the committee will come to order good morning welcome to our witnesses our audience and thank you for being here today will review issues related to reauthorization of provisions of the usa patriot act that will fall within the jurisdiction of the house permanent select committee on intelligence primarily those provisions deal with the foreign intelligence surveillance surveillance act or pfizer and with the sharing of information between intelligence and law enforcement agencies because there's been so much public discussion and debate about the patriot act i hope that today's hearing will serve as a finder that many of its provisions are fundamentally intelligence authorities intended to gather information to counter threats to our national security from acts of terrorism and espionage these provisions are designed to protect the american people i also think that it's important to point out that the house and senate intelligence committees as part of our oversight responsibilities receive detail reporting on how the fires authorities of the patriot act are used in practice although we did not discuss this reporting publicly i want to emphasize that we conduct close and continuing oversight of these many patriot act issues i also want to state for the public record that during our committee's closed sessions there's been strong bipartisan support for renewing  at least parts of the patriot act we will find out for exactly what parts and for the totality as we go through this process today and over the coming weeks in fact we particularly appreciated the opportunity because these issues in depth with director muller as part of the federal bureau of investigations annual budget hearing today's hearing of the tenet discuss what the specific provisions of the patriot act are and what they are not the act provides enhanced but carefully tailored authorities to support intelligence and the terrorism investigations usually targeted against foreign powers and agents of foreign powers the patriot act also defendant of lee breaks down the wall between intelligence and law enforcement agencies to allow them to share information free of artificial stultifies that reduce the nation's ability to thwart acts of terrorism as i believe that we will here today the patriot act actually provides more protections for american citizens than less some of claimed what the patriot act is not either intent or practice is a license for the government to invade the privacy of ordinary citizens or to violate civil liberties the department of justice inspector general reported earlier this year that it had received one thousand nine hundred forty three allegations of abuse of the patriot act none of those complaints were found to have even alleged misconduct by just department employees relating to use of any provision in the patriot act and only twelve of those allegations warranted further investigations for liberal civil liberties issues on related to the patriot act two panels of witnesses today for the hearing our witnesses will be discussing why the page would actually be renewed and what if any modification should be considered for the first panel we welcome the deputy attorney general the united states the on a real g me morning the second panel includes outside experts and i'll introduce them when we when they come forward like to thank all of you for being here and i'd like to recognize our ranking member ms harman for her opening statement thank you mr chairman and welcome to our witnesses i appreciate that mr comey who briefed our committee last week is here again today he will be leaving the justice have a second panel so that we could hear outside commentary on the how well the patriot act has worked i thank you mr chairman for adding a second panel something that did not happen when the senate held hearings on the page couple weeks ago as you pointed out mr chairman most of the committee's work on the foreign intelligence surveillance act will necessarily be behind closed doors but the patriot act a public law i'm hopeful that this public hearing can help foster a thoughtful public dialogue about how to give law enforcement and intelligence officers the powers they truly need to stop terrorists but to do so without compromising our cherished civil liberties the page gave us many vital tools in the fight against terrorism it modernized legal authorities that predated the age of cell phones and the internet i voted for the patriot act because we need stronger more robust authorities against terrorists since it is those terrorists who themselves use electronic communications to raise money and coordinate their operations to harm us in other words as i've often said they're already digital we need to go digital in the fight against them but let's recall the context in which the patriot act was passed the bill came to the floor just seven weeks after september eleventh two thousand and one we were bracing for more attacks the senate was closed because of the anthrax scare we were at war in afghanistan given that atmosphere i think we did a decent job on the patriot act and we inserted sunset clauses to many controversial provisions to enable us to reassess their effectiveness in four years four years have now passed and no one should have expected us at the time seven weeks after september eleventh to strike the perfect balance and we didn't now it is time to do better by clarifying our intent and fine tuning the authorities let me offer three examples first section two fifteen the so called library provision allows the justice to put the apartment with a court order to obtain any records or quote tangible things under this has caused concern that the government would go on secret fishing expeditions for medical records bookstore records or library records something which it has not done but which the law as currently crafted might allow terrorists might use the internet as a public library and out of we have exempting library records totally could create a loophole that terrorists could exploit the issue isn't whether we should go after terrorists internet records of course we should the issue is what standards should we add to the law to make clear that we do not condone fishing expeditions against innocent or lawful activity one change that appeals to me is to require that the records sought under two fifteen pertain to an agent of a foreign power the traditional standard for feis of searches without this requirement section two fifteen is open ended and susceptible to abuse requiring the agent of a foreign power standard would not compromise any investigation of terrorists who are already defined by law as agents of a foreign power second section two zero six allows john doe roving wiretaps under fire where neither the identity nor the location of the target is known i believe we should retain authority for jondo roving wiretaps but we should require the government to ascertain that the target of the surveillance uses the communications device even if we don't know its name before beginning the wiretap this would make pfizer consistent with the title three criminal wiretap standard and avoid avoid generalized surveillance of all people fitting certain ethnic descriptions third section two eighteen allows  search and surveillance whenever foreign intelligence collection is a significant purpose of the investigation it no longer needs to be the primary purpose i think this is a useful provision it helps to eliminate that mythical wall as the chairman mentioned between law enforcement and intelligence but it could easily be because the standard is much lower than the probable cause standard for criminal authorities i would retain this provision but i would require that u s persons i'm just talking about u s persons who were the target of a fight which failed to turn up evidence against them be told after the fact that they were searched after an appropriate amount of time in the lab so that any ongoing investigation is not compromised according to press reports brandon mayfield a muslim american attorney in oregon who was wrongly arrested and imprisoned on suspicion that he was connected to the madrid train bombings was not told that the government conducted secret surveillance on him and his family even though it is now clear that he  person is innocent these are not partisan issues mr chairman seventy one members of this house from both sides of the aisle have co sponsored the say fact which would make many of these narrow fixes to the patriot act i hope our witnesses will comment that terrorists would like nothing more than to take our liberty and expose it as a fraud mr chairman but it is not a fraud it's the most important value we have and i believe that in considering the patriot act the most patriotic act we could as members of congress do would be to keep the vital authorities to go after terrorists members of the committee thank you first for inviting me here today thank you for caring so passionately about these issues and for offering an opportunity for robust discussion of the details of the patriot act and what they mean and why they matter everyone should question government power our country was founded as the students in this room i hope you know by people who had a real problem with government power and worried about government power divided our power restricted our power provided for checks and balances of government power people should question government power they should demand the details about how government is using its power we in government should explain how we're using our power if we can explain ourselves and we're using our tools in an open forum or if appropriate in a classified form if we can't explain we shouldn't be using those tools we shouldn't have those tools that's our duty my worry about the patriot act over the last three and a half years was that we were never going to find the space in american life to actually have a reasoned discussion about the patriot act and those tools where those who had concerns asked the good questions and those in government took the opportunity to  why it matters i saw instead an exchange of bumper stickers that worried me very much and people standing around at barbecues or cocktail parties and someone in the circle says isn't a patriot act awful and everybody nods and then talks about the baseball game that weekend or people in government not wanting to answer fully the questions being asked of them because they were busy doing other things or because of concerns about giving too much information i worried you wouldn't find that space thanks to congress and  this committee in particular we have found that space despite my skepticism over the last couple of months we have had dozens of meetings of discuss of hearings of witnesses in open forums as much as possible and in closed forums to talk about some of the details of how we use our classified tools and i think we have found in that space the opportunity for the questions to be asked the details to be demanded and for them to be supplied i think we have seen in that space that the patriot act is smart it's ordinary it's reasonable it's constitutional and we've had a robust discussion that has given to me a great part in what oversight is by this body and how responsible our government on the executive branch side can be in responding so thank you for that we have some have found the space to talk about things like delayed notice search warrants so called sneak and peek search warrants something that i as a career federal prosecutor and assistant u s attorney in new york then in virginia and u s attorney new york and now deputy attorney general a term with which i'm unfamiliar sneak and peek it's not a term that we in law enforcement use that maybe because it makes it sound like we're going through your sock drawer while you're taking a nap we call it delayed notice search warrants we have found the space to explain what that is to folks an example that we've given quite often and i think people have heard is we used it recently to disrupt a huge ecstasy trafficking ring that was bringing in huge amounts of pills from canada to the united states and selling them to our kids we were on the verge of locking up about one hundred seventy of these characters for drug trafficking and we learned that a big load was coming across the canadian border into upstate new york and we had a difficult choice to make whether to seize the drugs and alert one hundred seventy that we were on to them or let these drugs walk to the kids of the united states we've explained in the last couple of months we didn't have to make that choice because we had delayed notice search warrants in the patriot act in black letter law something that had existed for decades before then and we use that provision went to a federal judge and got permission based on a show probable cause to seize those drugs and not tell the drug dealer that we had taken them so the da did just that when this drug courier stopped to get a bite to eat they stole his car didn't steal it they took it pursuant to a search warrant and sprinkled broken glass in the parking lot so that he thought it was stolen and we found in a false gas tank some thirty thousand tablets of ecstasy and we didn't tell him for about three weeks when we locked him and the other hundred seventy up and made an enormous impact on the ecstasy market in the united states dropping the bottom out of the price and supply of ecstasy that's a delayed notice search i worried that people would never understand that i think folks now do understand why it matters so much to us we believe we in the executive branch believe the bottom line on the patriot is as i said the patriot act it's smart it's ordinary it's constitutional it makes sense and it's chock full of oversight my life has involved federal judges federal judges are all through the patriot act in the flies a process in delayed notice search warrants in just about everything we want to do involving the patriot act involves judicial oversight and also congressional oversight we spend a lot of time as we should sending reports to this committee to your senate counterpart to house  judiciary to explain ourselves as we should and we spend a lot of time answering to our inspector general who was given a mandate by section one thousand and one of the patriot act to scrub us on a regular basis and to answer respond to investigate all complaints about the patriot act that he receives the patriot act should be renewed oversight should continue the question should continue to be asked we should continue to explain ourselves but these tools are too smart too important to our national security not to have them renewed and i look forward to discussing why they matter so much so much to us with this committee thank you mr chairman thank you very much mr la hood thank you thank you for your service or we appreciate  all of your service particularly when you were a u s attorney and certainly in your work now can we had a very in lightning discussion with the director of the f b i that was not public in  can you on the record and for the public tell us the two or three things and maybe i'm sure there's more than two or three but tell us two or three things where the patriot act has really benefited law enforcement in terms of their ability to keep the country safe and to keep communities safe and then if you would also tell the public and on the record ar recommending any major reforms or changes to the patriot act as a result of abuses that may have taken place thank you sir the patriot did something that was groundbreaking earthshattering breathtaking from my world that we don't talk about an awful lot but i believe congresswoman harman alluded to it destroyed once and for all the wall which was a combination of law and that separated criminal investigators from intelligence avesta gaiters chasing terrorists before the patriot act we had a situation where my good friend pat fitzgerald the u s attorney now in chicago was the leading qaeda expert on the criminal side in the justice department and he was leading a group of agents investigating some of bin laden and al qaida in the one nine hundred ninety s in the process of doing that work he was talking to cops talking to foreign witnesses civilian witnesses talking to foreign intelligence officers even talking to al qaeda members who had come in from the dark side and become cooperators there was only one group that he couldn't talk to and that was group of f b i agents following the exact same targets some of bin laden and al qaida from the intelligence side across the street conducting surveillance talking to witnesses getting five authorities to intercept communications or do searches so we had two of our best brains focused on our worst enemy and they couldn't speak to each other with the patriot act accomplished was the destruction of that wall that are grown up over the years and allowed those two groups to talk to each other that has made us safe in ways that really that my words can't capture that has changed the culture of law enforcement and intelligence in the united states and allowed us as we did one example is as recently as last year we were tracking an al qaida operat had come into the united states to make sure that our criminal prosecutors were talking to us about what they could do to incapacitate the guy while our intelligence operators were gathering information on him and when the moment was right we could turn to our criminal prosecutors and say go incapacitate him lock him up and that was done that changed our world and i don't think anybody who is focused on what this provision means wants to go back on it because it has made us immeasurably safer we i don't believe that that we have advocated any changes as a response to abuses i don't believe there have been abuses of the patriot act and we have an inspector general glenn fine who is as good an aggressive as they come and he hasn't found any either what he's found instead is that folks write in and call in about all manner of things that have nothing to do with the patriot act because as everyone here knows the patriot act has become a bit of a vessel into which people pour concerns about a whole lot of stuff that's not in the patriot act we have suggested through the attorney general's testimony that we respond to some of the concerns that ms harman raised with respect to the so called library provision which i would love to talk about later because i've never figured out why it's called the libr provision but to address concerns about whether people can challenge in court in order to produce records that they get under that provision consult with a lawyer and address concerns that there's no expressed standard for obtaining these documents a court order to obtain documents in that section so as eterne general said we have no problem and would support putting an express relevant standard there and making it explicit that folks who have concerns about an order they receive can consult a lawyer and challenge it in court we have a couple other minor things that we think would improve the patriot act but again not in response to abuses our response to the concerns about abuses is to talk about how we're using the tools and why we think folks with good intentions were not question anybody's motives but that they don't quite understand either how we're using the tools or how these tools compare to what criminal investigators do all day long in the united states well the reason it's called the library provision is because the librarians got every member of congress all stirred up last year when they had descended on capitol hill and made it appear that there was going to be an ability for an f b i agent to go into the library look into computers without say so or sign off of a federal judge or without a and frankly during our discussion with the f b i director he said that isn't the way it works and he said he didn't know of any instance where the f b i went into a library anywhere in the country to do that  and i think it will be an issue and mr chairman if you if i could just ask him to talk about that for a minute elaborate on what i've just said because the director made it very clear  they don't want to go into libraries of they don't want to they haven't but the provision is there in the event they have to and if you could just discuss that for a minute my time is up thank you very much thank you sir the alan journalist hope a friendly way to try to win the pulitzer by examining how it came to be associated with libraries because to a prosecutor investigator we see books records documents we don't think libraries we think credit card records insurance records travel records things of that sort but i think all of us start i hope from the premise that we don't want libraries as congresswoman harman said to be any kind of sanctuary for criminal behavior we know unfortunately pedophiles go into our libraries  using libraries so none of us want to have a place where terrorists or criminals feel safe to go so the question then should be what's reasonable and i think that the section two fifteen the so called life or a provision is a reasonable approach to obtaining records that would be a credit card agency or a library conceivably although it's never happened that relate to an international terrorism investigation i think a lot of the concern about this provision rests on a misunderstanding about how we pain records in the criminal world of investigations with a grand jury subpoena this provision that folks are or so concerned about offers more oversight from a court and from congress infinitely more in my experience than similar process to obtain records on the criminal side an f b i agent has to go to a federal judge appointed by the president confirmed by the senate who sits on the foreign intelligence surveillance court and make a written application where he certifies that the records are sought for international terrorism investigation and get a written court order from a federal judge to get those records we then report to congress how we've used it every six months what we've used it for whether the request was denied or granted on the  congress no written application and obtains those because the relevant to a criminal investigation so i think if folks really bore down what they'll see is actually made it harder for people tracking the most dangerous of our enemies to obtain the records that could be obtained by a criminal investigator much much more easily with much less oversight thank you mr chairman mr comey i appreciate your opening remarks especially your very positive comments about the importance of oversight we have as i hope you know established an oversight subcommittee in this committee and it is vigorous and at work we have excellent members an excellent applaud you for some of the things you just said about section two fifteen as you know in my opening comments i've pointed out that you need a court order section two fifteen i pointed out that according to the justice department it has not been used  library records i also said that if we if we would repeal to fifteen totally we would create a loophole which the terrorists could exploit so i do understand the terrorists and other bad guys can go to libraries and use internet sites but i said and i think i just heard you say reasonable additional limits on it to make clear to the public that we will not use it for fishing  expeditions might be a good idea mention too and i would like you to perhaps explain them in more detail i have the curse or the blessing to be a lawyer so i was listening up you said there will be an express relevant standard and you also said that there would different one i think the search relates to an international terrorist investigation could you explain where you're going with this and the second deal is on consulting with a lawyer could you give us some clarity on  what this means does the lawyer have to have a security clearance how could a lawyer challenge the surge through a court only through the federal courts what would be the process here and i would just point out that the person we're talking about is not the terrorist we're talking about the person who controls the records the librarian or the the the the bank director or wherever you might be going so nobody is in favor of giving terrorists special powers here where talking about law abiding american citizens and the public having some assurance that to fifteen is really intended to be what i think it's intended to be which is an additional tool only to go after outas roommate i know what i would do if i knew a guy live in the hammock i would want his travel records his bank records his phone records and if i found out that he'd gone to las vegas for example i would want those hotel records i would want the video of every place he'd been inside that casino i want to know where it is meals all that sort of thing as currently structured the f b i could use to fifteen to get muhammad out as roommates phone records travel records and the records of his hotel in las vegas what i worry about is that if you added a the target as an agent of a foreign power requirement or some have proposed something higher like probable cause we can't use to fifteen for that because i don't know anything about this guy except that he was living with muhammad at and but i know that i want to know but it wouldn't otto be an agent of foreign power and a fellow living with an agent of a foreign power wouldn't that qualify if we had a definition of related to an agent of the foreign power perhaps that might if it's said that the records relate to an investigation of someone who is a target of a foreign power i don't know that that would be any different from what we have now which is sought for an international terrorism investigation because we investigate people and so currently we are investigating someone we believe to be an agent of a foreign power what i worry about is anything that would that would require or limit the ability investigate people around the bad guy someone we saw having breakfast with some we know to be a terrorist we need to know what's up with that guy and if we can't use to fifteen i tell you what's going to happen we're going to find out because we think it's our duty agents will try and find a way to go to criminal process and get a grand jury subpoena which is i've said to folks out of government question two fifteen the factor that ironically would be to drive the f b i from the world involves judicial oversight and congressional oversight into the grand jury world which has none of that and so what i would prefer to do is just address the concerns of two fifteen that you highlighted let people talk to a lawyer have a procedure for being able to go to the pfizer court i think that makes sense because they would have issued the process and challenge it perhaps as you could a grand jury subpoena for being overbroad  duly burdensome things like that i haven't thought it out carefully enough but to allow people meaningful access to the judge that issued it to challenge it well my time is expired mr chairman i just want to comment on the response i think we're moving in the right direction certainly the challenge piece when it is fleshed out will be very very positive progress on the express relevant standard that you're those are your words mr call me i think we need to work on this a little bit more sought for is a very vague term i think something that would be tighter and cover the circle you just described mohamed atta and his contact of course should be covered under the provision but what we need to do in my view is the right words to give clarity to the intent which is this is not a fishing expedition provision this is a tightly worded provision requiring a court order including the ability to challenge that enables us to use modern tools to find the bad guys who are using digital means to evade us thank you m this is a very difficult issue because i know that in discussions that we've had with our european counterparts the issue that they are increasingly becoming concerned about is the radicalization of individuals within their society who are second and third generation native in that country and are becoming radicalized and the example that they've used in the netherlands is the individual who killed who murdered van gogh or is alleged to have murdered van gogh and  also individuals or groups that may have threatened a number of their members of parliament which is requiring twenty four hour surveillance and protection so i think you'd be hard under certain circumstances  define that individual or those individuals who may be shared some of the same objectives as terrorists but as identifying them as terror agents of foreign powers so you know we look forward to it to working through this process with you ms davis you mr chairman i'm not a lawyer and i know one of the biggest issues that i've heard from my district has been on the so called library section that we've been discussing and i guess i just want to make sure i understand it from what i heard from you with the patriot act you can go in and you go before the judge and get permission to go in and check the records there's also congressional oversight every six months but if i heard you right you have this authority in a criminal investigation right and you don't have to go before a judge and you don't have congressional oversight so explain to me why there's a concern me out i guess i'm having trouble understanding what  freedoms have we had taken away by the library clause in the patriot act that already weren't taken away if we were in a criminal investigation i mean i guess i'm confused on that and thank you i share the confusion and i think it's just a question of folks not understanding what goes on hundreds of times a day in our criminal process federal grand jury subpoenas issued by an assistant u s attorney acting on behalf of the grand jury issuing them relevance standard they don't require approval by a judge they don't obviously require in fact rule six grand jury secrecy for hiv it's disclosure in the form of oversight what to fifteen was did was give intelligence investigators and counterterrorism investigators the ability to do something similar to get documents but made it harder as you pointed out you had to go to a judge at a make a written application the one thing the two fifteen offered that folks often focus on is every court order carries with it a prohibition on disclosure so a credit card company that gets a two fifteen order for documents issued by the pfizer court in connection with an intelligence or international terrorism investigation can't tell anyone that they received it can't tell the target for example or as i've heard said many times a library couldn't tell its patron that is records were were obtained pursuant to this court order could they in a criminal investigation maybe thousands of times a month we should grand jury subpoenas to financial institutions to investigate fraud to investigate all manner of things all of those carry with them a statutory ban on disclosure so if a bank receives a federal grand jury subpoena in a bank fraud investigation they can't tell anyone that they got it that surprises a lot of people but it's been the law for over a decade and the reason i explain it to people is so they see this is a part of our of the american way of investigating good reasons for it so that innocent people don't get smeared and so the bad guys don't get away in the counterintelligence and counterterrorism arena it's hard to imagine higher stakes in terms of the bad guys getting away or frankly concerns about smearing people when i have said to librarians who've asked me about this i've said look you care about civil liberties obviously you do and that's why you're asking these good questions if you do then you wouldn't want the f b i telling anyone who they're investigating or why you would want them walking into a library saying we're checking out jim comi we got anonymous letter that he's a terrorist you keep that to yourself but we need to we've got a court order to get these records you wouldn't want us doing that so by definition you won't have the information about the investigation so why is it you should make the call about whether to tip off the target what people i think will hope will take some comfort in is if we add up and the opportunity to challenge in court to go to a judge and say this is wrong that that will give them some comfort that they're not forever having their mouths sealed but secrecy and investigations is critical in the criminal context it's as critical in the intelligence context in counterterrorism we get many many e mails and calls where neighbors  spurned lovers identify people as would be terrorists we have to check those out i mean that's our job but if we check them out no way we're sort of rumbling around like a big elephant and tell the whole world that the f b i is conducting an investigation jim comi i think if people tease that out they don't want that to happen so i think if they people understand how we do criminal investigations they will see that this provision the so called library provision carries with it more oversight than anybody gets on the criminal side and you're talking about adding the challenge to provision is that challenge available on the criminal investigation yes someone who receives a federal grand jury subpoena can challenge it as over overly broad and duly burdensome and that that happens from time to time and so what we would do it i think the idea the attorney general was talking about was taking that sort of ability to move to quash as the lawyers call it and sticking that in the two fifteen provision thank good morning everyone first of all mr chairman thank you for holding this public hearing so many of our meetings are not public by necessity but i think that this goes a long way  o informing to educating the american people who with legitimacy have raised questions i think all of our constituents have raised some kind of questions or many as may be the case about the patriot act so thank you for holding this hearing i think it's again very important and i think that it will go a long way with the american public thank you for being here and thank you for your public service i'd like to raise a broad issue that has been attached to the patriot act but i think many many americans have found really disturbing after september eleventh the government rounded up illegal immigrants and put hundreds with no ties to terrorism behind bars for months often in deplorable conditions the justice department's own inspector general found that the government made little attempt to distinguish people with ties to terrorism from those without in conducting this round up the administration gave itself far more power than the patriot act does under the act aliens are to be held no more than seven days before immigration or criminal charges are brought this runs contrary to what the american people believe is a is a justice system and if there's  anything in emerging democracies that is you know measured very very carefully is how a justice system and courts and laws are actually built the architecture of that so my question to you so what is the authority in your view under the patriot act that allows what i described i know that the sections are four eleven and four twelve i believe but i'd like  set for the record what is contained in the patriot act that that allows what i described which is horrific i don't know one person whether they're for the patriot act whether they're left right center whatever that that says that this is really acceptable that it's a wonderful standard that the american people uphold it just does not speak to our values that is a fair criticism that is not the patriot act that was a what i believe a legitimate investigative approach that when iraq and that the justice department did not handle correctly our inspector general has found and i agree with him that it was legitimate for f b i agents conducting the nine eleven investigation if they came across a roommate of one of the hijackers or someone they just had a really bad feeling about and found out that they were violating the immigration laws they were out of status to take them into custody i don't think anyone and i'm not talking about just taking people into custody that are suspects that's the work of law enforcement but the abuses that i  described i just want i wanted you for the record to set down if there's anything that you find defensible about that to state for the record what the patriot act contains in order for the you know for government to be doing that has it completely stopped has everyone that was detained either been deported or charges brought against them as i was saying i think that the initial arrests of people who were violating the immigration laws was appropriate where it became inappropriate  was our inspector general found when they were and i think this is what you're alluding to when people were held without being appropriately cleared they were held until cleared they were held far too long and some people were mistreated physically mistreated at detention facilities particularly in brooklyn new york no excuse for that unacceptable your sentiments are exactly mine not what the american people want done the first step i think the american people want done the rest is totally or anything in the patriot act that needs to be repaired in your view so that that abuse doesn't take place now that that abuse both the appropriate part and the part that was wholly inappropriate had nothing to do with the patriot act those were arrests of people who were out of status violating the immigration laws i'm no expert in immigration and so i will now stray beyond my expertise but the patriot act doesn't deal with that page it has some very specific was it an interpretation of the patriot act that allowed that to happen no in fact most of those arrests went on before the patriot act was  d that the real intense period was the two weeks as it should have been right after nine eleven the patriot act wasn't even exist and are all those detainees now either deported or were charged i don't know the answer to that i assume that they are i don't know whether any of them are still tied up in litigation seeking asylum for example that often takes a long time but charged or deported but not just being detained on quite confident that none of the people that you're talking about are still in a state of limbo they were each of their cases it was examined by or inspector general as i said what he found was not pretty for the way that they had been handled was it thank you mr chairman ms wilson thank you mr chairman mr comey thank you for being here i think some of the the answers to questions that we've been hearing from you are very helpful in clearing up misconceptions about about this act and there are a couple of things i wanted to ask you about the first one is actually a follow up to what my colleague from california you just mentioned she mentioned section four twelve of the patriot act and as you've just clarified that was not the statute that where there was a where there was a problem with detentions has section for twelve ever been used by the attorney general no if i'm remembering the numbers i'm sorry for twelve i believe is the provision that allows the attorney general to order the detention of someone as a specially designated terrorist  that has never been used so we've never even had a case where where the statute is but my understanding is it's not been necessary because the government has been able to convince immigration judges that someone should be detained as a danger to the united states without the attorney general having to invoke this extraordinary authority which believe me i don't want i'm not advocating taking it off the books when you need it you would really need it but it is it has not been necessary so far thank goodness i ask you a question about you were talking about additional provisions on section two fifteen the so called library provision or business records and you talked about all of the the checks and balances that are in place with respect to potential terrorists in section two fifteen but also adding a relevant standard some other things why would we want to give more protection to potential terrorists than we give to members of the mob under criminal statute why we want to tighten this up i don't understand that well i don't know that we we want to offer them more protection of them not coming out for more protection for them than for people in the mob but i think we have always understood section two fifteen to have a relevant standard in it i mean we don't want the authorities see things that aren't relevant i mean we've we're not spending the tax dollars that way so we don't think that changes the way we approach it what we think it does is offers folks comfort that that is the standard to the extent they're worried that we're out there doing things with always just for reassurance to people because of all the misconception is that i think that's a fair way to say it and to make it consistent as we've always understood it to be with our practice in seeking documents under grand jury authority the ability to challenge the receipt of a two fifteen order i don't know that i see that as offering more protection for terrorists bad guys or spies i think it offers legitimate businesses who are receiving these the opportunity if for some reason they think it's overbroad when duly burdensome to come to court to raise that concern i don't think that will have any effect on our ability to do our job is it are there advantages to having section two authority with the flies to court over going to a grand jury or or is this something that you know what's the path of least resistance if you're an f b i agent trying to investigate a bad guy the path of least resistance is most likely to go the criminal route if you can and if a federal prosecutor is available to you there may be cases where there isn't a particular criminal hook as we say in the business where for example you're  investigating an agent of a foreign power not in a terrorist environment so it's it may be it's an espionage kind of thing and and it's it's not in a position yet to go to a criminal prosecutor and say there's a predicate here for potential criminal wrongdoing that's one circumstance the other is that it's it's a circumstance where because of time pressures or the location of a particular effort you don't have the opportunity to go to a federal federal prosecutor and get them to open a file and get a grand jury subpoena cut i should make it sound so easy to get a grand jury subpoena there are plenty of places where there's not a grand jury sitting i tend to come from the big districts i was always a grand jury sitting but there are plenty of place in the country where the grand juries only come once a month so it may be harder to get a subpoena in that environment  ask you about the so called sneak and peek provisions section two thirteen can you talk a little bit about how how warrants like that are used on the criminal side and as i think i think initially this was something  e a surprise to people i wonder if you could give us some examples of where that is long been used in an in the criminal system and why you think that it's helpful to apply that to potential terrorists yes i'd love to this is some i feel very passionately about because this is a tool that was created by judges republican judges democratic judges independent judges who concluded that it was reasonable under the fourth amendment which is the key standard under the fourth amendment in certain unusual circumstances to delay telling someone that a search was conducted it's never the case that you're never telling them it's just for certain emergency circumstances delaying that notice we don't do it much we've done it since before i was born because judges created this ability to delay notice we do it we've calculated now in about one out of every five hundred cases in the united states i've done it typically in cases where lives are in jeopardy i did it in a drug case in richmond virginia where we had a group of really bad crack dealers moving in from new york and we had an informant who came to us reliable track record who said they just put five kilos of cocaine in an apartment in the west end of richmond and we had a difficult choice to make without the late notice because we had to choose between going getting the five close and heating up all these bad guys and jeopardizing the informant's life or letting five kilos of cocaine walk onto the streets of richmond instead because the force circuit had long ago created delayed notice search warrants we went to a federal judge laid out in much more eloquent fashion what i just said and made a written showing of probable cause based on a sworn d e i affidavit the judge then gave us permission written order to conduct  search in that apartment for the drugs and to make it look like a burglary so the da went there they entered the apartment when the bad guys weren't there they found the five kilos they took those they took the t v the stereo and in a sort of a flare of theatrical they took three beers and poured them down the sink and set them around then they broke the window from the outside i'm pleased to report in and then they left and the two leaders of the drug organization came and called the cops and so we sent a marked unit briefed officer from the henrico county police department and took a report from these two knuckleheads about that their t v was stolen that their stereo was stolen and that their beard been drawn by these burglars and nothing else was taken officer no nothing else was taken can i see your license can i see your license full identifiers on these characters it's your apartment yes ok we'll investigate and i don't remember it was forty five days or sixty days but after a brief period of time we arrested not only these two guys but their whole organization unsealed the search warrant told them we had been there offered to return everything except the drugs and nobody wanted anything back and then the da paid to fix the window that's a delayed notice search judge created it because as i hope my story demonstrates we gotta have that authority and agents all over this country have used it for years and years what the patriot act did was take that judicially created tool and put it in black letter law so the whole country has the same standard and it's all laid out there what a judge has to find we can't lose that tool we just can't and sometimes people say i mean well geez you're using it that's not a terrorism case you just described my response is absolutely not the patriot act was primarily a counterterrorism tool but your federal prosecutors and f b i agents and the agents are out there in the field when they're going through the code book looking for something to keep people safe they don't see so much as patriot act do not use if the lives only involve drug cases they're using these  tools where it makes sense and i think it's incumbent upon us if we're going to debate it not to do a distraction play and say oh that's not a terrorism use absolutely let's discuss whether that use makes sense if people don't think it makes sense then they should advocate its repeal i think it makes tremendous sense and saves lives mr rupert berger i think first i want to thank you for your testimony and i'm sure sorry we're going to lose your professionalism wherever you're going to go but first i think one of the issues that i think just really important in dealing with the patriot act is the sunset provision the the fact that we had to move quickly right after nine eleven was it was something that we had to do and that's why we have some of the issues that we're debating today but i think that the sunset provision every year every two years that would allow congress to look to see whether there are abuses is that check and balance that we would seek what's your opinion about having a sunset on the patriot act on a every two year basis my concern about  congressman is that i think that we if we have vigorous oversight if we continue to report every six months of were hauled up here and grilled and explain in a classified setting on classified setting what do you guys doing and how is it working i don't think we need sunsets if we have that my concern about additional sunsets is i mention two eighteen which changed my world by allowing criminal and intelligence to communicate if we put a sort of timer on that kitchen timer that's going to expire that will impede the cultural change that i see going on now same with some of these other tools if if agents and prosecutors don't think these things are permanent they're going to hesitate to embrace especially some of the cultural changes that we see and i'm not saying it's an unreasonable thing to say i just don't think it's necessary and i don't think that it's any substitute for the kind of oversight that this committee does i think all committees in congress should have that kind of oversight find out what we're doing ask those questions but then i worry that we will chill the use of some of these tools if we say to f b i agents look you can use them but that might go away in two years and you might get your what isn't this a mechanism to shake the balance there's no question that we need to protect our national security and our citizens and that we need to be aggressive and give the give the tools but it's the balance that we're talking about and i want to point out because i think it's important we look at examples now and i think the justice department inspector general i believe has received seven thousand complaints of civil rights violations by federal officials but only one of the best a geisha and pertains to the f b i as usual the patriot act is that correct yes that's astonishing to me that that would be the only one now the of the complaints received from october two thousand and one to december two thousand and four they expect they expect or general said nearly four thousand did not warrant investigation and that more than two thousand complaints were against agencies outside the justice department and fewer fell fewer than one thousand within the justice department here in this jurisdiction but we're mostly managerial now that all the issues there was only one complaint that had a basis to proceed could you explain that in my understanding is that and before i get to the want to think the one case is the i think that's a function and i want to get to that case brenda mayfield and i'll wait i'll just say generally i think that demonstrates what i  hope people are realizing through the kind of discussion we're having here the patriot act is has become this vessel into which people pour concerns about things unrelated to it the patriot act is a bunch of fairly small stuff upgrading for the digital age giving tools that we could use on drug dealers who switched cell phones to people chasing spies and terrorists a whole bunch of stuff like that a couple of huge things like well one in particular the breaking down of the wall but it's it is very smart very ordinary and and i'm so glad that he's reporting and following up so people see that there may be lots of concerns out there in the country but there misplaced if they're focused on this piece of legislation and get well let's get to brandon mayfield and the muslim american community are very concerned about the page of the government with numerous groups and they feel that because of the radical hobby isn't that we all have to be concerned about that they are put in the same category and which is not the case there are muslim americans in fact i think it's important for us as a diversion from where we are that muslim americans become more aggressive and send the word out that islam is not about blowing people up i think that's extremely important but in the brandon mayfield situation this was a muslim american from an attorney from oregon  d he was wrongly arrested as the facts of the term and he was not told that the government had surveilled here or his family now i'm interested to know what happened and what went wrong in that case so that we can evaluate what went wrong to see whether we do need to tweak this patriot act to make sure that we balance of civil liberties versus giving that the tools to the to the investigators and prosecutors and the f b i would you please explain that case as a my congressman and our inspector general is conducting investigation right now of how the f b i conducted itself in that investigation particularly focusing on how they came to misidentify this guy's fingerprint and to say it was a fingerprint found on a bag in the bombers car parked at a at a spanish train station and then and then separately were also look and how the our prosecutors conducted themselves i'm the one that i'm more interested in how they conducted themselves in their reliance on the patriot act so that we can make sure that we try to protect from those abuses and sometimes we can't protect abuses of we're trying to stop a terrorist attack so we understand that also and i feel i'm never one to jump the gun on any investigation but i feel quite confident that this had nothing to do with the patriot act i know this case pretty well and don't know of any authorities from the patriot act that were used in this investigation i think in in the sense that the patriot act was the most current definition of the standards to be used in a pfizer search for example that it could be said that that the patriot act was used but in no meaningful sense i think at the end of the day this is going to be moved from the column you know it's now one in seven thousand i think it's going to be zero and seven thousand and one on the ledger of our inspector general i i don't think that there may be there may have been screw ups there but i don't think they were patriotic related screw other things relevancy standard and i'm glad you said that that's important to have a standard now they're all issues and it was a former prosecutors understand the jargon and the fears we deal with we have probable cause we have we have a guilty beyond a reasonable doubt to a moral certainty we have a lot of issues how would you define relevant standards as it relates to what you would be willing to recommend as a tweak in the patriot act how would i define relevance relevance standard  would that what would the definition of relevant standards be so that the f b i and all those involved would know what that means versus the probable cause versus relevant standard issue i think that what we envision is having two fifteen say that the court must find that the records sought are relevant to an international terrorism investigation i think in the world of prosecutors and agents and cops relevance defines itself which is why i'm stalling while i try and think of how to define relevance but i think it would be would be a basis to proceed a meaningful logical connection between the records sought and the subject of the investigation it's a good to guard against that but how would that compare to probably cause a probable cause is based on the facts and  circumstances that would the facts and circumstances are such that would lead a person of ordinary prudence to believing that certain facts are true i think that's higher than relevance probable cause as you know being a prosecutor is the standard on which we take fourth amendment action we search we arrest we we charge people we started relevance and work to see if there's probable cause and so it will go relevance probable cause beyond a reasonable that will clear and convincing would be the next then beyond a reasonable doubt my concern is if you peg the standard for the initial investigation at probable cause we'll never get started we'll never be able to look at mohammed out his roommate or the guy who had breakfast with a terrorist because we don't have probable cause to believe he's got engaged in terrorism activity we've got a bad feeling and we believe it's responsible to investigate and then investigation will be relevant to the international terrorism case but but p c as we say probable cause would be way too much and we should use it i'm just in a month's time has fired thank you mr chairman the standard issue the lack of or the presence of a law degree in education i don't know where that leads me i dropped out of law school after ten days so i guess i'm in limbo but just point of clarification to what mrs wilson in your conversation pointed toward all other things is i believe i heard your response all other things being equal you have a grand jury available federal prosecution resources are not mind you would probably try to pursue under under the criminal provisions rather than the patriot act that i understand that correctly i think that's the practical reality if for no other reason than than the patriot act made it hard for investigators or national terrorism to use its provisions ok i just want to make sure that that was what you were saying i thought it was pretty clear but it bears repeating i think when you came and  gracious enough to meet with us in closed session you know i had a bit of a conversation about the criticisms levied against the pro patriot act in broad terms but probably more so against this section two thirteen because it's being used for non terrorism purposes my colleagues have brought that up and i think clearly there is a criminal application you have attended to that but let me let me put an idea out for your response negatively or positively what would you be concerned about if anything if there were an amendment to section two thirteen which i don't believe is expiring i don't believe to thirteen with sunset here  we'd have to go in and reopen that provision which may be problematic to you in and of itself but if we were to go in in to add a provision that in those cases where two thirteen is being utilized so called delayed notice that on the criminal investigation utilization there is a time period after two weeks three weeks whatever it may be unless it's there after extended with that be especially difficult provision to  operate under i don't believe will be especially difficult to be frank i don't think it's necessary the way and i should have said this earlier the way to thirteen works is it now vests with the federal judge the discretion to fix a period that's reasonable and the reason i like that is because the federal judge whether he's in southern illinois or los angeles or dallas is closest to the facts and is able to make judgments about what's reasonable we could put in there a provision that some of suggested that makes the prosecutor go back every seven days and really up i just don't know why you would do that and why you would want to sort of ever wrote investment of resources when we already have judicial supervision that and we've reported to congress on what the average delay has been what the minimum what the maximum has been but each one again is supervised by a federal judge who makes that call it wouldn't be the end of the world but we have such scarce resources whatever people think on the f b i side and our federal prosecutors or other agents that i don't know why we would impose that burden on them unless it was a reason something was broken that we need to fix ok thank you for your observations let's switch over to two fifteen one of the criticism there is that the gag order that is imposed and you explain why that is and i think you've explained it very well is at least in some people's minds an ending and that perhaps  or two we ought to put into place a six month duration was the flies according stands that they're after i'd be interested in your reaction to that kind of amendment i and i've heard that and again i don't think that's a crazy thing to say but i think given the nature of the investigations in which we use to fifteen authority spies international terrorists that i think it's more appropriate to strike the balance in favor of having a gag order without duration for a couple reasons first we don't want to let intelligence organizations that may have a continuing presence the united states know that we've gotten their records that the fight with al qaeda for example is going to go on indefinitely and so i don't know that any time period would make sense in which we would allow one to let a credit card company or a hotel clerk call up a person's records were obtained i also worry very much about again smearing innocent people i mean people i think sometimes are shocked when i talk about how important secrecy is to our entire system to protect the innocent i don't know what someone would do with the notice except perhaps cause mischief for the innocent those who receive these poison pen letters and had to investigate i've done criminal wiretaps plenty of them and there's a provision there they have to send an inventory noticed anybody who was intercepted and so i've sent them to dry cleaners and pizza places and or someone who is called to arrange a day care pick up by a mob boss with kids and those people frankly just get completely freaked out and call you and you say well you were intercepted on a wiretap and we can't say more than that we just statute requires us to let you know that so i don't maybe i'm not saying or i have a hard time picturing what the good citizens united states would do with that information especially when they understood what the nature of the investigation was and why the secrecy mattered so much we have struck a balance on the criminal side in favor given the stakes there in favor of notice in all circumstances at some point given the nature of the work on the intel international terrorism side i think the patriot act strikes a reasonable balance thank you thank you mr chairman my time to explore that thank you mr hol many of us here don't practice law we just make law on television and i so i'm trying to understand this from the point of view of ordinary citizens and i think you know throughout history we should remember that throughout history suspects are by definition suspect the prosecutors the investigators and so forth think bad guys are really bad  unless later they discover that they have the wrong guy and i realize that in this day of suicide bombing and using airliners as as explosive weapons the consequences of getting it wrong are pretty serious of failing to identify and intercept potential violent criminals but we've got to remember it's also the consequences are pretty serious of leaving lingering doubts in the minds of millions of americans that gee maybe their hospital records got swept up in an overly broad search or their immigration records got swept up in an overly broad search you know it only takes one or two brandon mayfield cases to send a chilling effect throughout throughout the country that that actually diminishes people's lives it may not be a bloody massacre like an attack but it is you know it's a cost to our to our society and that's why we're so worried about this  even if there are powers that already exist as you have said they may nevertheless need to be examined and i am constantly aware at how how difficult oversight is to accomplish and if we don't have the mechanisms built into the law to make that oversight as easy as possible we're just going to fail to do a lot of things because you know as important as police power and investigative power is it's among the most important powers of government is also the most fearsome so that's why we wrestle with all these  let me just quickly touch on a couple of points in the little time i have left here you had said at one point that to us that the face accord is not really a rubber stamp can you tell me how many how many five applications have been denied in recent years choose the time period that that you like this or last year none were denied i think ninety four and maybe seventy four but there is a ninety four seventy four was substantively modified by the court the year before number modifications was about the same as i recall it and four were rejected outright the and so people say to me we've never had one rejected and my response that is that may seem strange from the outside and to understand the process that we go through before we ever approach the pfizer court it's got to come up be scrub that many many different levels including the f b i director of me personally or the attorney general personally before we go to the court they are federal judges chosen by the chief justice the united states without our input and they they were appointed by all manner of presidents and they are as tough and independent as federal judges are they put us through our paces now should two fifteen challenges go only to face the judges or should any judge be able to to deal with that is there something special about the because the orders for documents are first issued by the pfizer court that's where they started and also they relate to intelligence investigations or international terrorism investigations those are areas of significant subject matter expertise demands the pfizer court has that expertise and experience dealing with those investigations and classified information i don't think it makes sense to go to other federal judges and just trying to imagine a judge in in  new york getting a application to quash process issued by the pfizer court in washington of which he or she is not a member up i'm just not sure that would be workable i think we have eleven judges on the pfizer court they work very hard but i think it's appropriate to put it there thank you mr geraci but we have the opportunity for more questioning and you will have a wonderful opportunity to question the second panel ok may we submit questions for the record absolutely the witness  there's a lot of misunderstanding about these prior to the patriot act could an f b i agent through a legal instrument go to a library and obtain records on a criminal matter yes absolutely grand jury subpoena it was used in a number of cases that that i could cite not a lot but when it really mattered a great example was the unabomber ted kaczynski right who wrote this manifesto taking credit or offering justification for why he maimed and killed innocent people and one of the key pieces of proof in making the case against him as i understand it was the ability to go to libraries and verify that the obscure texts that were referenced in the manifesto had been checked out by him at a library near where he was living key piece of corroboration so for those not investigators non lawyers in the room prior to the patriot act the that the f b i or federal agency took a legal instrument to a library to obtain records to further the case of ted kaczynski without the patriot act which was completely legal under the law absolutely and continues to this day seven apart from what the patriot act is saying the same standard that we use for people who are blowing up citizens in the united states criminally we're going to apply to these basically spies and terrorists today is that correct yes from up from a layman's perspective yes so we there's no this is not some great sweeping change in the way we approach super liberties civil liberties in the united states that's absolutely right that's to me is very very important now how would i if i'm an f b i agent and i have a reasonable belief that this is connected to my investigation what do i have to do how do i get a legal instrument and what is that legal instrument to go into that library if i think a terrorist is on the internet and using that to communicate and further his criminal enterprise you have to get approval at a number of levels within the f b i which you might know better than i but it's a bureaucratic challenge to get supervisory approval and then take it across the street to main justice where i work and go to the office of intelligence policy and review meet with one of the lawyers who specialty is intelligence and dealing with the foreign intelligence surveillance court explain to them what you want why you want to what your factual basis is and they will help you prepare a written certification application to the pfizer court explaining what you're doing why this is relevant to that investigation and then they will accompany you to a judge of the pfizer court to seek a court order from that judge and if the order issues you'll be given that process and you can serve that on the credit card company or th the driver's license bureau or the bank a place in which we've actually used this provision we've never used it to get gun records or health records or even a library records and i hate knocking the library provision but and then you would serve that process and obtain those records for your investigation so this is really about business records and any other records also happens to include library yes and as i said it caught those of us who do this for a living completely by surprise that anybody would associate with libraries never occurred to me and i don't know exactly how even the good librarians were told that this might affect them because it never would have imagined in the world we inhabit so can an f b i agent stop along the road and say you know i've always been suspect of that mike rogers i want to go in and see what he's checked out today walk in show is bad and say i want to see mike rogers records what he's checked out no this library in the last six months now is certainly not he's got a lot of paperwork and federal judges between him and that and they want to make sure i mentioned and then we tell congress every six months what we got that the two fifteen order for what we used it for and we've you know we do a chart and send it to congress every six months secondly can it get an investigator decide that i want to go and look in somebodies garage house bedroom library den on my own look around and not tell anybody about and being compliance with the law as it is under the patriot act today absolutely not no agent of any sort conducting any sort of investigation may enter a dwelling a garage an apartment house without probable cause and the approval of a federal judge that federal judge sits on the foreign intelligence surveillance court if the search is sought to be conducted of a spy or a terrorist that judge sits in a regular criminal united states district court if the search is conducted in a criminal investigation both require and this is a subject of great confusion both require a showing of probable cause to a federal judge who must agree and then issue a court order to allow the entry and search i see my time is up i wish i could follow up on that but i hope you'll go through the process of what an agent must do in order to even get to the court what that document looks like and how much time and investment this is not a simple process for people to go through in order to get even a delayed notice let alone time we can't get into all the things we want to hear but first of all you're familiar the justice powell inviting the supreme court has made an observation i don't think you'd agree with it disagree with it says national security cases often reflect convergence of first and fourth amendment values that are not present in ordinary crime and he talks about the tendency of government even when they have benevolent and there's no bad motives there's sort of you a suspicion anybody who's disputing government policies and that's their nature and they click on to say the price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power you don't have a problem with that you certainly not ok so supposes a pfizer record demand on a church or a college it could be used to obtain a list of books or magazines or even a membership list of a controversial political or religious organization i think that's taken out of the library for a second i think that's a concern that people have right in overseas ashcroft the new york case of last year that could just essential he said look at the national security letter power is thrown out in this instance it was a failure to provide any explicit right of the recipient  of the of the law but tighten up a little bit here so my hearing you say that you agree that we can amend the gag order to ensure that counsel can at least be consulted by the person served and just to make clarification when i talk about consulting terrorists we're talking about the person serve which would be the official at the college of the official at the church something on that basis so do we have some sort of agreement that we ought to there ought to be some right that they can at least consult counsel about the fact they've been served and that maybe this was a turnover list and they have a suspicion that this particular zealous law enforcement person with all the best intentions or whatever might be trying to get a list of a controversial political or religious group i think we do congressman are you talking about two different provisions so if i could  related is right and they are and the court sort of criticizes your office's attempt to separate out too much to fifty we could in theory obtain an order under to fifteen to obtain records from a university and again i  said at the beginning people should question government power for a lot of the reasons you said and government is why we're going to tighten it up here here's where to fifteen is a little different from what you described to get those records to to accomplish the abuse that  you're concerned about we have to have a federal judge involved and then tell congress what we had done every six months where it had on whiskers a stop you ought to do a certified to a judge and then the judge must issue it so that's not a real big hurdle to take and reporting after the to do is have a lot of good so that's a good argument for why we ought to just tighten it up to make sure that we can accomplish what we intended to do it to fifteen and take away the concern of it being too broad let me move on to say you know in a criminal matter support putting in a provision that allows someone to consult an attorney and to challenge a good idea and then the last part of this is just how broad are we going to let the basis for issuance be some of us feel the idea of just using the standard sought for a national security investigation is a little too broad that i you said you have a problem with the phraseology specific inarticulate facts giving reason to believe the records obtained for not obtained for national security service you think that's too tight i don't know congressman my concern about specific article facts is i try to figure out how that would affect a real investigation and i always use mohamed off his roommate you know guy we don't know anything about except he lives there would i be able to check him out using two fifteen if i had to show before i checked him out specific inarticulate facts to believe he's an agent of a foreign power i don't think i'd be able to check the guy out and i think everybody in the room would want me to check him out to get his bank records his phone records and so we prefer that we have an express relevant standard because that's that's the way in this country we investigate on a standard of relevance so we have work to do on that let me talk a little about roving wiretaps so called john doe roving wiretaps is there any feeling a sense from your office that that needs to be tightened up a little bit that it's not enough to just have a broad physical description of somebody and then the ability to just have any phone without designating what phone that might be no because we don't understand it no understand it as best i can tell to to permit a broad physical description that we have to have a human being that we've described as efficient particularity that defies a corking conclude that person is an agent of a foreign power that really doesn't allow broadbrush anybody beyond an actual human being who's name we don't know so that what we have there is a disagreement on interpretation laws some of some people don't read that to be that specific and that's the concern that you would have no problem with language that everybody could agree on that reaches the end that you said that there's a particularity of identification yet there's an ambiguity i understand it to require that you don't know a guy's name but there's a guy and you can establish that there's probably cause to believe he's an agent of a foreign power if there's some language that would simply i agree that most of the misunderstood most of the most of the concern about the patriot act is based on misunderstanding i think there may be an under current of concern based on the fact that the same organization has intelligence and law enforcement responsibilities i mean not soon that's kind of why this wall was erected to begin with and and as a matter of fact one of the witnesses in the panel to follow you basically says you may be talking about the same tools used in law enforcement but in that context they are gathering evidence for a trial and that is a constraint up on what law enforcement officers ma what we heard arguments kind of coming from the other side that this culture of law enforcement restricts too much are gathering information about people who wish to to harm a lot of folks and so as a recent book one of these was circuit court judges talks about you know we ought to have a separate entity that does domestic intelligence and i'd be interested in your thoughts about that  advantages and disadvantages of writing at it let me throw one more out there that the commission has all has basically said that the justice department needs to restructure itself in a way that it kind of addresses some of these issues both practical and civil libertarian so i binged in your thoughts the commission's recommendations which as i understand don't advocate the creation of serve an m i five a separate organization are important and that's something we're studying right now but i very much oppose the notion which i think judge posner has advocated creating a separate m i five for a number of reasons and i think one of the great strengths of the f b i is that it is infused with the culture of the fourth amendment fifth amendment sixth amendment it's people grow up in that environment and i think that is a very healthy thing for intelligence gatherers i worry very much that if we created a separate intelligence service in the united states without that environment that culture and culture really matters that we would regret it thirty years from now i don't think it is a brake on our ability to do our jobs that we think about standards and lawfulness and process in the constitution i think it's i think it actually makes us better i also think that when you're chasing terrorists the notion of separating the people in contact with the street cops making the bank robbery arrests investigating the fraud cases from the people conducting intelligence makes no sense at all counterterrorism is criminal and intelligence and they merge in ways that are difficult to anticipate difficult to describe and if you separate those two forces you'll create separate cultures and th i five i don't think would work in this country i think there's a number of other reasons why it it is good one of them is one of the challenges we face is resisting the duty to warn that degree in a post nine eleven commission environment where folks worry about being held responsible for things there's a tremendous incentive for people to push out warnings about things i think the f b i connection almost symbiotic connection with state local and forces and responders acts as a natural brake on that tendency i think if you created m i five divorced from those folks you would in a way create a domestic warning agency because the m i five would simply be in a position to say the sky is falling you f b i go hold it up i don't think you want to separate the sky holders from those who say the sky is falling i don't think that would be healthy for us so i could talk about this all day but i don't think that makes sense i think some of the ideas that director muller is trying now and perhaps some of the ideas the w b commission has embraced to improve the operations of intelligence in a criminal environment or something we need to really look at but the idea of breaking them apart does not make us safer in my opinion chairman can i take a buy until i get my bearings here i just came from another market well then we'll have to choose between mr boswell mr cramer since mr basel just walked back here on if you're ready is one of the best i've heard i think they will put you on the road and be out there and explain to the american people you know what this is all about but you know going back to the you know the september eleventh the one that he vance everybody's in a high state of nerves yourself and me included all of us and so we've had to take some steps but i think it's timely and i think it's fair and i think it's reasonable that we have this appreciate it and let's name same time it's always fair for this united states of america to question if we ever lose that we lose a lot and we don't do that and so i think it's extremely important to have this hearing and appreciate your presence and i think that much harm and made some very good points remarks and i'm hearing you address some i want to offer to yield some of my time back to her if you want fact that i'm a farmer a soldier or businessman but you know the in fairness to you that are lawyers if i could back up which i can't so i can be pretty loose about this i would go to law school i think it's a very respected back his time thank you here critics often cite that the patriot act has blurred the lines between criminal investigations and foreign intelligence investigations and some would even argue that they brought those the barriers in criminal cases we let it we notify individuals when they're under investigation they have the right to defend themselves we disclose evidence so that they can prepare their defense those who allege the patriot act has gone too far quite often say that there's no noticed any investigations that are going on that records are gathered during investigation and never disclosed unless you go to court and that individuals are investigated without notice and that this evidence can be passed on to others within the government without notice are those all those fair charges have the lines been blurred or removed between or ignored i mean between criminal  and patriot act criminal investigations patriot act investigations no they haven't congressman we are a nation of laws we are an f b i of laws and procedures department of justice of laws and procedures what the patriot act allowed us to do was to have the people not have artificial distinctions between people trying to figure out whether to bring a material support criminal charge against someone from those trying to gather information about those same someones to prevent another terrorist attack to allow the two of them to talk to each other and decide which tools will be better when is the appropriate time to bring the charge to protect the american people take into account our need to collect information that the challenge for those of us who believe this is a good thing is that it's all very complicated and mysterious to a lot of folks because what we do in intelligence gathering is by necessity secret i heard it best described by jim baker who runs our office of intelligence policy and review who said yes there is less disclosure long term on the intelligence gathering side we err in favor of keeping things secret long term whereas on the criminal side we err on the side of giving notice that a lot of electronic surveillance was conducted we bring things into court and he said the reason that we do that is because of the stakes on either side the stakes are unimaginably high on the international terrorism side and we account for the secrecy by protecting u s person information by having rigorous rules about the way we can collect store and disseminate share with others information about u s citizens or permanent residents that we don't have on the criminal side so we strike a balance there are tremendous restrictions on our ability to share among ourselves or disclose to anyone information about a united states person that balance i think is appropriate on the intelligence side we need to protect the information that we collect about u s persons but the same time we need secrecy to make sure that the people we're tracking don't know that we're on to them and so that we don't disclose sources and methods something this committee knows more about than anybody in the government on the criminal side we strike the balance differently and appropriately so i don't think there's been a merger i don't think there's been an inappropriate or a share of standards on either side but i think a lot of the concerns are that when you cross these lines since some of us held secret people don't know when they're in under investigation that that could create a problem i know  in the rules of the house we just recently voted down that we don't even have to notice notify each other when we're in the investigation which i think is a travesty but we allowed that rule change to slip away and on the criminal side congressman if i may all the time we investigate without people knowing they're being investigated i mean i've conducted dozens maybe hundreds of investigations where the person i'm investigating never finds out because we conclude at the end of the day that they didn't do it or they insufficient evidence to bring a  charge i think that's a good thing that's one of the positive things about grand jury secrecy in particular innocent people should not be smeared the guilty should not get away that's why secrecy is important and on the criminal side as well as on the intelligence side there's also this concern on some sections of the patriot act are treated differently than others section two twelve which authorizes disclosure of emails and you know stuff that's electronically passed in section two seventeen which allows real time surveillance  the allegation there is that there's never any judge that gets a report on this that there's no time limits on disclosure that you can continue this for a very long period of time without revealing any of your make any disclosure filing with anybody and there's never any noticed individuals that they have been investigated and again that this could be passed on to some other agency is that a valid concern about the patriot act i don't think so congressman section two six twelve allows  electronic communications provider in a situation where lives are in danger on an emergency basis to share information about their telephone number account or an account internet account with law enforcement and we've used it to save  young girl from pittsburgh who was in slave by a kidnapper we've used it when lives are in danger and if it produces evidence that results in a criminal case people learn about it because the evidence is disclosed as part of the criminal discovery if it doesn't lead anywhere it doesn't lead to an accusation against someone you're right there is no notice to that someone nor do i think there should be as unsettling as that sometimes is at first blush but again i don't know that the american people want us going in telling innocent people you are investigating as you're accused of this that didn't check out or telling your neighbors we're sending a card through the mail so your post man sees you got something from the the f b i to your home and your kids open it so dad you're investigated by the f b i i'm sorry open your mail again i don't i don't appreciate the consideration and i apologize for the witness but we had a markup in veterans and i had to be present for that perhaps a couple of observations because before coming to congress i was in federal law enforcement  both wiretaps search warrants and other means to be able to successfully investigate and prosecute cases there are a number of concerns with the patriot act one of  which addressed in your opening comments that i did hear and that involved that individual where with drugs they stole a car and were able to notify him subsequent to that section for criminal acts then it make more sense to give that authority within the criminal context for investigations rather than rely on the on and that is specifically targeting those that would be a threat to the national security the country congressman i don't know that the patriot act that anyone warranted that it was exclusively designed for counterterrorism that's it's primary purpose but as you know it made changes to a whole bunch of statutes from soup to nuts some of which are very useful changes in non terrorism cases some of which i'm trying to allege that we in federal law enforcement of used for a long time delayed notice search warrants my response when folks asked that question as well let's talk about the tool it's even makes sense if it doesn't make sense then people should talk about changing it if it makes sense but i don't know what difference it makes that it was an act that is part of the patriot act package or not well let me just tell you that the president of the american library association a lady named carol bray is the director of the paso public library and in a number of conversations the library librarians in general are very much concerned about the ability of the federal government to come in records  directly they would like a tightening up so that there's a specific nexus to a particular case and a reason for a federal agent to be there to get their  dressing that issue but how do you how do you address those concerns from people that are concerned about losing the the type to privacy that normally americans depend on one of the most painful parts of the patriot act debate or the or the follow on to the patriot act has been that librarians who in my experience are really good people and i'm not just sucking up to the first lady i mean they are people who care about civil liberties who care about kids and raising kids right have gotten so upset about this and i've tried and it's very gentle met with i believe that that lady and the american library association a week or so ago so we can try and explain we should all agree that libraries shouldn't be a safe haven for pedophiles for terrorists are bad guys nobody wants that so the question is what is reasonable for law enforcement to be able to do in that environment we think it's reasonable for law enforcement in an international terrorism investigation to be able to go to a federal judge and warrant that the records sought are relevant to that international terrorism investigation and on that basis get legal process to obtain the records we also think it's think it's reasonable to put in the statute  provision that allows the librarian or the library to challenge if they think it's inappropriate that they receive this order but we don't think it's reasonable for the protection of national security to make the bar so high that we create that safe haven that all of us worry about we know bad guys use libraries we know terrorists use libraries nobody wants them there everybody wants us there tracking those guys so we should talk about what's reasonable for us to be able to do in that environment  we'll recess for i think we've got one vote so we'll recess for about ten minutes and we will be back thank you mr chairman obviously none of us planned what just happened in the skies around washington and the good news is that whatever that emergency was it is over and we will learn more about it  later the bad news is that we lost our members and i know the chairman's going to announce rescheduling the rest is hearing i just want to say on the record because i may not be able to attend the rescheduled date at the rescheduled date that i think the second panel is extremely important unlike the other body as we say around here unlike the senate we are hearing from outside witnesses and their range of views will be very useful to this committee as it thinks about how to clarify the intent of the provisions of the patriot act i for one want to be heard that the patriot act is a valuable instrument but that some fine tuning is now necessary fo years out and i would think based on the questions of our first witness that the justice department is listening and is in general agreement and now the question is how do we craft and hopefully this this panel next week will be able to think even more carefully about that since they were all here and heard the testimony on the record with the first witness so i do apologize to everyone for the to adjourn this meeting for the record and we want to thank you i was looking forward to this hearing and we will see you next time if it we hope it fits within your schedule and with that this hearing is close