremely
valuable hearing in kicking off our review of the sunsetted
provisions of the PATRIOT Act. You have done well.
Attorney General Gonzales. Thank you.
Chairman Sensenbrenner. I hope your next invitation to come
up here, whenever that may be, as a friendly invitation because
these types of exchanges, I think, help clarify the issues,
help do away with a lot of the hype that has come about as a
result of this law in particular, and we look forward not only
to working with you and the Department relative to this
legislation, but also in doing oversight which makes you do
your job better and the American public have the confidence
that you're doing your job better.
Ms. Jackson Lee. Mr. Chairman----
Mr. Conyers. Mr. Chairman----
Chairman Sensenbrenner. So thank you again for coming.
Ms. Jackson Lee. Mr. Chairman, would you yield for a
question?
Mr. Conyers. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Michigan.
Mr. Conyers. I join in that thankfulness that you were here
and have started this routine with us. It's very important. And
I'd like unanimous consent to add in after my opening remarks
``Seeking the Truth from Justice'' from Laura Murphy, former
Director of the American Civil Liberties Union.
Chairman Sensenbrenner. Without objection.
Ms. Jackson Lee. Mr. Chairman, could you yield for a
question, please?
Chairman Sensenbrenner. The gentlewoman from Texas.
Ms. Jackson Lee. Thank you, Mr. Chairman. Will the record
remain open or will we be able to submit questions for the
record? I have a question about Dr. Yaha Ghoul, a thoracic
surgeon who is in detention at this point.
Chairman Sensenbrenner. The record will remain open
relative to questions relative to the general oversight of the
USA PATRIOT Act. I don't know if the letter the gentlewoman is
referring to relates to the USA PATRIOT Act. If so, the record
will remain open for that purpose. But on matters related to
other than the PATRIOT Act, I think it is best to deal with
that issue in another context.
Ms. Jackson Lee. I thank the Chairman, and I'd like to
submit for the record ``On Liberty'' by John Stuart Mill, 1859.
I'd like to submit that into the record.
Chairman Sensenbrenner. I assume the copyright has expired
on that, so without objection.
[The article of Mr. Mill follows in the Appendix]
Chairman Sensenbrenner. The Committee stands adjourned.
Ms. Jackson Lee. I thank the Chairman.
[Whereupon, at 3:27 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
USA PATRIOT Act: Sunsets Report prepared by the
U.S. Department of Justice
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Chapter I of On Liberty by John Stuart Mill, submitted for the Record
by the Honorable Sheila Jackson Lee
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<all>