<DOC>
[109th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:21023.wais]
IMPLEMENTATION OF THE USA PATRIOT ACT: SECTIONS 201, 202, 223 OF THE
ACT THAT ADDRESS CRIMINAL WIRETAPS, AND SECTION 213 OF THE ACT THAT
ADDRESSES DELAYED NOTICE
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
MAY 3, 2005
__________
Serial No. 109-20
__________
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
------
Subcommittee on Crime, Terrorism, and Homeland Security
HOWARD COBLE, North Carolina, Chairman
DANIEL E. LUNGREN, California ROBERT C. SCOTT, Virginia
MARK GREEN, Wisconsin SHEILA JACKSON LEE, Texas
TOM FEENEY, Florida MAXINE WATERS, California
STEVE CHABOT, Ohio MARTIN T. MEEHAN, Massachusetts
RIC KELLER, Florida WILLIAM D. DELAHUNT, Massachusetts
JEFF FLAKE, Arizona ANTHONY D. WEINER, New York
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
LOUIE GOHMERT, Texas
Jay Apperson, Chief Counsel
Elizabeth Sokul, Special Counsel on Intelligence
and Homeland Security
Jason Cervenak, Full Committee Counsel
Michael Volkov, Deputy Chief Counsel
Bobby Vassar, Minority Counsel
C O N T E N T S
----------
MAY 3, 2005
OPENING STATEMENT
Page
The Honorable Howard Coble, a Representative in Congress from the
State of North Carolina, and Chairman, Subcommittee on Crime,
Terrorism, and Homeland Security............................... 1
The Honorable Robert C. Scott, a Representative in Congress from
the State of Virginia, and Ranking Member, Subcommittee on
Crime, Terrorism, and Homeland Security........................ 2
WITNESSES
The Honorable Michael J. Sullivan, United States Attorney,
District of Massachusetts
Oral Testimony................................................. 6
Prepared Statement............................................. 8
Mr. Chuck Rosenberg, Chief of Staff to Deputy Attorney General,
U.S. Department of Justice
Oral Testimony................................................. 14
Prepared Statement............................................. 16
Ms. Heather Mac Donald, John M. Olin Fellow, The Manhattan
Institute for Policy Research
Oral Testimony................................................. 20
Prepared Statement............................................. 21
The Honorable Bob Barr, former Member of Congress, Atlanta,
Georgia
Oral Testimony................................................. 24
Prepared Statement............................................. 25
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Robert C. Scott, a
Representative in Congress from the State of Virginia, and
Ranking Member, Subcommittee on Crime, Terrorism, and Homeland
Security....................................................... 47
Letter from the Honorable William E. Moschella, Assistant
Attorney General, U.S. Department of Justice to the Honorable
Arlen Specter.................................................. 52
Report from the Office of the Inspector General entitled ``Report
to Congress on Implementation of Section 1001 of the USA
PATRIOT Act,'' March 11, 2005.................................. 59
Report from the U.S. Department of Justice entitled ``Delayed
Notice Search Warrants: A Vital and Time-Honored Tool for
Fighting Crime,'' September 2004............................... 79
Letter from the Honorable William E. Moschella, Assistant
Attorney General, U.S. Department of Justice to the Honorable
Howard Coble................................................... 88
Article submitted by Heather Mac Donald, John M. Olin Fellow, The
Manhattan Institute for Policy Research, entitled ``Straight
Talk on Homeland Security,'' City Journal (Summer 2003)........ 95
IMPLEMENTATION OF THE USA PATRIOT ACT: SECTIONS 201, 202, 223 OF THE
ACT THAT ADDRESS CRIMINAL WIRETAPS, AND SECTION 213 OF THE ACT THAT
ADDRESSES DELAYED NOTICE
----------
TUESDAY, MAY 3, 2005
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10 a.m., in
Room 2141, Rayburn House Office Building, the Honorable Howard
Coble (Chair of the Subcommittee) presiding.
Mr. Coble. Good morning, ladies and gentlemen. At the
outset I will apologize. I just told Mr. Scott and Mr. Beckert
I have fallen victim to the April-May pollen attack. So pardon
my raspy, gravelly voice, but we'll try to get through it
Today the Subcommittee on Crime, Terrorism, and Homeland
Security will hold a hearing on criminal authorities for
surveillance and search warrants. We are examining three
sections of the PATRIOT Act that are sunsetting, and one
section that is not, but has become controversial. Sections 201
and 202 of the PATRIOT Act create new wiretap predicates.
Wiretap predicates are serious crimes enumerated in the Federal
Criminal Code, but fall under one of the limited circumstances
for which Congress authorized the use of a wiretap or electric
surveillance.
Sections 201 and 202 in no way change the strict
limitations on when wiretaps may be used, as Congress dictated
in title III of the Omnibus Crime Control and Safe Streets Act
of 1968. That Act outlines what is and what is not permissible
with regard to wiretapping and electronic eavesdropping.
Title III restrictions go beyond fourth amendment
constitutional protections and include a statutory suppression
rule to exclude evidence that was collected in violation of
title III. Section 223 of the PATRIOT Act added additional
safeguards against abuse by amending the Federal Criminal Code
to provide for administrative discipline of Federal officers or
employees, as well as for similar actions to be brought against
the United States for damages by a person aggrieved by such
illegal disclosures.
Section 213 provides courts the discretion to delay
notifying a suspect whose property is the target of a search.
Some have deemed this section controversial, but I believe that
any controversy has been caused by inaccurate information. I
realize that my view may not be shared by my good friend Mr.
Barr, and perhaps others, but nonetheless, I'm concerned with
the level of rhetoric that has been disseminated about this
section, which has been a long-standing, vital tool for law
enforcement.
Many in the public sector may be shocked to know that
section 213 does not create a new title search warrant; rather,
it merely standardized the special circumstances upon which a
court may authorize delayed notice to a target of a search.
Because of alarmist rhetoric in many cases by some, the public
also may not be aware that courts have been authorizing delayed
notice for search warrants for several decades. In fact, this
section does not affect the standard that requires a judge to
find probable cause of criminal activity prior to issuing a
search warrant.
I would also like to note that the Administrative Office of
the U.S. Courts found that in a 12-month period that ended in
September of 2003, the Court, the Federal courts, handled
32,529 search warrants. While I don't have numbers for the same
period for the number of times courts authorized delayed notice
for those search warrants, I do have numbers for a similar
duration of 14 months, between April of 2003 and July 2004.
Over that period the number of times courts authorized delayed
notice was 61. So 61 search warrants with delayed notice out of
32,000 plus comes to about, I think, .2 percent. These numbers
are discussed in a Department of Justice April 4, 2005 letter,
which, without objection, I would like to introduce into the
record.
Throughout these hearings many have argued that the sunset
provision of the act has required the Department to be on its
best behavior for implementing the PATRIOT Act. I would like to
point out that this section, sunset, has been used very rarely,
and the inspector general for the Department of Justice has not
found any abuse of this section or any other sections of the
PATRIOT Act in the six reports it has sent to the Congress. So
even without a sunset allegedly forcing the Department to
behave, section 213 has not been abused. The Government and
Federal judges in whom the authority rests under the statute
appear to have judiciously used this provision.
Having said this, I look forward to hearing testimony from
our panel, and I am now pleased to recognize the distinguished
gentleman from Virginia, the Ranking Member, Mr. Bobby Scott.
Mr. Scott. Thank you, Mr. Chairman. And thank you for
holding the hearing on these important sections.
We're considering section 213 of the USA PATRIOT Act, the
infamous delayed notice or ``sneak and peek'' authority
extended under the act. This lets police secretly go into
someone's home or place of business to look around for evidence
and not necessarily seize anything. In addition to the
observations, pictures or other recordings such as CDs or
floppy disks can be taken, and they can record things off of
your computer. Under ordinary circumstances, notice of the
search would be given through the officers showing up at your
door to conduct the search. With sneak and peek, notice is not
given until sometime after the search, such as when an arrest
or physical seizure of property has taken place. Even before
section 213, courts allowed sneak and peek searches, with
probable cause and reasonable circumstances justifying the
delayed notice.
The U.S. Supreme Court has not ruled on the sufficiency of
sneak and peak warrants under the fourth amendment, but there
have been several circuit court decisions, the second, fourth
and ninth circuits, for example, and while these courts have
not set a specific standard for such searches and notices, they
have ruled that search and notice must be reasonable and should
not exceed 7 days without additional reasonable foundation
separate and apart from the original delay. Although this
provision is not one of the sunsetted provisions under this
PATRIOT Act, it is the provision of the act which has received
the most congressional attention since its enactment.
Sneak and peak was not in the bill approved unanimously by
this Committee in the weeks following 9/11, and during the last
Congress the House actually passed by a wide margin an
amendment to the Department of Justice appropriations denying
the use of funds to implement any sneak and peek warrants. It
did not pass the Senate, so it did not become law, but it did
show by a wide margin that that amendment did pass the House.
Sneak and peek warrants are anathema to our traditions of
privacy and notice under the fourth amendment.
Now, one of the problems with section 213 is that it does
not set a time limit on how long the notice can be delayed.
Another problem is this catch-all provision that allows the
court to approve a sneak and peak warrant without there being
really dire or exigent circumstances.
Under the court-approved sneak and peak warrants under
section 213--under sneak and peak warrants before section 213,
the warrants were approved only where it was deemed necessary
to prevent such things as endangering life or physical safety,
flight from prosecution, or destruction of evidence. Under
section 213, an addition to these circumstances, a sneak and
peak warrant can be issued to prevent a case from being, quote,
otherwise seriously jeopardized or a trial from being unduly
delayed.
Within the 155 sneak and peak warrants the Department of
Justice concedes to have issued under section 213, recent
information reveals that 92 of them have been under this catch-
all provision. Of course, when the Department talks about
section 213, as with all PATRIOT Act provisions, it talks about
how important it is to protect us from terrorism. Yet it is
clear that these extraordinary powers, such as sneak and peek,
are used for more than just terrorism cases, and just how much
more is one of the issues we need to explore. With this broad
use, including the garden variety crimes, makes it even more
imperative that we keep a close watch on these provisions.
So, Mr. Chairman, this is another situation where if we
don't eliminate the extraordinary power for Government to pry
into our private lives and affairs, we certainly ought to make
sure that we structure that authority to ensure it is not the
subject of abuse, or that the safeguards don't degrade over
time. So I look forward to the testimony of our witnesses to
see how we might accomplish that.
Mr. Coble. I thank the gentleman from Virginia.
Lady and gentlemen, it is the practice of the Subcommittee
to swear in all witnesses appearing before it, so if you all
would please stand and raise your right hands.
[Witnesses sworn.]
Mr. Coble. Let the record show that each of the witnesses
answered in the affirmative.
We are blessed today, ladies and gentlemen, with a very
fine panel. Our first witness is Mr. Michael J. Sullivan,
United States Attorney for the District of Massachusetts. Mr.
Sullivan has been active in instituting task forces that enable
the Federal Government, along with State and local governments,
to combat potential terrorist attacks.
Prior to serving as U.S. Attorney, Mr. Sullivan was a
District Attorney of Plymouth County, and was a member of the
Massachusetts House of Representatives. He is a graduate of
Boston College and the Suffolk University School of Law.
Our second witness is Mr. Chuck Rosenberg, Chief of Staff
to Deputy Attorney General James B. Comey. Mr. Rosenberg
previously served as counsel to Attorney General John Ashcroft,
and prior to that as counsel to FBI Director Mueller. Prior to
joining the FBI, Mr. Rosenberg was an Assistant District
Attorney. He is an alumnus of the Tufts University, Harvard
University and the University of Virginia School of Law.
Our next witness is Ms. Heather Mac Donald, a John M. Olin
Fellow at the Manhattan Institute and a contributing editor to
City Journal. Prior to joining the Manhattan Institute, Ms. Mac
Donald clerked for the Honorable Stephen Reinhardt, U.S. Court
of Appeals for the Ninth Circuit, served as an attorney-advisor
in the Office of the General Counsel of the U.S. Environmental
Protection Agency, and served as a volunteer with the Natural
Resource Defense Fund in New York City.
Ms. Mac Donald received her B.A. in English from Yale
University, graduated summa cum laude with a Mellon fellowship
to Cambridge University, where she earned an M.A. in English,
and studied in Italy through a college study grant. She also is
a graduate of Stanford University School of Law.
Our final witness is Mr. Bob Barr, the Honorable Bob Barr,
represented the Seventh District of Georgia at the U.S. House
of Representatives, and is an alum of this Committee. Good to
have you back on the Hill, Bob.
Mr. Barr. Thank you, Mr. Chairman.
Mr. Coble. He is the 21st Century Liberties Chair for
Freedom and Privacy at the American Conservative Union, and
provides advice to several organizations, including the ACLU.
Mr. Barr served as the United States Attorney for the
Northern District of Georgia from 1986 to 1990, and he was also
an official with the CIA and practiced law for many years. Now
I don't have this in my statement, Mr. Barr, but if my memory
serves correctly, you did your undergraduate work at USC, and
was awarded a law degree from Georgetown.
Mr. Barr. The real USC.
Mr. Coble. I was going to say in my district USC would be
the University of South Carolina, but in your case it is,
indeed, Southern California.
Now I have not talked to Mr. Delahunt. Mr. Delahunt, would
you like to introduce Mr. Sullivan furthermore?
Mr. Delahunt. Of course. I had the pleasure to serve with
Mr. Sullivan for--I think our terms overlapped as district
attorneys in Massachusetts for maybe a year or two, and he was
coming along just fine, Mr. Coble. And then, of course, he won
the approval of the President and has served well in the U.S.
Attorney's Office. And I want to welcome you, Mike, to this
hearing.
And I also have to acknowledge our former colleague and
friend Bob Barr, who we served together for--how many years was
it, Bob?
Mr. Barr. It seems like about 40 or 50, but a little bit
less than that.
Mr. Delahunt. That's my memory, too. While we had some
disagreements in terms of a number of issues, we also shared,
you know, a consensus on some significant issues, particularly
in the course of the Committee's proceedings dealing with the
PATRIOT Act. And I think it really reflected well on the full
Committee that at least the first version of the PATRIOT Act--
and Bob Barr had much to do with that final result in a piece
of legislation I think we all took great pride in. And I
remember, of course, serving with Bob Barr during the
impeachment proceedings; again, we had disagreements, but he is
a man of keen intellect, and I consider Bob a friend.
Mr. Coble. Thank you, Mr. Delahunt.
Mr. Delahunt knows this, and this has absolutely nothing to
do with the PATRIOT Act, but I am a long-time Celtic and
Patriot fan, however, I did not cheer for the Patriots when
they beat the Carolina Panthers in the Super Bowl several years
ago.
Mr. Scott. Mr. Chairman, I would like to say a word about
our former colleague, too, because when we went through the
PATRIOT Act originally, we had some late nights--many of us
worked late nights to try to get that into a form that we could
come to some agreement on, and Mr. Barr was one of those that
spent as many late nights and long meetings as anybody else.
And as the gentleman from Massachusetts has indicated, we put
together a package that passed this Committee unanimously, and
the gentleman from Massachusetts has also put that in historic
context. That was just a few months after the impeachment
process where this Committee in some view did not distinguish
itself in terms of partisan cooperation, but coming up with a
version of the USA PATRIOT Act that passed this Committee
unanimously, I think, was quite a feat. Unfortunately,
somewhere been the Committee and the floor our good work got
lost, but Mr. Barr was one of those that worked long and hard
to try to come together.
Mr. Coble. I want the record to show that I earlier told
Mr. Barr that we miss him on the Hill--I don't want to be the
only guy here not praising Mr. Barr.
Folks, it's good to have you all with us. We also have been
joined by the distinguished gentleman from Ohio Mr. Chabot.
Good to have you here with us today.
Mr. Chabot. Thank you, Mr. Chairman.
Mr. Coble. Folks, we try on this Subcommittee to operate
under the 5-minute rule, as you all have been previously
notified. The panels that appear before you all, when the amber
light appears, the ice on which you are skating is becoming
thin, you have a minute to go; and then when the red light
appears, your time has expired. So if you could stay within the
5-minute time frame, we would be appreciative.
Mr. Sullivan, why don't you kick it off.
TESTIMONY OF THE HONORABLE MICHAEL J. SULLIVAN, UNITED STATES
ATTORNEY, DISTRICT OF MASSACHUSETTS
Mr. Sullivan. Thank you very much, Mr. Chairman. And thank
you for your support of both the New England Patriots and the
Boston Celtics. I want the record to reflect I'm also a fan of
the Patriots and the Celtics and the Boston Red Sox, and
certainly the Boston Bruins.
Mr. Chairman, Ranking Member Scott, Members of the
Subcommittee, my good friend Mr. Delahunt, I want to thank you
for the invitation to appear before you today to discuss
several important provisions of the USA PATRIOT Act. I want to
address sections 201 and 202 of the act which provide law
enforcement with the ability to use preexisting wiretap
authorities to investigate certain crimes that terrorists are
likely to commit, such as those involving weapons of mass
destruction, material support to terrorists and foreign
terrorist organizations, and important cybercrime and
cyberterrorism offenses. I will also address section 223.
All three of these sections are currently scheduled to
sunset at the end of 2005. If section 201 and 202 are allowed
to sunset, we will lose valuable tools that allow law
enforcement to investigate a full range of terrorism-related
crimes. Paradoxically, these tools would be unavailable in
criminal investigations and offenses involving chemical
weapons, cyberterrorism, and weapons of mass destruction, but
would be available to investigate traditional crimes such as
drug offenses, mail fraud and passport fraud. This would be a
senseless approach because it's absolutely vital that the
Justice Department have all the appropriate tools at its
disposal to investigate terrorism crimes.
I'm here to ask you to make permanent sections 201 and 202,
and also 223 of the USA PATRIOT Act.
In the criminal law enforcement context, Federal
investigators have long been able to obtain court orders to
intercept wire communications and oral communications to
investigate numerous criminal offenses listed in the Federal
wiretap statute. The list of offenses include traditional
crimes including drug crimes, mail fraud and passport fraud.
Prior to the enactment of the USA PATRIOT Act, however, certain
extremely serious crimes that terrorists are likely to commit
were not among them. This prevented law enforcement authorities
from using many forms of electronic surveillance to investigate
these criminal offenses. As a result, law enforcement could
obtain, under appropriate circumstances, a court order to
intercept foreign communications in a passport fraud
investigation, but not a criminal investigation of terrorists
using chemical weapons or murdering a United States national
abroad.
Section 201 of the USA PATRIOT Act ended this anomaly in
the law by amending the criminal wiretap statute when Congress
added the following terrorism-related crimes to the list of
wiretap predicates: chemical weapons offenses, murders and
other acts of violence against United States nationals
occurring outside of the United States, the use of weapons of
mass destruction, violent acts of terrorism transcending
national borders, financing transactions with countries that
support terrorism, and material support for terrorists and
terrorist organizations. There are also two other offenses that
Congress subsequently added to the list.
Section 201 of the USA PATRIOT Act preserved all of the
preexisting standards in the wiretap statute.
Just as many traditional terrorism-related offenses were
not listed as wiretap predicates before the passage of the USA
PATRIOT Act, neither were many important cybercrime or
cyberterrorism offenses, offenses concerning which law
enforcement must remain vigilant and prepared in the 21st
century. Section 202 of the USA PATRIOT Act eliminated this
anomaly by allowing law enforcement to use preexisting wiretap
authorities to investigate felony offenses under the Computer
Fraud and Abuse Act, and brought the criminal code up to date
with modern technology.
As with section 201, section 202 of the USA PATRIOT Act
preserved all the preexisting standards in the wiretap statute.
If section 202 were allowed to expire, then investigators will
not be able to obtain wiretap orders to investigate many
important cybercrime and cyberterrorism offenses, resulting in
a criminal code that is dangerously out of date compared to
modern technology.
As for section 223, a person now harmed by willful
violation of the criminal wiretap statute or improper use and
disclosure of information contained in the Foreign Intelligence
Surveillance Act may now file a claim against the United States
for at least $10,000 in damages, plus costs. Most everyone who
has reviewed this section agrees it is a valuable tool and
should be renewed.
I want to thank you again for the opportunity to discuss
section 201, 202 and 223 of the USA PATRIOT Act. These
provisions are critical to the Department's efforts to protect
Americans from terrorism. From my experience as a prosecutor, I
know firsthand how valuable wiretaps are to investigations and
prosecution of serious criminal offenses. There is no logical
reason why these valuable tools should not be extended to law
enforcement to protect our citizens from terrorism-related
offenses as well.
I would be happy to answer any questions you may have.
Mr. Coble. Thank you, Mr. Sullivan.
[The prepared statement of Mr. Sullivan follows:]
Prepared Statement of Michael Sullivan
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Mr. Coble. And Mr. Rosenberg.
TESTIMONY OF CHUCK ROSENBERG, CHIEF OF STAFF TO DEPUTY ATTORNEY
GENERAL, U.S. DEPARTMENT OF JUSTICE
Mr. Rosenberg. Thank you, Chairman Coble, Ranking Member
Scott, Members of the Subcommittee, Mr. Delahunt and Mr.
Chabot. It's a pleasure to be here today, and I appreciate the
opportunity to speak to the Subcommittee about what I believe
to be a very ordinary tool that has been gravely misunderstood
and misperceived. I speak of section 213 of the PATRIOT Act,
which codified and gave us a single uniform national standard
for the execution of delayed notification searches.
Delayed notification searches are nothing new. I said
they're rather ordinary; I should also say they're rather old,
we've had them for decades. The authority to execute delayed
notification searches dates back many, many years. Implicitly,
a Supreme Court case in 1967, Katz v. United States, and more
concretely, to a 1979 Supreme Court case which recognized that
the fourth amendment does not require in all instances
immediate notification of a search.
In the wake of that 1979 Supreme Court case, circuit courts
throughout the country, in the second, in the fourth and the
ninth circuit, had slightly varying standards on how you would
obtain a delayed notification search, what was required, and
how long the period of delay would be. And what this Congress
gave us in section 213 again was a single standard, so there
was uniformity through the country.
Let me clear up one large misperception. Under the fourth
amendment, to execute a search warrant a Federal prosecutor, an
agent, had to demonstrate to the satisfaction of a Federal
judge probable cause; in other words, probable cause that the
search would yield fruits of a crime, evidence of a crime. That
was true before the PATRIOT Act, it is true now; nothing about
the PATRIOT Act or section 213 changed that at all.
As well, prior to the PATRIOT Act, a Federal judge had to
authorize a search warrant; whether it was with delayed notice
or without, regardless, a Federal judge had to authorize it.
That was true before the PATRIOT Act, that's true now. Nothing
about that has changed.
To delay notice, however, you require something more,
probable cause for the search, but for the delay you need to
show reasonable cause that if you don't delay notification,
that some adverse result would flow from that. There are five
in the statute: that a life would be endangered, that there
would be flight from prosecution, that evidence might be
destroyed or tampered with, that potential witnesses could be
intimidated, or that an investigation could be seriously
jeopardized.
In all cases we need to demonstrate that to a Federal
judge, and she needs to be satisfied that we have reasonable
cause to delay the search. So without that, we can't delay. And
that's what I want to be very clear about, Mr. Chairman, we
must have permission of the court to act not just for the
underlying search, but for the delay as well.
In all cases, in all cases, we still give notice, we must.
It's required under the law. It's just a question of whether or
not we may be able to delay that notice for some reasonable
period of time.
We do not use this authority very often. Out of every 1,000
searches--and this is a rough average--we use it twice. That's
about .2 percent. We use it when we need it. And, I submit, we
use it judiciously and smartly and carefully, and, again, only
with the authorization of a court. Nothing in the PATRIOT Act,
nothing in section 213 removes the probable cause requirement.
Nothing in the PATRIOT Act removes the requirement that a judge
give us permission to delay notice.
I have a little bit of time left, but I don't want to use
it all now. I will pass it along. I appreciate the opportunity
to speak. I am happy to answer any questions you may have.
[The prepared statement of Mr. Rosenberg follows:]
Prepared Statement of Chuck Rosenberg
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Mr. Coble. Well, you and Mr. Sullivan have put Ms. Mac
Donald and Mr. Barr under a bright light because you both beat
the red light.
Ms. Mac Donald, you're on.
TESTIMONY OF HEATHER MAC DONALD, JOHN M. OLIN FELLOW, THE
MANHATTAN INSTITUTE FOR POLICY RESEARCH
Ms. Mac Donald. I'm going to be lean and mean, Mr.
Chairman.
Thank you very much for inviting me today, I am honored to
be testifying before you.
The PATRIOT Act has been subject to the most successful
misinformation campaign in recent memory. From the day of its
passage, it's been portrayed as a power grab by an
Administration intent on trampling on civil rights. As I have
debated the act across the country, I've been amazed by the
amount of ignorance out there about it, and therefore I applaud
the Committee for taking the time to set the record straight.
Now, I have observed four rhetorical strategies used to
discredit the act, and I want to discuss them in the context of
section 213, the delayed notification provision, because if you
can discredit them in those--in that context, you have the key
for undermining the entire anti-PATRIOT propaganda campaign.
The first strategy used by opponents of the act is to
conceal legal precedent. Section 213, as we heard, allows the
Government to delay notice of the search if notice would result
in witness intimidation, evidence tampering or other adverse
results. The section has been universally portrayed as a
radical new power that will unleash Government tyranny. The
gall of this claim astounds me, because, as Mr. Rosenberg
explained, section 213 merely codifies two decades of judicial
precedent. If delayed notice were the threat that it were made
out to be, we would have heard about abuses by now. But as with
every other section of the PATRIOT Act, the critics have been
unable to bring forth a single example of abuse over not just 4
years of use, but two decades of delayed notice authority.
The second strategy used by PATRIOT Act opponents is what I
call ``hiding the judge.'' We never learn from the section 213
opponents that under it the Government can investigate a
suspect and delay notice only if a judge gives permission. It's
a Federal judge who decides whether delay is reasonable, not a
law enforcement agent.
The third strategy against the PATRIOT Act, amending the
statute. PATRIOT Act critics invariably imply under section 213
the Government can permanently conceal that a search has
occurred. This charge rewrites the section which says that
delay can only be temporary for a reasonable period of time.
Ultimately I've discovered what drives most critics of the
act is a deep suspicion of Government secrecy in criminal or
terror investigations. This is the fourth strategy, rejecting
secrecy. Opponents of section 213 apparently believe that if
the Government wants to search Muhammad Atta's hard drive, it
should show up at his door and hand him a search warrant and
say, ``Oh, Mr. Atta, we would like permission, please, to
search your computer.'' This line of attack shows a complete
obliviousness to the distinction between an after-the-fact
criminal investigation and preemptive antiterror
investigations.
In passing the PATRIOT Act, Congress recognized the urgency
of moving law enforcement from a reactive to a preventative
mode. Speed and secrecy are the essence of preventing terrorist
attacks, and, indeed, in many criminal investigations as well.
There is one final fallacy that I want to quickly allude to
which is being suspended in time. For critics of the PATRIOT
Act, it is always 1968 when J. Edgar Hoover was indeed
trampling on civil rights; but this line of reasoning ignores
the massive sea change in law enforcement that has occurred
since then. The FBI has internalized the rule of law and the
norms of restraint. The biggest challenge we had before 9/11
was persuading our agents to use this power that was available
to them.
In conclusion, section 213, like the rest of the PATRIOT
Act, was a reasonable response to the new threat of
catastrophic terrorism. It has not led to a single abuse of
civil rights, and it should be renewed. Thank you.
Mr. Coble. Thank you, Ms. Mac Donald.
[The prepared statement of Ms. Mac Donald follows:]
Prepared Statement of Heather Mac Donald
Thank you, Mr. Chairman and members of the Committee. My name is
Heather Mac Donald. I am a senior fellow at the Manhattan Institute for
Policy Research, a think tank in New York City. I have written
extensively on homeland security for the Washington Post, the Wall
Street Journal, the Los Angeles Times, and City Journal, among other
publications. I appreciate the opportunity to testify today on this
important topic.
The most powerful weapon against terrorism is intelligence. The
United States is too big a country to rely on physical barriers against
attack; the most certain defense is advanced knowledge of terrorist
plans.
In recognition of this fact, Congress amended existing surveillance
powers after 9/11 to ready them for the terrorist challenge. The signal
achievement of these amendments, known as the Patriot Act, was to tear
down the regulatory ``wall'' that had prevented anti-terrorism
intelligence agents and anti-terrorism criminal agents from sharing
information. The Patriot Act made other necessary changes to
surveillance law as well: it extended to terrorism investigators powers
long enjoyed by criminal investigators, and it brought surveillance law
into the 21st century of cell phones and e-mail. Where the act modestly
expands the government's authority, it does so for one reason only: to
make sure that the government can gather enough information to prevent
terrorism, not just prosecute it after the fact.
Each modest expansion of government power in the Patriot Act is
accompanied by the most effective restraint in our constitutional
system: judicial review. The act carefully preserves the traditional
checks and balances that safeguard civil liberties; four years after
its enactment, after constant monitoring by the Justice Department's
Inspector General and a host of hostile advocacy groups, not a single
abuse of government power has been found or even alleged.
This record of restraint is not the picture of the act most often
presented in the media or by government critics, however. The Patriot
Act has been the target of the most successful disinformation campaign
in recent memory. From the day of its passage, law enforcement critics
have portrayed it as an unprecedented power grab by an administration
intent on trampling civil rights.
As lie after lie accumulated, the administration failed utterly to
respond. As a result, the public is wholly ignorant about what the law
actually does. Hundreds of city councils have passed resolutions
against the act; it is a safe bet that none of them know what is in it.
The Committee is to be congratulated for taking the time to get the
truth out.
Though the charges against the Patriot Act have been dazzling in
their number, they boil down to four main strategies. This morning, I
would like to dissect those strategies, with particular reference to
the most controversial section of the act: section 213. Section 213
allows the government to delay notice of a search, something criminal
investigators have been allowed to do for decades. Discredit the anti-
Patriot Act strategies against section 213, and you have the key for
discrediting them in every other context.
--STRATEGY #1: CONCEAL LEGAL PRECEDENT.
Here's how section 213 works: Let's say the FBI wants to plumb
Mohammad Atta's hard drive for evidence of a nascent terror attack. If
a federal agent shows up at his door and says: ``Mr. Atta, we have a
search warrant for your hard drive, which we suspect contains
information about the structure and purpose of your cell,'' Atta will
tell his cronies back in Hamburg and Afghanistan: ``They're on to us;
destroy your files--and the infidel who sold us out.'' The government's
ability to plot out that branch of Al Qaeda is finished.
To avoid torpedoing preemptive investigations, Section 213 lets the
government ask a judge for permission to delay notice of a search. The
judge can grant the request only if he finds ``reasonable cause'' to
believe that notice would result in death or physical harm to an
individual, flight from prosecution, evidence tampering, witness
intimidation, or other serious jeopardy to an investigation. In the
case of Mohammad Atta's hard drive, the judge will likely allow a
delay, since notice could seriously jeopardize the investigation, and
would likely result in evidence tampering or witness intimidation.
The government can delay notifying the subject only for a
``reasonable'' period of time; eventually officials must tell Atta that
they inspected his hard drive.
Section 213 carefully balances traditional expectations of notice
and the imperatives of preemptive terror and crime investigations.
That's not how left- and right-wing libertarians have portrayed it,
however. They present Section 213, which they have dubbed ``sneak-and-
peek,'' as one of the most outrageous new powers seized by former
Attorney General John Ashcroft. The ACLU's fund-raising pitches warn:
``Now, the government can secretly enter your home while you're away .
. . rifle through your personal belongings . . . download your computer
files . . . and seize any items at will. . . . And, because of the
Patriot Act, you may never know what the government has done.''
Notice the ACLU's ``Now.'' Like every anti-213 crusader, the ACLU
implies that section 213 is a radical new power. This charge is a rank
fabrication. For decades, federal courts have allowed investigators to
delay notice of a search in drug cases, organized crime, and child
pornography, for the same reasons as in section 213. Indeed, the
ability to delay notice of a search is an almost inevitable concomitant
of investigations that seek to stop a crime before it happens. But the
lack of precise uniformity in the court rulings on delayed notice
slowed down complex national terror cases. Section 213 codified
existing case law under a single national standard to streamline
detective work; it did not create new authority regarding searches.
Those critics who believe that the target of a search should always be
notified prior to the search, regardless of the risks, should have
raised their complaints decades ago--to the Supreme Court and the many
other courts who have recognized the necessity of a delay option.
Critics of Section 213 raise the spectre of widespread surveillance
abuse should the government be allowed to delay notice. FBI agents will
be rummaging around the effects of law-abiding citizens on mere whim,
even stealing from them, allege the anti-Patriot propagandists. But the
government has had the delayed notice power for decades, and the anti-
Patriot demagogues have not brought forward a single case of abuse
under delayed notice case law. Their argument against Section 213
remains purely speculative: It could be abused. But there's no need to
speculate; the historical record refutes the claim.
--STRATEGY #2: HIDE THE JUDGE.
The most pervasive tactic used against the Patriot Act is to
conceal its judicial review provisions.
The cascades of anti-section 213 vitriol contain not one mention of
the fact that the FBI can only delay notice of a search pursuant to
judicial approval. It is a federal judge who decides whether a delay is
reasonable, not law enforcement officials. And before a government
agent can even seek to delay notice of a search, he must already have
proven to a judge that he has probable cause to conduct the search in
the first place.
But the opponents suggest that under section 213, the government
can unilaterally and for the most nefarious of purposes decide to
conceal its investigative activities. Indeed, the ACLU implies that
federal investigators can not only unilaterally delay notice, but can
choose what and whether to search, without any judicial oversight:
``Now, the government can . . . seize any items [from your home] at
will,'' it blares. But section 213 allows a warrant to issue only if a
judge finds a ``reasonable necessity'' for it--the executive's
arbitrary ``will'' has nothing to do with it. This is hardly a recipe
for lawless executive behavior--unless the anti-Patriot forces are also
alleging that the federal judiciary is determined to violate citizens
rights. If that's what they mean, they should come out and say it.
--STRATEGY #3: AMEND THE STATUTE.
Anti-Patriot lore has it that section 213 allows the government to
permanently conceal a search. The section ``allows the government to
conduct secret searches without notification,'' cries Richard Leone,
president of the Century Foundation and editor of The War on Our
Freedoms: Civil Liberties in an Age of Terrorism. This conceit rewrites
the section, which provides only for a delay of notice, not its
cancellation. A warrant issued under section 213 must explicitly
require notice after a ``reasonable'' period of time. This key feature
of the section is completely suppressed by the critics.
--STRATEGY #4: REJECT SECRECY.
Many of the attacks on the Patriot Act emanate from a single
source: the critics do not believe that the government should ever act
in secret. Recipients of document production orders in terror
investigations--whether Section 215 orders or national security letters
under the 1986 Electronic Communications Privacy Act--should be able to
publicize the government's request, say the critics. If intelligence
agents want to search a suspected cell's apartment, they should inform
the cell members in advance to give them an opportunity to challenge
the search. Time and again, law enforcement critics disparage the
Foreign Intelligence Surveillance Court, because its proceedings are
closed to the public.
This transparent approach may satisfy those on the left and right
who believe that the American people have no greater enemy than their
own government, but it fails to answer the major question: how would it
possibly be effective in protecting the country? The Patriot Act
critics fail to grasp the distinction between the prosecution of an
already committed crime, for which probable cause and publicity
requirements were crafted, and the effort to preempt a catastrophic
attack on American soil before it happens. For preemptive
investigations, secrecy is of the essence. Opponents of the Patriot Act
have never explained how they think the government can track down the
web of Islamist activity in public. Given the fact that section 213 and
other sections are carefully circumscribed with judicial checks and
balances, it is in fact the secrecy that they allow that most riles the
opponents.
The recent history of government intelligence-gathering belies the
notion that any government surveillance power sets us on a slippery
slope to tyranny. There is a slippery-slope problem in terror
investigations--but it runs the other way. Since the 1970s,
libertarians of all political stripes have piled restriction after
restriction on intelligence-gathering, even preventing two anti-terror
FBI agents in the same office from collaborating on a case if one was
an ``intelligence'' investigator and the other a ``criminal''
investigator. By the late '90s, the bureau worried more about avoiding
a pseudo-civil liberties scandal than about preventing a terror attack.
No one demanding the ever-more Byzantine protections against
hypothetical abuse asked whether they were exacting a cost in public
safety. We know now that they were.
The libertarian certainty about looming government abuse is a
healthy instinct; it animates the Constitution. But critics of the
Patriot Act and other anti-terror authorities ignore the sea change in
law enforcement culture over the last several decades. For privacy
fanatics, it's always 1968, when J. Edgar Hoover's FBI was voraciously
surveilling political activists with no check on its power. That FBI is
dead and gone. In its place arose a risk-averse and overwhelmingly law-
abiding Bureau, that has internalized the norms of restraint and
respect for privacy.
This respect for the law now characterizes intelligence agencies
across the board. Lieutenant General Michael V. Hayden, the nominee for
Principal Deputy Director of National Intelligence, told the Senate
Select Committee on April 14 that the challenge for supervisors in the
National Security Agency was persuading analysts to use all of their
legal powers, not to pull analysts back from an abuse of those powers.
It is because of this sea-change in law enforcement culture that
Patriot Act critics cannot point to a single abuse of the act over the
last four years, and why they are always left to argue in the
hypothetical.
In conclusion, the Patriot Act is a balanced updating of
surveillance authority in light of the new reality of catastrophic
terrorism. It corrects anachronisms in law enforcement powers, whereby
health care fraud investigators, for example, enjoyed greater ability
to gather evidence than Al Qaeda intelligence squads. It created no
novel powers, but built on existing authorities within the context of
constitutional checks and balances. It protects civil liberties while
making sure that intelligence analysts can get the information they
need to protect the country. The law should be reenacted.
Mr. Coble. Mr. Barr.
TESTIMONY OF THE HONORABLE BOB BARR, FORMER MEMBER OF CONGRESS,
ATLANTA, GEORGIA
Mr. Barr. Thank you very much, Mr. Chairman. And the fact
that you're here today, despite some medical problems, is a
very loud tribute to your concern for the Constitution and for
open and objective and extensive debate on important
constitutional issues such as those included in these sections
in the USA PATRIOT Act. And I personally very much appreciate
your being here and holding this hearing, as well as the other
Members of the Committee. And, I appreciate very much their
very kind words for my former service on this very Subcommittee
that I consider one of the high points in my public career. I
very much appreciate them being here today and conducting these
hearings.
I do have, Mr. Chairman, a fairly extensive set of written
remarks which I have sent to the Subcommittee, and ask that
they be included in the record of these proceedings.
Mr. Coble. Without objection.
Mr. Barr. What I'd like to do in the few minutes allowable
for opening statements, Mr. Chairman, is put this in historical
context, do away with some of the hyperbole and misplaced facts
of the prior witness, and let the Subcommittee know what it is
that I and a number of others from across the ideological
spectrum, who care just as much as all of the witnesses here
today and as Members of this Subcommittee about the
Constitution, exactly what it is that we're proposing and what
we're not proposing.
The issue, Mr. Chairman, of notice for searches goes back
long before the last couple of decades; it goes back even long
before our own Constitution, including its Bill of Rights, was
adopted. It goes back at least 300 years before our
Constitution. The notice that--or the principle that notice
should be given before the sovereign could invade a man's
castle, in the words of James Otis, was something very
sacrosanct, a notion that the privacy of that dwelling--and the
notion that before that the Government could invade that
dwelling, or later that business, and gather evidence against
that or another person without giving notice was very much
important and I think is engrained in the fourth amendment.
Indeed, no less a constitutional scholar than Justice
Clarence Thomas recognized recently that the notice provision
is indeed an important underpinning of the reasonableness basis
for the fourth amendment.
So the notion that we're talking about some radical concept
here that would harm our Nation when we're talking about the
norm being notice is not radical at all; it is very consistent
with a long history both of the philosophy underlying our Bill
of Rights as well as judicial interpretations thereof.
The courts, as has been correctly stated by prior
witnesses, have never held that noticeless searches are per se
okay. Quite the contrary. In the two instances in which courts
of appeal, the second and ninth circuit, have ruled on the
issue of noticeless searches, they simply address the issue of
the reasonableness of the delay in the notice. And indeed, the
Supreme Court has not ruled on this issue. In the Delia case,
1979, that was simply a case not involving a search for or a
seizure of evidence, but simply that in the case where the
Government wished to properly place a listening device, a bug,
in a location, it made no sense for the Government to announce
that it was doing that. That's very different from a search and
seizure of evidence.
What exactly is it that the USA PATRIOT Act did in its
section 213? For the very first time in our Nation's history,
it established a legal basis on which the Government could, in
defined circumstances, execute a warrantless search, a so-
called sneak and peek search. I, and most others who find some
fault with that provision, don't contest that basic premise.
Yes, there are instances in which the Government needs to
conduct a search without providing contemporaneous notice; but
we do believe that those circumstances ought to be very
carefully limited to ensure that they remain very much, both in
principle and in practice, not the norm, but the exception to
the general rule. And we also believe that there needs to be
defined limitations in terms of time for the execution of
noticeless searches and seizures of evidence.
Therefore, what we are proposing, because section 213 is
deficient in both of those two areas--it provides no definitive
endpoint for a warrant noticeless search, and it provides a
sort of general catch-all phrase that to deny the Government
the use of a noticeless search would unduly delay the trial--
that's not an appropriate constitutional basis on which to take
away that important right for notice, Mr. Chairman. Therefore,
what we are proposing is not the preposterous hypothetical that
the previous witness indicated of having to tell Muhammad Atta
that the Government is there to look at his hard drive. Nobody
reasonably is proposing that, and the organizations with which
I work are not. What we are simply doing, Mr. Chairman, is
taking the existing framework in section 213 and providing a
change in only two areas, one, a definitive endpoint for the
noticeless search, with extensions; and secondly--and this is
most important, I think, Mr. Chairman--I apologize for going on
just slightly longer than the time, but this is most
important--we clearly recognize that in those instances in
which to deny the Government the ability to conduct a
noticeless search would seriously harm the national security,
yes, the Government ought to be able to proceed. And the Safe
Act provision, which we commend to this Subcommittee and which
some Members, Mr. Conyers and Mr. Flake, I believe, are already
cosponsors, does that.
It does not take away, we are not proposing to take away,
the section 213 authority, we are simply proposing that there
be some definitive limitations, and that the general catch-all
phrase be limited so that it clearly allows, in national
security cases, but doesn't become simply a bureaucratic tool
for the Government to use.
Mr. Coble. I thank the gentleman.
[The prepared statement of Mr. Barr follows:]
Prepared Statement of the Honorable Bob Barr
Chairman Coble, Ranking Member Scott, Members of the Subcommittee,
thank you again for inviting me to testify on the PATRIOT Act. You
deserve applause for your oversight today.
The results of the debate over the extension of the PATRIOT Act's
more intrusive provisions will define this Congress in our Nation's
history. Will Congress correct some of the provisions that were hastily
passed just days after the tragic attacks of 9/11 and bring the statute
back in line with the command our nation's charter, our Constitution?
Will Congress adopt safeguards to properly focus our law enforcement
efforts on terrorists rather than ordinary Americans?
I am here today because I am confident that, working together, we
can do just that and honor both the letter and the spirit of our Fourth
Amendment freedoms by bringing the PATRIOT Act back in line with the
Constitution.
My name is Bob Barr. From 1995 to 2003, I had the honor to
represent Georgia's Seventh District in the United States House of
Representatives, serving that entire period with many of you on the
House Judiciary Committee.
From 1986 to 1990, I served as the United States Attorney for the
Northern District of Georgia after being nominated by President Ronald
Reagan, and was thereafter the president of the Southeastern Legal
Foundation. For much of the 1970s, I was an official with the CIA.
I currently serve as CEO and President of Liberty Strategies, LLC,
and Of Counsel with the Law Offices of Edwin Marger. I also hold the
21st Century Liberties Chair for Freedom and Privacy at the American
Conservative Union, consult on privacy issues with the American Civil
Liberties Union, and am a board member of the National Rifle
Association.
I am also the Chairman of a new network of primarily conservative
organizations called Patriots to Restore Checks and Balances, which
includes the American Conservative Union, Eagle Forum, Americans for
Tax Reform, the American Civil Liberties Union, Gun Owners of America,
the Second Amendment Foundation, the Libertarian Party, the Association
of American Physicians and Surgeons, and the Free Congress Foundation.
You have asked me to testify today about sections 201, 202, 223,
and 213 of the PATRIOT Act. I will focus the bulk of this testimony on
section 213, the ``sneak and peek'' provision, and reserve some brief
comments on the other provisions at the end of this written statement.
Section 213 of the PATRIOT Act authorizes ``sneak and peek,'' or
``delayed notice,'' search warrants in all criminal cases--without
limitation to cases involving terrorism or a foreign agents--where the
federal government says notice of the search warrant would result in
destruction of evidence, the endangerment of an individual's life or
physical safety, flight from prosecution, intimidation of a witness, or
serious jeopardy to a criminal investigation. The Act sets no limit on
the length of time such a search of a person's home or business can be
kept secret. Section 213 is not subject to sunset this year but should
be amended and should be given a new sunset as amended, if it is not
repealed.
I have grave concerns about covert searches of people's homes or
businesses in general and about the design of this statute in
particular. I would hope the Members of the Judiciary Committee would
agree with me on one fundamental premise of American law. The idea of
strangers, including government agents, secretly entering the privacy
of our homes and examining our personal possessions is a threat to the
fundamental freedoms our Fourth Amendment was written to protect.
Secret searches of American homes and businesses must not be
allowed to become routine. They must be closely circumscribed. Although
one might imagine a rare circumstance where a short delay in notice
might be compelling and even pass scrutiny under the Fourth Amendment,
secret searches should not be allowed to become a garden-variety tool
of law enforcement. The PATRIOT Act, however, permanently enshrined
secret searches of American homes and businesses in our law under the
guise of anti-terrorism efforts.
As members of the House Judiciary Committee, you know well that the
House Judiciary Committee's original marked-up version of the PATRIOT
Act did not include statutory authority for secret criminal searches,
although the Administration had asked for it. The ``sneak-and-peek''
provision was imposed on you by the Senate at the last minute in a
substitution of the bill this Committee produced. Respectfully, I
believe this addition to the bill was a serious mistake, but there was
no time then to correct it. There is time now.
Giving federal law enforcement statutory authority for secret
criminal search warrants in ordinary criminal cases has nothing to do
with ``Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism,'' as the PATRIOT Act was
pitched to the American people. We all know that. As the American
people have come to understand that, they too have expressed strong
reservations about the use of such extraordinarily intrusive and
secretive powers, especially where such searches are not used to
obstruct terrorist attacks.
If Congress chooses to continue to give statutory authority for
these covert-entry, delayed-notification searches, they should be
carefully limited to ensure that what should be the rarest of
exceptions does not become the rule. The PATRIOT Act, however, has
inadequate controls. And, even though the sneak and peek authority is
not set to sunset by the end of the year, I urge you to support the
addition of sound and modest checks on the use, and also against the
abuse, of this secret search authority.
Section 213 of the PATRIOT Act, as codified at 18 U.S.C. Sec. 3103a
(2004), contains at least two fundamental flaws. First, it fails to set
a statutory time limit on secret searches. The statute requires notice
of the execution of a sneak and peek warrant within a ``reasonable
period of its execution,'' but sets no time limit on when such notice
is required.\1\
---------------------------------------------------------------------------
\1\ 18 U.S.C. Sec. 3103a(b)(3).
---------------------------------------------------------------------------
From the outset, critics of the PATRIOT Act have warned that such
open-endedness would result in these warrants being used to justify the
indefinite delay of notice. Attorney General Gonzales recently
testified that at least six of the secret searches that have been
authorized under section 213 were authorized to be secret indefinitely,
even though the Department has simultaneously said that a secret search
under section 213 cannot be kept secret forever. The Attorney General
has also testified that the ``average'' length of time a search is kept
secret is between 30 and 90 days, but the government has not shared the
details of most of its secret searches with the American people and has
shared only limited information about a few carefully selected ones it
wanted to discuss.\2\
---------------------------------------------------------------------------
\2\ Oversight of the USA Patriot Act: Hearing Before the Senate
Judiciary Committee, 109th Cong. (2005) (Attorney General Gonzales
Responding to Senator Feingold).
---------------------------------------------------------------------------
The indeterminateness allowed by the statute as it currently exists
is directly contrary to the rulings in the only two circuit courts to
fully consider the issue of a lower court authorizing criminal search
warrants with delay in notification allowed before the PATRIOT Act.\3\
In the first such case, a circuit court held that ``in this case the
warrant was constitutionally defective in failing to provide explicitly
for notice within a reasonable, but short, time subsequent to the
surreptitious entry. Such a time should not exceed seven days except
upon a strong showing of necessity.'' \4\
---------------------------------------------------------------------------
\3\ Stephen D. Lobaugh, Congress's Response to September 11:
Liberty's Protector, 1 Geo. J.L. & Pub. Pol'y 131, 143 (Winter 2002)
(stating, ``The Supreme Court has not ruled on the constitutionality of
``sneak-and-peek'' searches, and only two United States Courts of
Appeals have heard such cases.''). A third case, United States v.
Simons, 206 F.3d 392 (4th Cir. 2000), relied upon by the Justice
Department did not involve a criminal search warrant that the issuing
judge approved be kept secret at the time the warrant was executed and
the lower court ultimately found that law enforcement did not
deliberately disregard the rules in failing to leave notice of the
warrant.
\4\ United States v. Freitas, 800 F.2d 1451, 1456 (9th Cir. 1986).
---------------------------------------------------------------------------
The only other circuit court to consider a lower court-approved
delay in notice of a search, the Second Circuit, insisted on a specific
time period for notice of a secret search, holding that notice could be
delayed for only seven days unless there were fresh showings of cause
for extensions.\5\ Prior to the PATRIOT Act and since it passed, the
Supreme Court has not issued any decisions endorsing the
constitutionality of secret criminal search warrants, except in the
limited context of warrants authorizing the installation of devices
(i.e., bugs) for audio surveillance specifically authorized by statute,
a decision the Department wrongly relies on as authority for its
position that the Court has approved ``sneak and peek'' searches for
general purposes.\6\
---------------------------------------------------------------------------
\5\ United States v. Villegas, 899 F.2d 1324, 1339 (2nd Cir. 1990).
\6\ Dalia v. United States, 441 U.S. 238 (1979).
---------------------------------------------------------------------------
The idea that giving an American citizen notice that their home or
business is being searched by the police is central both to the spirit
and to the letter of the Constitution. Indeed, the principle that law
enforcement should ``knock and announce'' their presence before
executing a search warrant was well entrenched in the common law by the
time of the Constitution's ratification, going back perhaps an
additional 300 years before the American Revolution.\7\
---------------------------------------------------------------------------
\7\ Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment Sec. 4.8(a) (4th ed. 2004).
---------------------------------------------------------------------------
Notably, the dreaded general warrants or ``writs of assistance''
wielded by the British crown's customs inspectors in colonial America
actually ``required that notice be given before entry was made, and
reported instances of [their] use included notice.'' \8\ These searches
were reviled not because they were conducted covertly under cover of
night, but because they did not require any particularity or probable
cause before issuance. The Supreme Court has relied on the original
intent of the Framers in deciding that notice of a search is a basic
aspect of whether a search is ``reasonable,'' as expressly required by
the Constitution. In Wilson v. Arkansas, Justice Thomas wrote for a
unanimous court that the ``common-law `knock and announce' principle
forms a part of the reasonableness inquiry under the Fourth
Amendment.'' \9\
---------------------------------------------------------------------------
\8\ Id.
\9\ 514 U.S. 927 (1995).
---------------------------------------------------------------------------
Accordingly, the scope of permissible delay under section 213 of
the PATRIOT Act is far broader than that contemplated by the appellate
courts that examined sneak and peek authority prior to the PATRIOT Act.
As such, supporters of modest PATRIOT Act reform have asked that
Congress precisely delimit the period of delay. The bipartisan SAFE Act
would create a time limit for the secrecy of such searches. The SAFE
Act limits the initial period of delay to seven days, and allows that
period to be renewed for good cause (for additional seven-day periods
in the House version, and for 21-day periods in the Senate version). I
commend Congressmen Flake and Conyers for co-sponsoring this
legislation.
I would note that the notice, or knock and announce, principle has
been allowed by the courts to give way to countervailing law
enforcement interests in extraordinary circumstances, which leads me to
the second fundamental flaw of section 213. The operative word here is
extraordinary, something that the PATRIOT Act ignores by authorizing
secrecy under circumstances that too many criminal cases might meet.
This flaw is more substantively dangerous than the open-ended notice
provision of section 213 because it telegraphs to law enforcement
agents that they can relatively easily get approval for a secret
search.
Specifically, 18 U.S.C. Sec. 3103a(b)(1), enacted by the PATRIOT
Act, requires an agent seeking a sneak and peek warrant to show that
notice would have an ``adverse result'' as defined by 18 U.S.C.
Sec. 2705, to include destruction of evidence, danger to a person,
flight from prosecution, witness tampering or ``otherwise seriously
jeopardizing an investigation or unduly delaying a trial.'' Leaving
aside the issues of whether secret searches should be allowed generally
in cases far afield from terrorism, the fifth provision--the catch-all
exception--is the most problematic.
Congress should eliminate the catch-all exception and circumscribe
section 213. On the evening before the Senate Judiciary Committee's
first hearing in preparation for the sunsets debate, the Justice
Department released new statistics showing a marked increase in the use
of these secret searches. This, by the way, is another reason Congress
should impose a sunset on section 213 so that it will not become a
permanent fixture in our criminal system, and also give the Executive
Branch some incentive to account for its use of this extraordinary
power.
Between November 2001 and April 2003, the authorities used section
213 of the PATRIOT Act 47 times, a rate of 2.7 a month. Between April
2003 and January 2005, they requested and executed 108, a rate of 4.7 a
month. At the Senate Judiciary Committee hearing, Chairman Specter
disclosed that in a closed-door briefing DOJ admitted that 92 of the
155 sneak and peek searches that have been authorized since the PATRIOT
Act have been under the vague ``catch all'' section, that there is
``reasonable cause to believe that providing immediate notification of
the execution of the warrant may'' jeopardize an investigation.\10\
That's nearly 60% of the time.
---------------------------------------------------------------------------
\10\ Oversight of the USA Patriot Act, supra note 3.
---------------------------------------------------------------------------
The use of the catch-all will undoubtedly grow dramatically as the
spotlight on the PATRIOT Act begins to fade. Arguably law enforcement
could claim immediate notice of a search would jeopardize an
investigation in many, perhaps most, criminal cases. Notably, agents
have never been turned away in a request for a sneak and peek warrant.
One must recall exactly what happens when federal agents use
section 213. The government obtains a search warrant that allows agents
to break into a private residence, enter under cover of darkness,
conduct an extensive search of the premises, retain digital or paper
files, document the search with photographs, seize tangible property
like DNA, and then leave.
In testimony before the Senate Select Committee on Intelligence,
Attorney General Gonzales recently selected example of where the catch-
all definition of ``adverse result'' was used to secure a sneak and
peek warrant.\11\ Although the scenario was ostensibly meant to
illustrate the need for retaining the open-ended justification for
sneak and peek warrants, I believe it actually showcased the problem
with this provision:
---------------------------------------------------------------------------
\11\ The USA Patriot Act of 2001: Hearing Before the United States
Senate Select Committee on Intelligence, 109th Cong. (2005) (testimony
of Attorney General Alberto Gonzales).
---------------------------------------------------------------------------
In this case, the Justice Department obtained a delayed-notice
search warrant for a Federal Express package that contained counterfeit
credit cards. At the time of the search, it was very important not to
disclose the existence of the federal investigation, as this would have
exposed a related Title III wiretap that was ongoing for major drug
trafficking activities.
An organized crime/drug enforcement task force, which included
agents from the DEA, the IRS, the Pittsburgh Police Department and
other state and local agencies was engaged in a multi-year
investigation that resulted in the indictment of the largest drug
trafficking organization ever prosecuted in the Western District of
Pennsylvania.
While the drug trafficking investigation was ongoing, it became
clear that several leaders of the drug trafficking conspiracy had ties
to an ongoing credit card fraud operation. An investigation into the
credit card fraud was undertaken and a search was made of a Federal
Express package that contained fraudulent credit cards.
Had notice of the Federal Express search tied to the credit card
fraud investigation been immediately given, it could have revealed the
ongoing drug trafficking investigation prematurely, and the drug
trafficking investigation might have been seriously jeopardized. Even
modest delay would not have been available if this provision of Section
213 were deleted.
I would urge the Members of the Subcommittee to question the
Attorney General at more length about this example.
First, I think it notable that this case does not involve terrorism
at all. Although the Justice Department continues to argue that those
of us who voted for the PATRIOT Act knew full well that this was an
omnibus crime measure, not just a terrorism bill, I think that is
disingenuous. Attorney General Ashcroft was quite clear in his
admonitions that delay on passage of the PATRIOT Act would lay the
blame for any future terrorist attack on our heads. Yet, as we saw in
the Justice Department's field report on the use of section 213,
released in September 2004, it appears that the government is using
delayed-notification search warrants primarily in criminal cases.\12\
---------------------------------------------------------------------------
\12\ Department of Justice, Delayed Notification Search Warrants: A
Vital and Time-Honored Tool For Fighting Crime, Sept. 2004.
---------------------------------------------------------------------------
Second, I do not see how this example bolsters the case for
retaining the catch-all definition of ``adverse result'' for sneak and
peek warrants. Could the agents in this case have made a solid argument
that notice of the search would have resulted in the destruction of
evidence, flight from prosecution, or intimidation of persons or
witnesses? If so, they could still have obtained a delay under more
exacting rules. If not, what did they believe would be the result of
providing notice?
Fixing this failing in section 213 is not difficult. The SAFE Act,
in both the Senate and the House, would remove the catch-all provision.
I urge the Subcommittee to support this modest improvement to the
PATRIOT Act.
Finally, I would note the increasing use of sneak and peek
searches. One of the primary reasons we insisted on including sunset
provisions in the PATRIOT Act was out of fear that by breaking down
checks and balances on government authority, we would encourage
``mission creep'' and the use of these broadened authorities in
contexts far afield from counter-terrorism.
And, while I acknowledge the Justice Department's argument that the
use of delayed-notification search warrants only represents a small
fraction of the tangible searches conducted by federal authorities
annually, I fear my concerns are not assuaged. Sneak and peek warrants
are inherently problematic. They do not give you a chance to examine
the warrant before execution for mistakes or to challenge it.
While I think anyone knowledgeable about the practical nature of
law enforcement, criminal investigation and counter-terrorism can
contemplate the need for this special power under very special
circumstances, the PATRIOT Act really threatens to make what should be
an extraordinary power an ordinary power. And for that reason, I ask
you to support at least the modest changes to the language of the law
embodied in the SAFE Act.
Additionally, I would note the there is incomplete information
about how this power has been used. We know it has been used at least
155 times as of this January. What we do not know, and what the
government isn't telling the Judiciary Committee or the American
people, is:
<bullet> how many times section 213 has been used in terrorism
cases, as opposed to more ordinary crimes;
<bullet> how many times it has been used against citizens,
versus foreign suspects;
<bullet> how many times the secret warrants have led to
prosecutions or convictions and how many of those were in
terrorism cases; and
<bullet> what happens to the contents of such secret searches
(taking photos of people's homes, copies of their computers or
their even their DNA samples) if no charges are brought.
I will now turn briefly to the other sections that are a subject of
this hearing.
Section 223, which provides a civil remedy for victims of unlawful
government surveillance, is a common-sense privacy protection measure
and should be renewed. However, victims of secret surveillance abuse
will often not know of such abuse and, as a result, the usefulness of
section 223 is limited. Nevertheless, while it may be rare for an
innocent person to discover they have been the victims of unlawful
government surveillance, in such cases there should be a remedy, and
section 223 provides one. It should be made permanent.
Sections 201 and 202 of the PATRIOT Act added new terrorism-related
crimes to the list of criminal wiretapping predicates under Title III.
While any expansion of federal wiretapping powers must give small
government conservatives some pause, I personally regard these
provisions of the PATRIOT Act as mainly beneficial to law enforcement
and not unduly intrusive on the privacy of the American people. Title
III requires a court order from a regular federal district court based
on probable cause of crime, the time-honored Fourth Amendment standard
that is lacking in surveillance orders approved by the special court
that administers the Foreign Intelligence Surveillance Act (FISA). As a
result, Title III surveillance is much less susceptible to abuse than
FISA surveillance. The new wiretapping predicates listed in sections
201 and 202 are serious federal crimes. In my personal opinion,
Congress should make sections 201 and 202 permanent.
I look forward to your questions. Thank you.
Mr. Coble. I thank all of the Members.
Now, folks, we apply the 5-minute rule to ourselves as
well, so if you all could keep your responses as tersely as
possible, that way we can cover more ground.
And, Mr. Sullivan--strike that.
We have been joined by the distinguished gentleman from
California. Dan, good to have you with us. No one else is here.
Mr. Sullivan, if section 201 of the USA PATRIOT Act is
allowed to expire, is it true that criminal investigators could
obtain a court-ordered wiretap to investigate mail fraud and
obscenity offenses on the one hand, but not offenses involving
weapons of mass destruction? Is that correct?
Mr. Sullivan. That's a correct statement, Mr. Chairman.
Mr. Coble. That was a rhetorical question. I thought that
was right. Do you want to elaborate just a minute on it?
Mr. Sullivan. Well, certainly. Congress essentially has
provided a number of predicate offenses in which electronic
surveillance would be allowed. The circumstances of section 201
included offenses that traditionally terrorists have used prior
to the passage of section 201, and the Government was not
permitted to essentially use electronic surveillance for those
particular offenses.
Mr. Coble. Thank you, sir.
Mr. Barr, your distinguished tenure as U.S. Attorney in
Georgia, at any time did you or any of your assistants file an
application for a delayed notification of a search warrant?
Mr. Barr. I don't recall specifically, Mr. Chairman. It
wouldn't surprise me if there were circumstances such as many
of those very appropriate examples laid out in the former--the
current Attorney General's testimony and the report submitted
to the Congress. It wouldn't surprise me if my office did under
such circumstances as those. I don't specifically recall any
instances, Mr. Chairman.
Mr. Coble. I thank you.
Mr. Rosenberg, section 213 requires that notice be given to
those against whom a search warrant was executed within a
reasonable amount of time. Now I've known that as few days as
7, and I think 180 at one point. Comment what, in your opinion,
is reasonable and how oftentimes a judge might come to that
conclusion.
Mr. Rosenberg. Thank you Mr. Chairman for the question.
That is a very fact-specific inquiry.
In every case we go to the judge, and we ask her for what
we believe we need in a particular investigation, whether it's
drugs or mob or child pornography. So 7 days may well be all we
need in a particular case, and all we get. In another case it
may be 3 weeks or 2 months. And so each time we will go to the
judge and attempt to demonstrate not just probable cause for
the search, but reasonable cause for the delay based on the
facts and circumstances.
Mr. Coble. I thank you.
Ms. Mac Donald, I am told--and I have not seen it--but I am
told that the ACLU has run a television advertisement claiming
that section 213 of the USA PATRIOT Act allows law enforcement
to search homes, ``without notifying us.'' Now, are you
familiar with that ad?
Ms. Mac Donald. Well, that sounds very similar to a written
copy that they produced soon after the PATRIOT Act was passed.
Mr. Coble. And if, in fact, that was disseminated, I
believe that would be an inaccurate description of section 213;
would it not?
Ms. Mac Donald. It's a classic example, Chairman, of the
strategies used against the act to rewrite it, to amend the
statute by saying--ignoring the fact that a judge has to
approve delayed notice, and the fact that notice is only
delayed, it is not a permanent condition that the Government is
asking for.
Mr. Coble. I thank you.
Bob, I think I have one--time for one more question.
In your testimony, Mr. Barr, you briefly mention that you
support making permanent sections 201 and 202, and 223 of the
PATRIOT Act. Explain to us why you are comfortable with that
position.
Mr. Barr. Thank you, Mr. Chairman.
With regard to section 201 and 202, which simply add new or
added new terrorism-related requirements to the list of
criminal wiretapping predicates under title III, I think, the
offenses that have been and would continue to be included if
that provision is extended are appropriate.
We also understand, of course, as this Committee does, that
title III includes within its provisions many safeguards on the
extent to which and the way in which a title III wiretap, so to
speak, is carried out. So there are plenty of safeguards in the
statute already.
Section 223, which provides a civil remedy for victims of
unlawful Government surveillance, I think, is a common-sense
privacy measure that should be renewed. And I think there is
also--Congress acted correctly initially. We've looked at
those, I'm sure the Subcommittee and the full Committee will
look carefully at them, and we have no problem with those being
reauthorized.
Mr. Coble. Thank you. My time has expired.
The gentleman from Virginia.
Mr. Scott. Thank you.
Ms. Mac Donald, I was intrigued with your use of the word
``propaganda'' because we've been having some trouble trying to
get some straight answers from some of the other witnesses, and
there is exaggeration of some of the provisions. We haven't
discussed this provision today, but the FISA wiretaps and some
of the expanded powers under the Foreign Intelligence
Surveillance Act, everybody comes and testifies without
exception about the use in terrorism, terrorism, terrorism. And
it is almost like pulling teeth to try to get them to
acknowledge that FISA is not just terrorism; in fact, it can be
used even if crimes are not involved, if it's involving generic
foreign intelligence, conduct of foreign affairs.
And when you talk about hiding the judge, they say, yes,
but we have to get probable cause. And then you say, probable
cause of what? You don't have to find probable cause of a
crime, just probable cause that the person you're starting the
wiretap with is an agent of a foreign government. There doesn't
have to be any crimes involved.
So I agree with you that there is a lot of misinformation,
and I appreciate your testimony today.
Let me ask you a specific question. You indicated, I think,
that you could not have one of these secret searches where the
delay is permanent, where it is an indefinite secret; is that
your testimony? Did the Attorney General say that six of the
secret searches were authorized by a court to be secret
indefinitely?
Ms. Mac Donald. I'm not aware of that. There are
possibilities for continuing delay; but again, that is a fact-
based determination, and I think that----
Mr. Scott. It could be permanent, you may never know. You
may never know.
Ms. Mac Donald. In a completely hypothetical scenario, I
suppose, if you have an ongoing investigation----
Mr. Scott. Let's ask Mr. Rosenberg. Any cases where the
search--where the court has authorized an indefinite secret?
Mr. Rosenberg. To my knowledge, Mr. Scott, if you're
talking about delayed notice searches apart from FISA, notice
is always given, always. Now, the investigation may run a long
time----
Mr. Scott. Indefinitely.
Mr. Rosenberg. Well, no, not indefinitely, a long time. And
at the end of that time----
Mr. Scott. You're not aware of any cases where the court
has authorized an indefinite secret?
Mr. Rosenberg. Well, let me say it this way: At the end of
the investigation, notice will be given. Now, there may be a
case----
Mr. Scott. Or, as a matter of fact, the end of the war on
terrorism. That's when enemy combatants get out of jail.
Mr. Rosenberg. There may be a case where a judge leaves it
open and requires the assistant United States attorney to come
back, and often we do. Often we come back and ask for
permission again.
Mr. Scott. Well, we will get more specific information on
these six cases.
Mr. Rosenberg, when you use the word ``judge,'' are you
using United States district court judge and United States
magistrate interchangeably?
Mr. Rosenberg. Yes, sir.
Mr. Scott. Okay. When you go to get one of these warrants,
does the U.S. Attorney or an assistant U.S. Attorney go, or
does the FBI go by itself?
Mr. Rosenberg. That practice will vary. In the Eastern
District of Virginia, where I was an assistant U.S. Attorney,
both in Norfolk and Alexandria, the practice was typically--and
I believe in Alexandria all the time--for the assistant U.S.
Attorney to accompany the agent to the magistrate judge's
chambers when the warrant was sworn out.
Mr. Scott. In the normal search you have some checks and
balances. You have to announce so the person being searched has
an opportunity to contest it. If it is overly broad, they can
comment on that, and if it's out of bounds, they can--you're
subject to the exclusionary rule. If you have several searches,
and only one of them produces any evidence, what is the
sanction against not notifying those for whom you're not using
evidence?
Mr. Rosenberg. Well, let me just pick at one part of the
premise. Delayed notification searches are normal searches,
they just have delayed notice. But in all cases, Mr. Scott, in
all cases, if there is a criminal proceeding--and often there
is at the end--then the subject of the search can challenge it
in all the ways----
Mr. Scott. If there is no criminal proceeding, if you
didn't find anything in the search----
Mr. Rosenberg. Then, for instance, under rule 41 of the
Federal Rules of Criminal Procedure, the subject of the search
can move for the return of his property.
Mr. Scott. If there is nothing to return. Well, they don't
know, if you didn't let them know.
Mr. Rosenberg. But you do let them know. You always let
them know.
Mr. Scott. What is the sanction for not letting them know?
Mr. Rosenberg. You mean for willfully violating a Federal
rule of criminal procedure? I'm not an expert here, but I
imagine there would be some civil remedy.
Mr. Scott. For evidence that is excluded in court under the
exclusionary rule which suggests that some violation occurred,
are you aware of any police officer or prosecutor that has ever
been prosecuted for the illegal search, other than being
embarrassed with the exclusionary rule?
Mr. Rosenberg. Not all bad searches are illegal searches,
sir; some bad searches are made in good faith, and evidence is
suppressed even though there is no illegality.
Mr. Scott. If you have a bad search and don't notify them,
what is the sanction?
Mr. Rosenberg. You do notify them; you notify in all cases.
Mr. Scott. But there is no sanction if you don't.
Mr. Rosenberg. Again, if you don't notify--if you willfully
violate the Federal Rules of Criminal Procedure, Mr. Scott,
then I would imagine at the end--it hasn't happened to me, I
have never willfully violated the rules of criminal procedures
as a prosecutor--that there would be a remedy for the subject
of the search.
Mr. Coble. The gentleman's time has expired. The
gentleman--in order of appearance, the gentleman from Ohio Mr.
Chabot is recognized for 5 minutes.
Mr. Chabot. Thank you, Mr. Chairman. I want to thank you
for holding this important hearing.
I want to first join my colleagues in welcoming former
Congressman Bob Barr; we are very interested in his testimony.
We may not agree with everything, as we didn't necessarily
agree on this Committee all the time, but it was an honor to
serve with Congressman Barr here. And we sat next to each other
for about 8 years on this Committee and on the full Judiciary
Committee and went through all kinds of things together, from
impeaching Presidents to debating about whether or not we ought
to put cameras in the Federal courtrooms, and a whole range of
other issues.
So it's great to have you back today, Bob. Bob, we wish you
best in the future as well. I would like to see you back up
here someday if the cards are right.
Let me, if I can, turn to you at this point Ms. Mac Donald.
And Mr. Scott was cross-examining you there with some questions
and things, and because of time, oftentimes witnesses don't get
a chance to respond to the extent that they might like to. If
there are any additional responses that you might like to make
to any of the points that my friend was making, I would be
happy to give you that time now.
Ms. Mac Donald. Well, I think, again, we need to understand
that these are members of the Federal judiciary who have been
sworn to uphold the Constitution that are ruling on whether
delay is reasonable in a particular search. And again, this is
after already having found probable cause to conduct the search
in the first place.
There is a second step that the judge has to go through in
approving a delayed notice search, which is, is there grounds,
certain exigent circumstances that make delay reasonable, such
as witness intimidation or obstruction of evidence.
It seems to me we have to assume that the checks and
balances that the Founders provided in setting up the
Constitution in the first place, the most important of which is
judicial review, will work in this situation. I don't
understand how you can possibly conduct a preemptive
investigation, whether it's a criminal investigation or a
terror investigation, without a delayed notice capacity. It is
logically impossible to preemptively investigate either a crime
or terrorism and notify the subjects of the search.
Mr. Chabot. Thank you.
Let me ask you another question. The Knoxville News
Sentinel in Tennessee reported that during the jury
deliberation process in the case of Hafiz and Torres-Luna that
ultimately found the two men not guilty of cocaine possession
and distribution, as well as multiple Federal firearm
violations, the jury posed a PATRIOT Act-related question to
the judge. The question asked, if the defendants were being
tried under the PATRIOT Act--in a handwritten note to the judge
added that the PATRIOT Act had been ruled unconstitutional in
four States and several municipalities. Judge Leon Jordan
responded simply, ``no''. Could you comment on that story?
Ms. Mac Donald. That's classic. You found a classic
example. The ACLU and other groups have done a bang-up job of
getting misunderstanding out there. Everybody thinks they're
under PATRIOT Act investigations. They think the war in
Afghanistan is being conducted under PATRIOT Act powers.
The PATRIOT Act was a narrow act designed for one thing and
one thing only, intelligence. It acknowledged the fact that our
only weapon against terrorist is intelligence. We cannot
target-harden our way into safety.
And so when it comes to bringing surveillance powers into
the 21st century, acknowledging the existence of cell phones
and e-mail, the PATRIOT Act does that, tearing down the wall
that prevented two FBI agents on the same al Qaeda squad from
talking to each other, the PATRIOT Act tore down that wall. It
is narrow; it is not something that is affecting the entire
country. And again, if there had been abuses under this act,
believe me, Congressman, we would have heard about it.
Mr. Chabot. And that's what I wanted to get into with the
little time I have remaining. I know, Mr. Rosenberg, I think,
Mr. Sullivan, you also indicated, that there weren't any
examples of PATRIOT Act abuse, and not a single example of
abuse of civil rights and that sort of thing, and I've heard
that before.
Bob, do you have any cases or are there any examples that
you've heard that you would believe that would counter that?
What would be your response to that?
Mr. Barr. It's, of course, very difficult to say, Mr.
Chabot. For one thing, section 213 searches are conducted in
secret, so it's very difficult to know what abuses there might
have been, if any. So it's virtually impossible, at least until
the end of these investigations when--and I certainly take the
Department of Justice at its word, that at the end of the
investigations, everybody will be notified. The problem is, Mr.
Chabot, we know for a fact, according to the Attorney General's
testimony, that in at least I believe six of the instances in
which the Government allows that it has sought the section 213
authority to conduct a search without notice, that the delayed
notice has gone on indefinitely. So it's virtually impossible
to say, Mr. Chabot.
We do know there have been some examples of noticeless
searches such as that, even though it was not conducted under
section 213, the problems that manifest themselves are the
same, the Mayfield case out in Oregon. And I don't want to get
into a big discussion of that, but that was simply a case in
which there was a noticeless search that turned out to be
problematic.
So I think one can reasonably state that there have been
problems, the extent of which, the magnitude of which it is
impossible to say at this still relatively early stage in the
exercise of section 213 powers.
Mr. Chabot. Could I ask for unanimous consent for 1
additional minute, if I could, just to ask for a response?
Mr. Coble. I'll do that, but we're going to have a second
round as we go.
Mr. Chabot. If I could have 1 minute, I would appreciate
it.
Mr. Coble. All right.
Mr. Chabot. Would any of the witnesses like to respond to
the response about allegations and the secret cases and things?
Ms. Mac Donald. I would like to respond to the Mayfield
case, because I know it has been raised before. The Mayfield
case was not an abuse of the PATRIOT Act. The problem was there
were fingerprints; the FBI misread the fingerprints. But it's--
the use of the PATRIOT Act were completely valid. And this was,
after all, a terrorism investigation. Let's remember the
context. This was after the Madrid train bombing, and the FBI
had evidence that led them to Mr. Mayfield. Unfortunately they
read their prints wrong. It had nothing to do with abuse of the
PATRIOT Act.
Mr. Chabot. Thank you very much. Yield back.
Mr. Coble. The Chair now recognizes Mr. Sullivan's personal
Congressman, Mr. Delahunt.
Mr. Delahunt. That's right, I am his Congressman.
Ms. Mac Donald, I think that Mr. Barr's observation that
access to information is very problematic in terms of reaching
a conclusion as to whether there has been problems or abuse--
you know, you referenced earlier the--I think it was 1968 and
J. Edgar Hoover and the FBI having transformed itself.
[10:58 a.m.]
Mr. Delahunt. I beg to differ. I think it has transformed
itself recently. But one can point to numerous abuses during
the 1970's and the 1980's and the 1990's. I know Mr. Sullivan
is familiar with what occurred in the Boston office of the FBI,
as am I.
You know, you talk about secrecy in Government or distrust,
if you will, of secrecy in Government. I would suggest it is
healthy. It is really, if you will, reflective of the Founders'
concerns about Government. It really led to the Bill of Rights.
I think that Mr. Barr would probably concur with that. So I can
assure you--I sat on a Committee that was examining the conduct
of the Boston office of the FBI; to secure information from the
executive branch of Government was extremely difficult. We do
not know what is occurring, and I say Congress does not really
know. And I am not suggesting any individual is in any way
withholding information. It is just, if you will, I presume
that the natural tensions that exist between the branches. But
the problem is, is secrecy in Government.
You know, the American people are reading that there is a
huge increase in the number of classified documents on a yearly
basis. You know, the gentleman that is responsible for archives
and the keeping of that information has publicly expressed
concern. So notice and transparency, you know, is important in
terms of accountability. We are all held to be accountable. I
hope that there are very few abuses. I mean, I think you say
you cannot cite a single example. Well, we do not know.
And I guess, let me direct this question to Mr. Barr,
because he served in Congress, and he is familiar with the
relationship between the branches. And I have to tell you
something, I think we have had a series of very informative
hearings under the leadership of Chairman Coble relative to the
PATRIOT Act, but I am becoming more and more inclined to not
make permanent any particular provision that will sunset. In
fact, I would go a step further, because I would entertain and,
possibly when the time comes, seek to amend to make the entire
PATRIOT Act subject to sunset. I do not know how many years.
But I have no doubt that it would encourage cooperation by the
executive branch and enhance accountability to the American
public.
And I would--Bob, what is your--former Congressman Barr,
what is your take on my observations?
Mr. Barr. Well, it is a view that I share and I think the
true conservatives share as well. And I am somewhat mystified
why a lot of my former colleagues and your current colleagues
are so afraid of a sunset provision.
Particularly those of us who are conservative about many
issues understand the need for oversight, as you have
eloquently expressed it, and we also know that the realities
are that if, generally speaking, if Congress does not have to
do something, it will not. And this is a case in point. I do
not think that we would be here today, I do not think that
these hearings would be convened at this point in time were it
not for the sunset provisions. It is a very, very important
provision that liberals and conservatives alike ought to
embrace.
Mr. Coble. I thank the gentleman.
The distinguished gentleman from California. If you will
suspend just a minute.
Let me say to my friend from Massachusetts, the other day,
you may recall I indicated that I am not uncomfortable
conceptually with sunsets; it gives us a chance to come back
and reexamine it. But I would say this--and this would be over
my pay grade I am sure--but I would like for us subsequently
to, when we examine sunsets, I would like for it to be at the
end of a Congress rather than in the first early weeks as the
case has been now. We have been jumping through hoops, as you
all know, for the past 2 months.
The gentleman from California.
Mr. Lungren. Thank you very much, Mr. Chairman.
Thank you, members of the panel, for appearing before us.
Mr. Barr, I happen to think oversight is extremely
important. That is why I have made the observation more than
once that Congress cannot do appropriate oversight just meeting
Tuesday through Thursday. That is above our pay grade here, but
I mean that honestly. Congress ought to reorganize itself so
that we are here 5 days a week. This Chairman is working very
hard to do it, but the compression of time with Committees and
Subcommittees where, basically, part of Tuesday and Wednesday
is the only time you have got to meet together I do not think
gives us proper time for reflection. And that is just an
observation I have had after being gone from this place for 16
years.
Mr. Rosenberg, Mr. Barr has said that ``secret searches,''
of American homes and businesses must not be allowed to become
routine; they must be closely circumscribed. I happen to agree
with him on that. However you characterize it--but one way the
Government can justify delayed notice search warrants is
through--well, the ways they can are articulated specifically
in the statute. But one of those is number five: Notification
would cause serious jeopardy to an investigation or unduly
delay a trial. That has been criticized as being a catch-all
phrase that leads to delayed notice being issued in run-of-the-
mill cases. How would you respond to that characterization?
Mr. Rosenberg. Mr. Lungren, by the way, I believe, too,
that we should be carefully circumscribed and scrutinized in
the way that we use this power. Having said that, I do not see
that as a catch-all provision. As a career prosecutor, I can
tell you that most of the time that we use a delayed notice
search--and, again, we only use it in two out of every thousand
searches or so--it is because notifying the subject of the
search prematurely is going to essentially end, upset, or
jeopardize the investigation. And just to be clear: We need to
go to a judge, a magistrate judge or a Federal judge, and
demonstrate that to her satisfaction.
So you may call it a catch-all provision--not you
personally. Others may call it a catch-all provision, but it is
not. It is really the part of the statute that we rely on most
often, at least the plurality of the time, that we are seeking
this authority, because that is the way we do our business. We
have investigations, and as they play out, we like to see who
else is involved, who the conspirators are, who they are
talking to, who they are selling to. And if we bring it down
too fast, we jeopardize that.
Mr. Lungren. I know we have had this in the law for some
period of time. We want to make sure it applies to terrorist
cases. And it has been my observation that we do have the
presence of so-called sleeper cells in the United States who we
have evidence not only have been here for days, months, but
years, which would suggest an investigation of people involved
in that might take more than a few days. And in his written
testimony, Congressman Barr stated that section 213 sets no
limits on the length of time notice of search warrants
execution may be delayed.
But isn't it true, Mr. Rosenberg, Ms. MacDonald, that the
judge would set the time? The judge sets the time? And that if,
at the end of that time, you need more time, you have to go
back?
Mr. Rosenberg. That is exactly right, sir. The judge would
set that time based upon our application. We would have to
demonstrate what we needed and why we needed it.
Mr. Lungren. What about Mr. Barr's suggestion that 7 days
would be a reasonable time, at least to start the process
going?
Mr. Rosenberg. He is right in some cases, 7 days may be all
we need in some cases. But it is clearly not all we need in
certain cases. And so I believe the way the law is written now
gives us the flexibility and the judge the necessary oversight
to set a reasonable amount of time.
Mr. Lungren. Now, let me mention, in the letter that we
received from the Justice Department, they talked about one of
the cases that was involved with the U.S. Attorney in the
Southern District of Illinois sought and received approval to
delay notification based on the fifth category of adverse
result. The length of the delay granted by the court was 7
days. Notification could not be made within 7 days, and the
office was required to seek 31 extensions. The office was able
to do that. Why is that a problem?
Mr. Rosenberg. Well, it is a problem only in the following
sense: Every time we go back--and we go back often for many
things--but every time we go back, we are not doing something
else. We have a finite pool of resources; we can spend it in
any number of ways. In this case, the judge gave us 7-day
increments.
Mr. Lungren. Thirty-one times.
Mr. Rosenberg. Thirty-one times. But that is 31
applications, 31 times that the agent comes down to the
courthouse to swear out the warrant; 31 times that an assistant
U.S. Attorney is not doing something else.
Mr. Lungren. Let me ask Mr. Barr to follow up on that and
then ask you to respond because my time will be up.
Congressman Barr, here you have a situation where they went
31 times, each time getting 7 days. Doesn't that seem a little
silly? Or do you think that is appropriate because what we are
doing is we are protecting constitutional rights, and
therefore, we ought to extend that? And my second question is,
is it the 7 days that you support, or is it some statutorily
specified time that could be longer than 7 days?
Mr. Barr. I do not think there is anything magical about 7
days, Mr. Lungren. I do think it is important that there be a
requirement on the Government such as in the SAFE Act that I
and a number of others are supporting. For extensions, we
believe that is entirely appropriate. I do think, though, that
if the Government is forced to go back to the court on a
regular basis, and if it is 7 days, then it is 7 days. And my
experience as a U.S. attorney, that sort of thing was never a
problem. Yes, does it take a few minutes of time? Absolutely.
But those are procedures that are, generally speaking, fairly
routine to both the assistant U.S. attorneys and the
investigators.
Mr. Lungren. Would 21 days or 30 days be appropriate under
your concept?
Mr. Barr. I think 21 days could be. And that is the
provision that is provided in the SAFE Act which is pending in
the other body in the Senate version.
Mr. Lungren. Ms. MacDonald?
Ms. MacDonald. Well, Mr. Barr reminded us of the
constitutional history of warrants and warrants for searches
perfectly appropriately.
And of course, Mr. Delahunt, we need to preserve the
constitutional framework for our Government. I believe the
PATRIOT Act does that. But let us remember that the fourth
amendment itself speaks in terms of reasonableness. It
prohibits only unreasonable searches. It does not itself try to
codify that with numerical terms. So judges, their very
profession is involved in reading broad grants of authority
like the Constitution gives them. So I think that the wording
of the current section 213, which says you may delay notice for
a reasonable period of time, is fully within the constitutional
tradition and allows judges to make that fact, specific
determination for each preemptive investigation.
Mr. Coble. The gentleman's time has expired.
Mr. Rosenberg, I noticed that you referred to judges in the
feminine gender. I do not want any of these male judges to
accuse you of discrimination. Hopefully, that will not happen.
Mr. Rosenberg. I have a daughter at home who is going to
make sure I do it just that way.
Mr. Coble. Very well.
Folks, in view of my allergy infirmity, I am going to rest
my vocal cords, and let Mr. Scott start the second round.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Barr, if you give the notice late, if you violate the
law, if you had 7 days to do it and you turned in the evidence,
turned in the report a couple of days or a couple of weeks
late, but you are not going to use the evidence, is there any
sanction?
Mr. Barr. Currently, no, the law provides none.
Mr. Scott. Now, when we start trusting people, we have to
put it in the context that this Administration in prior
testimony on enemy combatants suggested that you could arrest
an American citizen and hold them indefinitely without charges
until the end of the conflict, which sounds like until the end
of the war on terrorism, which certainly violates what most of
us thought the Constitution would have required.
So let me ask you, Mr. Barr, another question. On the
question of Mohammed Atta's computer, are there provisions in
the law right now without the catch-all provision that would
have allowed someone to get to his computer? Or would you have
to rewrite the catch-all provision to be able to allow the
search of his computer on a delayed notice?
Mr. Barr. I think, Mr. Scott, that if you look at the
language of the exception, the adverse result, which is found
in 18 U.S.C. 2705, clearly, and I think this is evident in the
various examples of how delayed notice or notice-less searches
have been used that have been provided by the Department of
Justice and by the Attorney General. The categories that we are
talking about here, endangering the life or physical safety,
flight from prosecution, destruction of or tampering with
evidence, or intimidation of potential witnesses are extremely
broad. And I went through the list of examples that the
Department has cited, and I would be hard pressed as a former
prosecutor using one's imagination within the bounds of the law
not to find an appropriate basis even in those four exceptions
to the general rule to take into account the situation that
would have been faced or would be faced in a Mohammed Atta
situation.
And it is also important, I think, to emphasize, Mr. Scott,
that the SAFE Act, which is simply one vehicle now currently
pending before both houses of the Congress to correct this
deficiency, clearly, clearly lays out a scenario and
appropriate basis on which that very situation could and should
be addressed.
Mr. Scott. Thank you.
Now, Mr. Barr, in your testimony, you ask several questions
about what we know about the use of section 213. And I am going
to ask Mr. Rosenberg, do you know how many times section 213
has been used in the 155 cases? How many of those were
terrorist cases? How many we used against U.S. citizens? How
many times the secret warrants have actually led to
prosecutions? And how many of those were terrorism cases? And
what happens to the contents of such searches if no charges are
brought? I assume you cannot answer those off the top of your
head.
Mr. Rosenberg. I cannot answer all of those off the top of
my head.
Mr. Scott. If you could provide us with that information.
Mr. Rosenberg. I think I can answer part of that, though,
Mr. Scott. I do not know how it breaks down between terrorism
cases and perhaps what I would call the more ordinary criminal
cases. But my impression, and again, having been an assistant
U.S. attorney for so long, that most of the time that we use a
delayed notification search it would be in the drug context or
perhaps the fraud context. Now, some of those may also be
terrorism-related. I would be happy to get back to you, though,
sir, with all the specifics or at least as many as we can
muster.
Mr. Scott. Well, if you are having a drug investigation,
any search is going to, ``seriously jeopardize an
investigation, or unduly delay a trial,'' any drug
investigation would qualify for that.
Mr. Rosenberg. Not necessarily. Not if you are at the end
of the investigation and you are doing a search and making an
arrest simultaneously.
Mr. Scott. If you are investigating drugs in a major city,
that is going to be, it seems to me, an ongoing operation.
Mr. Rosenberg. Often it is. But, again, if you are at the
end, you could certainly in theory and in practice search and
arrest, notify then, and bring the whole thing down.
Mr. Scott. Would you agree to a more comprehensive report
on the use of section 213 and have more meaningful limits on
the length of the delays for notification?
Mr. Rosenberg. I know we are happy to look at anything that
the Committee proposes. I do not have the authority to commit
the Department of Justice to anything right now.
Mr. Scott. You cannot blame me for trying.
Mr. Coble. I thank the gentleman from Virginia.
The gentleman from California, Mr. Lungren, is recognized
for 5 minutes.
Mr. Lungren. Thank you very much, Mr. Chairman.
Mr. Rosenberg, I would like to go back to the question of
the fifth basis for allowing a delayed notification, quote,
unquote, criticized by some as the catch-all phrase. Mr. Barr
in his testimony specifically claims that law enforcement could
claim that immediate notice of search would seriously
jeopardize an investigation in many and perhaps most cases, in
other words, not requiring you to be put to the test on the
previous three or four, where you have to show specifically how
it is done. Can you respond to that in some detail? And what I
mean by that is, this architecture of the law has been there
for some period of time prior to the PATRIOT Act. It has been
utilized on numerous occasions in the past. From your
standpoint, do you recognize the potential abuse there? Is this
just something that sort of is overblown? I mean, do you
understand why some people are concerned? And how do you
specifically respond to that? That is, if you have those
previous three or four, I guess it is four that you can talk
about, how come you need this one?
Mr. Rosenberg. It is a very fair question, and I appreciate
the opportunity to address it. Remember, sir, we always have a
filter on this, a very important filter, a Federal judge. And
so it might be the case--and, again, I am speaking
hypothetically now--where we do not know of a specific person
whose life is endangered or we do not know of concrete evidence
that we are going to lose or that will be destroyed. And so
there is that more general provision that allows us to
demonstrate, we hope, to a judge and have him or her authorize
the delay under the fifth provision. But we have to go to a
judge, and we have to demonstrate probable cause for the search
and reasonable cause for the delay. And so you always have this
filter. And that is the most important thing I can say today:
We have to go to a judge, and we have to show a fact-specific
reason to invoke one of these exceptions. Now, sometimes, we
will invoke two or three in the same case. Lawyers often plead
in the alternative. It is common. And we will say we think we
may endanger the life of a witness; and if we lose that
witness, it would seriously jeopardize the investigation. They
can both be true at the same time. But we will lay out all the
facts of a particular case and ask the judge to make that
determination for us. We are not doing it ourselves.
Mr. Lungren. Mr. Barr, I would love to have you respond to
that, because it just strikes me that we have had this
architecture for some years used in obscenity cases, drug
cases, organized crime cases. Now, we are having it apply in
terrorist cases. And while I share your concern that we ought
not to let the terrorists succeed by having them cause us to
tear up our Constitution in addition to or as opposed to
tearing up our physical structure, that we are faced with a
very, very serious threat that is out there. And because of the
vastness of the threat and the almost sort of new intelligence
that we are receiving and trying to understand this threat,
that that fifth category may be more appropriate in terrorist
cases than some of these other cases. And so I just ask you for
your response to that. Is your criticism that the four previous
categories are sufficient to cause specificity of evidence to
be presented before the judge such that he or she could make an
intelligent decision so that the fifth one is not necessary?
And is that what your sense of catch-all phrase is?
Mr. Barr. I do not have any problem, Mr. Lungren, with a
fifth category. And that is why, for example, in the SAFE Act
currently pending before the House and the Senate, it clearly
provides that where there could be a serious endangerment of
the national security by giving contemporaneous notice, the
Government can seek or can apply for delayed notification. That
is entirely appropriate. I think that clearly reflects the new
world in which we are operating. I think it is a very broad
authority for the Government, but yet it places a burden on the
Government for more than some bureaucratic reason which unduly
delaying a trial provides. I think unduly delaying a trial as
the basis for not providing notice which has been, since long
before our Constitution, one of the bases of privacy in our
country and freedom in our country, is clearly not sufficient.
And even if one assumes, as the Government is saying, they have
had no abuses of this, especially as a conservative, I have a
problem with the Government having that sort of broad authority
because it can be abused very easily.
Mr. Lungren. So am I. With all due respect, does that mean
you do not want us to get rid of the fifth category, or are you
just saying that we have to be particularly observant of that
fifth category?
Mr. Barr. I think it needs to be that--and I do believe,
even with the Government's explanation of the circumstances
under which the category is seriously jeopardizing an
investigation or unduly delaying a trial, clearly indicates it
has become sort of a catch-all. You put it in along with those
others in case the others do not----
Mr. Lungren. But you are raising that as a concern. You are
not saying we need to----
Mr. Barr. I think--I believe that, in order to be
consistent with sound constitutional principles, the current
category five needs to be removed. I would propose replacing it
with one that is more specifically tailored to national
security concerns.
Mr. Lungren. Okay.
Mr. Rosenberg, is the Candyman case relevant to this
discussion at all?
Mr. Rosenberg. I believe it is. You are referring to an
investigation in which we had notice that a car I believe
bearing some 30,000 ecstasy tablets was going across the
Canadian border. It was stopped in Buffalo. And, using delayed
notification search authority--meaning probable cause and
reasonable cause for delay--we searched the car, allowed the
investigation to continue, took very dangerous drugs off the
street and, ultimately, rounded up a whole bunch of other drug
conspirators. And we did that under the fifth so-called catch-
all--a phrase that I reject--exception that you find in section
2705.
In other words, had we had to take that whole case down
there and then in Buffalo, okay, we would have still succeeded
in removing those ecstasy tablets from the street, but we would
not have been able to follow the trail of that investigation to
other conspirators.
Mr. Lungren. Was that in part because you did not know the
extent of where the investigation would take you at that point
in time, and that is why the fifth category was appropriate? I
am trying to figure out why the fifth category is necessary and
under what circumstances.
Mr. Rosenberg. Well, that is exactly right. At the
beginning of an investigation, you often do not know where the
trail will lead. You are surprised many times by the twists and
turns that it takes. And I know that you have a background in
law enforcement. You do not always know who is involved or to
what extent or where they live. And so allowing an
investigation to run, not seriously jeopardizing it, enables us
to learn the extent of the conspiracy and, in this case, to get
other drugs and other conspirators off the street.
Mr. Coble. Thank you. The gentleman's time has expired.
The gentleman from Massachusetts.
Mr. Delahunt. I would frame it in larger terms. I think,
Congressman Barr, I think you are absolutely correct in terms
of I do not think there is anybody that wants to endanger
national security, and I do not think we will, because I think
that we have that as a priority.
Yet, at the same time, we have concerns given our history,
given this natural inclination to distrust Government. That is
why a lot of folks ended up here on this continent. But I would
suggest that there is a crisis of confidence in the justice
system. You know, Ms. MacDonald describes it as a campaign of
misinformation, and in part, it could very well be. But it is
this whole issue of secrecy and transparency and need for
accountability and, again, not just to Congress, but to the
American people. And I know that is difficult to balance. I am
thinking beyond the PATRIOT Act. And I would address this to
the U.S. Attorney.
We have a case in my congressional district in Quincy,
Massachusetts, the Ptech case, where a firm was subject to a
lawful search, and records were seized. The U.S. Attorney
issued a statement saying there is an ongoing investigation.
There was a lot of publicity surrounding the search itself, not
as a result of anything that the U.S. Attorney's Office was
responsible for, but for other reasons. People are wondering,
what happened? That search occurred, was it some 2.5 years ago
now? I think we have got to communicate with the American
public that after an event like that occurs and we hear nothing
anymore, there has to be some sort of an accounting if we are
going to restore confidence in the system itself.
Mike, would you have any comments about the Ptech case?
Mr. Sullivan. Well, I certainly appreciate your concerns,
Mr. Delahunt. And this is a case that is 2.5 years old. And,
unfortunately, the fact that this matter was under
investigation did somehow get leaked to the media. And this is
an instance, quite candidly, where I think the investigation
and the company would have benefited by far less public
scrutiny during the early stages. We took great pains to notify
them of our authority to conduct a search warrant and took
great pains to schedule the search warrant. We were not
concerned that the documents at that point in time somehow
could be secreted away, to do it late at night. Unfortunately,
the fact that the search warrant was going to be executed was
leaked. And that is how the media and the public ended up
getting information regarding Ptech. I only made a public
statement after it became public information to reassure the
public that there was no reason for public fear at that point
in time because of the nature of the investigation.
But I do agree that, once a matter has become public, it is
in the interest of the public to communicate when that matter
has been resolved. Unfortunately, some of these cases do take
years to reach final resolution.
Mr. Delahunt. Well, again, and I respect your actions in
the case. But it is 2.5 years at this point in time. Do you
need any kind of authority to make a public statement
indicating that this investigation has concluded--and I do not
want to use the term exonerate--but concluded and there is no
further action? I mean, I think we owe this to the 50-some odd
employees who lost their jobs as a result of the publicity
surrounding this particular case and give them, if you will,
their reputations back. That, again, I am not in any way
suggesting that the company's demise and the tarnished
reputations was a result of your actions, but it occurred. And
we have got to let the public know at some point in time
whether there is anything there, or if there is not, remove the
cloud. Do you need any kind of further authorization? Do you
have the authority now to do it internally? Because I think it
is very important. I use this just as an example, but I am sure
that this example could be replicated all over the country in
terms of communicating to the people. It goes to the issue of
transparency and accountability.
Mr. Sullivan. I believe the U.S. Attorney's Offices across
the country have the unilateral authority to make those public
statements at the point in time where they feel confident that
they can make those public statements.
Mr. Delahunt. Well, again, this goes to 2.5 years. I do not
want to focus in on a particular case, but 2.5 years, it goes
to the issue I think that you heard caused Mr. Scott concern
about indefiniteness. There comes a point in time when the
Government at a moment in time has to fish or cut bait.
Mr. Rosenberg, you are shaking your head. I want to know
why you are shaking your head.
Mr. Rosenberg. I am shaking my head, yes, because I think
it is a fair point. You mentioned earlier that distrust is
healthy, Congressman. I agree with you; skepticism is healthy.
And one of the ways in which the Government oversees what we do
is both through the judges that review and sign or reject our
warrants and through hearings like this where you ask hard
questions and, hopefully, we give fathomable answers.
Mr. Delahunt. But if I can indulge an additional minute,
Mr. Chairman.
But in the end, the American people are going to be the
arbiters in terms of the integrity of the system. And when
there is left hanging there clouds, then that erodes. It isn't
just about, if you will, the people that are, if you will, the
victims of improper publicity or leaks, but it is the integrity
of the system. People are saying, what is happening? You know,
whether it be there or--recently I was watching, I don't know,
60 Minutes or something on Sunday, and there is somebody with a
new book out about most of the detainees in Guantanamo happened
to be there at the wrong time at the wrong place. It does not
help America's image abroad, and it certainly erodes the
confidence of the American public in terms of the integrity of
the justice system. They do not make a distinction between
military investigators and the FBI. People do not necessarily
make those kind of distinctions. So it is very important,
because I would suggest, if we are going to have a healthy
democracy, you know, one that we all feel comfortable with, you
know, transparency is important, balanced, obviously, with our
need for secrecy in terms of enhancing our national security.
Mr. Coble. The gentleman's time has expired.
Folks this has been a good hearing. I again apologize to
each and every one of you for my hacking and coughing. I know
it sounded annoying, but I had no control over it. I will waive
my second round of questions.
Let me just say this in summing up: Is the PATRIOT Act a
perfect piece of legislation? No. But I do not think it is as
onerous and unreasonable as some folks believe. But much of
this is subject to interpretation. Many of us on this
Subcommittee disagree from time to time, but we usually
disagree agreeably. And we are going to get to the end of this
row one of these days. And, for your information--I want to
mention this--again, I want to thank you all for being here. In
order to ensure a full record and adequate consideration of
this important issue, the record will be left open for
additional submissions for 7 days. Also, any written questions
from any Member must also be submitted to you all within that
same 7-day timeframe.
This concludes the oversight hearing on the implementation
of the USA PATRIOT Act, sections 201, 202, 213 and 223--strike
that. Not 213, because it does not sunset--201, 202, 223 of the
Act that addresses criminal wiretaps and section 213 of the Act
that addresses delayed notice. Thank you for your cooperation.
The Subcommittee stands adjourned.
[Whereupon, at 11:34 a.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Robert C. Scott, a Representative
in Congress from the State of Virginia, and Ranking Member,
Subcommittee on Crime, Terrorism, and Homeland Security
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Letter from the Honorable William E. Moschella, Assistant Attorney
General, U.S. Department of Justice to the Honorable Arlen Specter
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Report from the Office of the Inspector General entitled ``Report to
Congress on Implementation of Section 1001 of the USA PATRIOT Act,''
March 11, 2005
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Report from the U.S. Department of Justice entitled ``Delayed Notice
Search Warrants: A Vital and Time-Honored Tool for Fighting Crime,''
September 2004
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Letter from the Honorable William E. Moschella, Assistant Attorney
General, U.S. Department of Justice to the Honorable Howard Coble
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Article submitted by Heather Mac Donald, John M. Olin Fellow, The
Manhattan Institute for Policy Research, entitled ``Straight Talk on
Homeland Security,'' City Journal (Summer 2003)
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