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33–418 PDF 2007

S. HRG. 108–915

PREVENTING AND RESPONDING TO ACTS OF

TERRORISM: A REVIEW OF CURRENT LAW

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

APRIL 14, 2004

SALT LAKE CITY, UTAH

Serial No. J–108–68

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ORRIN G. HATCH, Utah, Chairman 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

LARRY E. CRAIG, Idaho 

SAXBY CHAMBLISS, Georgia 

JOHN CORNYN, Texas 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

JOHN EDWARDS, North Carolina 

BRUCE ARTIM, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Feinstein, Hon. Dianne, a U.S. Senator from the State of California, letter, 

statement and attachment .................................................................................. 156

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 1

prepared statement .......................................................................................... 172

WITNESSES 

Benowitz, Nanette, President, League of Women Voters of Utah, Salt Lake 

City, Utah ............................................................................................................. 26

Bradley, Scott N., Utah Eagle Forum, Salt Lake City, Utah .............................. 32

Cohne, Bruce G., Chair, Utah Advisory Committee to the Commission on 

Civil Rights, Salt Lake City, Utah ..................................................................... 35

Collins, Daniel P., Munger, Tolles & Olson, LLP, Los Angeles, California ........ 37

Comey, James B., Jr., Deputy Attorney General, Department of Justice, 

Washington, D.C. ................................................................................................. 4

Eyer, Dani, Executive Director, American Civil Liberties Union of Utah, 

Salt Lake City, Utah ............................................................................................ 24

Flowers, Robert, Commissioner, Utah Department of Public Safety, Salt Lake 

City, Utah ............................................................................................................. 30

Mylar, Frank D., Utah Grassroots, Salt Lake City, Utah .................................... 28

Turpen, Aaron, Libertarian Party of Utah, Salt Lake City, Utah ....................... 34

Warner, Paul, U.S. Attorney, District of Utah, Salt Lake City, Utah ................ 7

QUESTIONS AND ANSWERS 

Responses of Nanette Benowitz to questions submitted by Senator Hatch ........ 50

Responses of Bruce Cohne to questions submitted by Senator Hatch ................ 53

Responses of Daniel Collins to questions submitted by Senator Hatch .............. 59

Responses of James Comey to questions submitted by Senator Hatch ............... 63

Responses of Dani Eyer to questions submitted by Senator Hatch .................... 81

Responses of Frank Mylar to questions submitted by Senator Hatch ................ 88

Responses of Aaron Turpen to questions submitted by Senator Hatch .............. 92

Responses of Paul Warner to questions submitted by Senator Hatch ................ 94

SUBMISSIONS FOR THE RECORD 

Benowitz, Nanette, President, League of Women Voters of Utah, Salt Lake 

City, Utah, prepared statement .......................................................................... 97

Bradley, Scott N., Utah Eagle Forum, Salt Lake City, Utah, prepared statement ...................................................................................................................... 103

Burrus, James H., Jr., Special Agent in Charge, Department of Justice, 

Federal Bureau of Investigation, Salt Lake City, Utah, prepared statement 110

Cohne, Bruce G., Chair, Utah Advisory Committee to the Commission on 

Civil Rights, Salt Lake City, Utah, prepared statement and attachment ...... 113

Collins, Daniel P., Munger, Tolles & Olson, LLP, Los Angeles, California, 

prepared statement .............................................................................................. 120

Comey, James B., Jr., Deputy Attorney General, Department of Justice, 

Washington, D.C., prepared statement and attachment .................................. 130

Edgar, Timothy H., American Civil Liberties Union, Legislative Counsel, 

Washington, D.C., , prepared statement ............................................................ 142

Eyer, Dani, Executive Director, American Civil Liberties Union of Utah, 

Salt Lake City, Utah, prepared statement ........................................................ 150

Page

IV

Flowers, Robert, Commissioner, Utah Department of Public Safety, Salt Lake 

City, Utah, prepared statement .......................................................................... 164

Green Party of Utah, Salt Lake City, Utah, prepared statement ....................... 168

Mylar, Frank D., Utah Grassroots, Salt Lake City, Utah, prepared statement 175

Turpen, Aaron, Libertarian Party of Utah, Salt Lake City, Utah, prepared 

statement .............................................................................................................. 180

Warner, Paul, U.S. Attorney, District of Utah, Salt Lake City, Utah, prepared 

statement .............................................................................................................. 184

(1)

PREVENTING AND RESPONDING TO ACTS OF 

TERRORISM: A REVIEW OF CURRENT LAW 

WEDNESDAY, APRIL 14, 2004 

UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 10:00 a.m., at the S.J. 

Quinney College of Law, University of Utah, Salt Lake City, Utah, 

Hon. Orrin G. Hatch, Chairman of the Committee, presiding. 

Present: Senator Hatch. 

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. 

SENATOR FROM THE STATE OF UTAH 

Chairman HATCH. If we can have attention. If everybody will 

give their attention, we are going to start this hearing. I want to 

welcome everyone here today to this special hearing in our great 

state of Utah. 

Today’s hearing is another in a series of bipartisan hearings 

which the Senate Judiciary Committee has initiated under my direction to examine the adequacy of our Federal laws to protect the 

American public from, and of course respond to, acts of terrorism 

against the United States. I’m pleased to hold this hearing at home 

and I’m grateful for all the participants for taking the time to be 

with us today. 

I would especially like to welcome Deputy Attorney General 

James Comey who has made a special effort to join us here in 

Utah. I’m very grateful that he would take time from what I know 

is a tremendous schedule, and a very important schedule, to come 

out here. It shows to everybody concerned how important this hearing is. 

I would also like to acknowledge the many federal, state, and 

local leaders of our community, including Chief Judge Dee Benson 

of the United States District Court. We will also be privileged to 

hear from distinguished members of our community on both sides 

of these issues. 

I would also like to thank our U.S. Attorney, Paul Warner, who 

is one of the most respected U.S. attorneys in the country, for 

hosting a Project Safe Neighborhoods breakfast this morning. And 

of course Dean Scott Matheson, Jr., an old friend who has done 

such a great job here. And of course the University of Utah and its 

Quinney College of Law for providing a forum for this hearing. 

Let me note at the outset that, like our neighbors across America, we in Utah have much to learn from this cruel but real threat 

of terrorism. We can be proud, however, that Utah’s experience 

2

with the Winter Olympics provided the nation with tangible evidence of the importance of federal, state, and local law enforcement 

officials joining together with an informed citizenry to establish a 

safe and secure environment. 

This took an immense amount of cooperation, and our state deserves a lot of credit. It took cooperation, it took coordination, and 

it took communication among many individuals and organizations. 

And I’m proud to recognize many of those responsible for that successful event and the security that we continue to enjoy here in 

Utah today. 

Today’s hearing will focus on the issue of protecting our Nation 

while, at the same time, observing our traditional civil liberties in 

the aftermath of the horrific September 11 attacks. Certainly September 11 and the war on terrorism are a reality and we are still 

addressing those today. The unprovoked and unjustified attacks on 

September 11 forced us to take appropriate steps to make sure that 

our citizens are safe, and that terrorists never strike again on 

American soil. We are doing our best to try to stop them from ever 

striking again. 

The first duty of the national government is to protect our citizens from threats abroad, and we are not going to shirk this responsibility. Senator Leahy, the ranking Democratic member of the 

Senate Judiciary Committee, and I have worked together for a long 

time to examine these important issues. 

In fact, when he was Chairman of the Committee we worked 

closely together to craft the PATRIOT Act in a bipartisan manner, 

which carefully balances the need to protect our country without 

sacrificing our civil liberties. Without the hearing leadership of 

Senator Leahy and the support of my fellow colleagues across the 

aisle in the Congress, we could not have acted so effectively after 

September 11 to have passed this measure in the United States 

Senate by a vote of 98–1. 

Passing the PATRIOT Act did not finish our job. Congress has 

the responsibility to oversee these laws that we passed, and that 

they are implemented properly and as we intended. I am confident 

that we will continue to work as Democrats and Republicans cooperatively in the future as we continue this series of hearings. 

There are some who say that the cost of protecting our country 

from future terrorist attacks is an infection upon our cherished 

freedoms. Some have suggested that our anti-terrorism laws are 

contrary to our Nation’s historical commitment to safeguard civil 

liberties. I disagree. I believe that we must have both our civil liberties and national security or we will have neither. 

Thomas Jefferson said, ‘‘The price of freedom is eternal vigilance.’’ Congress and the nation must be vigilant. True individual 

freedom cannot exist without security, and our security cannot 

exist without the protection of our civil liberties. We must and we 

will have collective security and individual liberties. 

Unfortunately much of the rhetoric regarding our Nation’s antiterrorism laws appears to be based on misinformation and unjust 

speculation. Additionally, some critics have tried to divert attention 

to those leading the implementation and the review of these laws, 

including me, Attorney General Ashcroft, and President Bush, 

3

rather than making specific documented critiques of these laws and 

how they believe these laws have been enforced. 

Our nation has strived to make a major and reasonable response 

to the tragic events of September 11, including fixing some significant deficiencies in the pre–9/11 law that Deputy Attorney General 

James Comey will address in his testimony today. And Deputy 

Comey should know, since he was one of the key prosecutors in the 

Khobar Towers trial, and in so many other prosecutions that occurred in his U.S. Attorney’s office at the time. One of the most 

powerful and important offices in the country. 

He will tell us why it was important to change the law to update 

our anti-terrorism provisions to include the same capabilities, 

methods, and technologies that are used against drug trafficking, 

pornography, and organized crime. 

Today we will focus on evaluating the tools that are in place to 

protect us from the clear and present threat of terrorism on our 

soil. I want to look forward and make sure the tools we have in 

the law are implemented effectively and are not being abused. 

While we all share a common commitment to security and freedom, 

the question we are examining today is how best to do so in an environment where terrorists like the 9/11 attackers will continue to 

operate within our borders using the very freedoms that we so 

dearly cherish to carry out their deadly plots against our country 

and against us as individuals. 

Let me remind everyone that the 9/11 attackers were able to 

enter into our country within the strictures of our immigration 

laws. They were able to enjoy the freedoms, secure for themselves 

all the necessary traffics of law abiding members of our society, 

and then carry out their terrible terrorist attacks under the radar 

screen of law enforcement, intelligence, and immigration agencies. 

This hearing will examine the government’s efforts to protect our 

freedoms; not just the freedom to live in a safe and secure society, 

but the freedoms that our country was founded on, the freedoms 

that we enjoy each and every day, and the freedoms that are the 

lifeblood of our society. I’m especially interested in hearing from today’s witnesses about the details of any specific abuses that have 

occurred under our current laws. 

We have invited several representatives and groups critical of 

our Nation’s counter-terrorism laws to express their concerns 

today, and we want to listen to them. But I hope their concerns 

will be substantive concerns. We must not let the debate fall into 

the hands of those who spread unsubstantiated and false allegations when it comes to these important issues. We are interested, 

of course, in hearing thoughtful criticism and ideas about how this 

current law or any current law should be modified to better protect 

the national security as a whole, while maintaining our civil liberties. 

If we need to refine the law, we will do that. It’s going to come 

up for reauthorization next year. If we need to strengthen the law, 

we will. If the facts show that we have gone too far in one area 

or another we will make appropriate adjustments. But first we 

have to talk about the facts. We have to find out the facts. And 

that’s what we are doing here today, and what we have done in the 

prior two hearings. 

4

Today we are discussing a very, very serious matter: Our nation’s 

security. I know that we will carefully examine these issues today, 

and we have a lot of good people here to help us. 

I’m very pleased with the distinguished panel members that are 

joining us here today. On our first panel we have Deputy Attorney 

General Comey who will be followed by United States Attorney 

from the district of Utah, Paul Warner. 

As I mentioned, Deputy Attorney General Comey brings a depth 

of experience, not only as a deputy attorney general but as a 

former lead prosecutor in this country. And I just mentioned, I 

think, Khobar Towers as one of them. We sure look forward to 

hearing your testimony today and are very grateful that you took 

time out of what we know is an impossible schedule to be with us. 

It shows how important these issues are that you would take this 

kind of time. 

Also with us today is Paul Warner. The United States Attorney 

for the District of Utah and former head of the Attorney General’s 

Advisory Committee for all attorneys general in the country. We 

have to be proud of Mr. Warner. Mr. Warner has worked closely 

with local, state, and Federal law enforcement agencies in a collaborative effort to combat terrorism. Mr. Warner, we are grateful 

that you took time out to be with us today. 

And so are we ready to proceed? Mr. Comey we will start with 

you. 

STATEMENT OF JAMES B. COMEY, JR., DEPUTY ATTORNEY 

GENERAL, DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Mr. COMEY. Thank you, Mr. Chairman. My written testimony I 

will submit to be part of the record. 

Chairman HATCH. We will make all full statements part of the 

record. 

Mr. COMEY. Thank you, sir. 

First of all, thank you for inviting me here today. Thank you for 

holding this hearing, which is an opportunity for my first visit to 

this amazingly beautiful state and city. I am also honored to be 

sharing this table with my friend and colleague, Paul Warner, one 

of the real heroes of the Federal prosecutor ranks in this country. 

I thank you for holding this hearing because I believe there has 

been no real informed public debate about the PATRIOT Act over 

the last 18 months to 2 years. Instead, we have found ourselves in 

a situation where town councils across the country, including in my 

former home of New York City, have voted to repeal the PATRIOT 

Act, and where people stand around at dinner parties and nod 

when someone talks about how awful the PATRIOT Act is. Those 

folks are good folks, those people in town councils and dinner parties across this country. But I don’t believe they know what is in 

the PATRIOT Act. I don’t believe that they could, and vote to repeal the PATRIOT Act. 

The Act, as you know well, Mr. Chairman, includes such things 

as additional monies for the widows and children left behind by 

public safety professionals killed in responding to terrorism. It expresses the sense of the Congress that backlash crimes against 

Arab Americans and Sikh Americans are evil and we should work 

to prevent hate crimes against Arab Americans and Sikh AmeriVerDate 0ct 09 2002 15:46 Apr 05, 2007 Jkt 033418 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\33418.TXT SJUD1 PsN: CMORC
5

cans. If people knew those things were in the PATRIOT Act, they 

wouldn’t be voting to repeal the PATRIOT Act. So there has been 

no real debate. 

I thank you for providing a forum for that debate and I thank 

you for inviting people who care, both people who will be critical 

of the PATRIOT Act and supportive of it. I believe, from reading 

their statements, that they are all people who care passionately 

about government power and how it is used. I know you do. I know 

I do. 

This country was founded by people who cared about the limits 

on government power and who insisted upon a Bill of Rights for 

that very reason. Questions should be asked about government 

power and an informed debate should be had about government 

power. I believe if we actually have that, if people at dinner parties 

and at town councils and across this country demand the details, 

find the space in American life to have an actual informed understanding of the PATRIOT Act, they will realize that it is so smart, 

so ordinary, and so important, that they won’t want to change it 

and that they wouldn’t dare dream of repealing such an important 

piece of legislation. 

As you said, sir, I’m not aware of any documented abuses of the 

powers under the PATRIOT Act. I’m aware of only one court decision that struck down any portion of the PATRIOT Act, and that 

was a decision by a district judge in California on a very technical 

constitutional interpretation ground saying that some of the provisions of the material support for terrorism statute were too vague 

and needed to be tightened up. That’s it as far as I’m aware. 

I want to touch on, though, a couple of specific areas that folks 

have gotten all excited about and concerned, that I believe folks 

don’t know the details of that and that I know a great deal about 

from my experience as a career prosecutor; so-called ‘‘sneak and 

peek’’ search warrants. What we, in law enforcement, call ‘‘delayed 

notification’’ search warrants. It’s something that has so much controversy in this country. It sounds awful, the ‘‘sneak and peek’’ 

search warrant. People conjure up visions of law enforcement 

sneaking into your bedroom and going into your drawers and closing them and sneaking back out of your house. 

How is it really used? That’s what people want to know. I have 

used delayed notification search warrants a number of times in my 

career, always in the most important and dire of circumstances. 

When I was a Federal prosecutor in Richmond, Virginia there was 

a drug gang moving into Richmond from New York. As I used to 

say, where all bad things come from. 

And this drug gang was a violent group of crack dealers from 

Brooklyn, New York City who were trying to gain a foothold in the 

city of Richmond. And we couldn’t get into them. We had one informant who had contact to them, and he explained that they were 

really bad guys and he didn’t know exactly who they were. But he 

knew one thing: They had just delivered five kilos of cocaine to an 

apartment in the west end of Richmond. 

So we had a problem, we had a dilemma, a choice to make. Do 

we go get a search warrant and seize the drugs, exposing the informant, risking his life, blowing the investigation, and jeopardizing the chance to ever bring to justice these violent drug crimiVerDate 0ct 09 2002 15:46 Apr 05, 2007 Jkt 033418 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\33418.TXT SJUD1 PsN: CMORC
6

nals? Or do we let five kilos of cocaine walk onto the streets and 

be distributed and used by people in Richmond? 

We didn’t have to make that choice between those two options 

because we had a third option. And prosecutors in the country have 

had the third option for generations and have used it when necessary. We went to a Federal judge and explained what I just explained to you, in a sworn affidavit laid out our probable cause, 

and the judge authorized a search warrant and authorized the 

Drug Enforcement Administration to make the search look like a 

burglary. 

So the agents went in, they seized the five kilos, they took the 

TV, stereo, and they broke a window. They then left. Two leaders 

of the drug organization came to the apartment and called the police. A marked unit responded. The police officer had been briefed 

by the DEA, he knew who he was dealing with, and he asked, 

‘‘Who are you?’’ And they identified themselves. 

‘‘And is this your apartment?’’ 

‘‘Yes, this is our apartment.’’ 

‘‘What was taken?’’ 

‘‘A stereo and the TV.’’ 

‘‘Anything else taken?’’ 

‘‘No.’’ 

‘‘But this is your apartment?’’ 

‘‘Yes.’’ 

‘‘And this is your address and this is your Social Security number?’’ 

‘‘Yes, yes, yes.’’ 

By that act, we protected the streets of Richmond from those 

drugs, we identified the leaders of the organization, we delayed for 

60 days notification of the search, and during that 60 days locked 

up all of them, protecting the informant’s life. And then we arrested them. We turned over the search warrant, returned the TV, 

returned the stereo, paid to fix the window. 

When I explain that story to people, from whatever point on the 

political spectrum, they say, ‘‘Gee, I wouldn’t want you not to have 

that tool.’’ All the PATRIOT Act did was take that tool, which was 

judge-created by Federal judges, Democrat and Republican, because it was necessary to have that tool to save lives in this country, and put it in the statute and laid out the standards and said 

when it could be used. 

That’s what’s in the PATRIOT Act. If we lose that, we will lose 

it for terrorists, for murderers, for Mafia dealers, and for drug 

lords. People in the United States do not want that. That’s why 

they need to demand the details. 

I would just like to quickly touch on two other things Mr. Chairman. So-called roving wire taps. Drug dealers in the 1980’s started 

to use cell phones and they knew that we could get wire taps on 

cell phones so they started changing cell phones regularly, throwing out a phone and getting a new one. 

Congress then gave we drug prosecutors the authority, in 1986, 

I believe, to get a wire tap that followed the bad guy, not the 

phone. We would go to a judge, establish probable cause, this drug 

dealer was using phones and changing phones to do his business, 

and we could then, when he swapped phones, continue to listen to 

7

his calls without having to run back to a judge and say, ‘‘We think 

he is on a new phone.’’ 

All the PATRIOT Act did was give us that same authority with 

terrorists, so that terrorists, who are every bit as smart and, in my 

experience, smarter than drug dealers, who swap phones that they 

buy at 7–Eleven every day or week, we don’t have to go back to 

a judge in a different jurisdiction or back to the same judge day 

after day after day. We can follow the terrorists without missing 

a beat. And if we have learned anything from the 9/11 hearings it 

is that we cannot afford to go dark for any period of time. We cannot miss a beat in battling these enemies. 

The PATRIOT Act also did something radical, something earth 

shattering, something breathtaking that nobody talks about. The 

PATRIOT Act broke down the wall that separated intelligence investigators tracking terrorists from criminal investigators tracking 

terrorists. Prior to the PATRIOT Act, those two groups could not 

talk to each other. 

My good friend, Patrick Fitzgerald, now the U.S. Attorney in Chicago, was one of the leaders of an effort to do a criminal investigation of Osama Bin Laden in the late 1990’s. And he was building 

a criminal case, talking to informants, talking to witnesses, doing 

surveillances, trying to get wire taps. In the course of that effort, 

he and the agents working with him could talk to police officers, 

they could talk to foreign police officers, they could talk to foreign 

citizens, they could talk to Al Qaeda members who had come to our 

side, had defected. 

There was only one group of people they could not talk to because of that wall, and that was the FBI agents upstairs conducting an intelligence investigation of the very same targets. The 

two groups had to follow the same people without talking to each 

other, wire tap the same people without talking to each other. And 

as Pat Fitzgerald says, a world in which those two groups could not 

talk to each other, where he could talk to Al Qaeda but not to the 

FBI, is a world where we are not safe enough. He said, and I 

couldn’t say it better, ‘‘The PATRIOT Act was not rushed. It came 

10 years too late.’’ 

So I welcome this debate. I believe that government power is so 

important that it should be laid out in the sunshine of public discussion, which is the best disinfectant. I will do anything I can to 

discuss and debate. That’s why I’m so grateful and happy to come 

here to this beautiful place to talk and to listen and to hear how 

we are using these important tools. So I thank you for the forum. 

[The prepared statement of Mr. Comey appears as a submission 

for the record.] 

Chairman HATCH. Thank you, Mr. Comey. We appreciate you 

being here and appreciate your comments. I have some questions 

for you in just a minute. Mr. Warner? 

STATEMENT OF PAUL WARNER, U.S. ATTORNEY, DISTRICT OF 

UTAH, SALT LAKE CITY, UTAH 

Mr. WARNER. Thank you. Good morning, Mr. Chairman. Thank 

you for the kind introduction. 

8

I consider it an honor to be here today with Deputy Attorney 

General, James Comey, an outstanding former United States Attorney and a good friend. 

I appreciate the opportunity to testify today about the USA PATRIOT Act. I have served as the United States Attorney for the 

District of Utah almost 6 years. I have seen many changes in how 

our country has dealt with the threat of terrorism during that time. 

From 1998 to the end of 2000, I chaired the Subcommittee on 

Terrorism for the Attorney General’s Advisory Committee of the 

United States Attorneys. I was frustrated at that time with the obvious lack of tools necessary for us to properly investigate threats 

of terrorism. 

As an example, the Attorney General’s investigative guidelines, 

as they existed at that time, handcuffed and blindfolded the FBI. 

For instance, they were not allowed to attend meetings that were 

otherwise open to the public or to research materials on internet 

sites that virtually everyone else in the public was free to access. 

Further, because of then-existing provisions of law and policy regarding the Foreign Intelligence Surveillance Act, or FISA, information sharing between criminal investigations and intelligence investigations was virtually nonexistent. Likewise, the investigative 

tools that we did have available for terrorism were often outdated, 

insofar as technology was concerned. 

With the passage of the USA PATRIOT Act shortly after 9/11, 

Federal law enforcement and Federal prosecutors were given many 

new tools to deal with the reality of terrorism as we had come to 

know it. Some provisions of the USA PATRIOT Act gave investigators and prosecutors new tools for fighting terrorism. Other investigative tools, used for years in a wide range of other types of criminal investigations, are now explicitly permitted in terrorism cases 

under the provisions of the Act. 

Let me give two quick examples. First, Section 213 of the USA 

PATRIOT Act allows Federal agents, with court approval, to give 

delayed notice that a search warrant has been executed, in certain 

narrow circumstances. Critics have referred to this provision as 

‘‘sneak and peek,’’ and claim that it has expanded the government’s 

ability to search private property without notice to the owner. 

However, the truth is that delayed notification warrants are a 

long-existing crime- fighting tool upheld by courts nationwide for 

decades in organized crime, drug, and child pornography cases. 

Section 213 of the PATRIOT Act simply codified the authority allowing law enforcement to seek and execute delayed-notice search 

warrants, an authority that had already received judicial approval. 

Indeed, the U.S. Supreme Court has declared delaying notice of a 

search to be constitutional. 

Second, Section 215 of the Act allows Federal agents to obtain ex 

parte orders from the FISA court to require the production of any 

tangible items, including books, records, documents, and the like, 

in an investigation to protect against international terrorism or 

clandestine terrorism activities. Obtaining business records is a 

long- standing law enforcement investigative tool. Ordinary grand 

jury subpoenas, with no court approval necessary, have been used 

for years to obtain all kinds of business records including records 

of libraries and bookstores. And, of course, Section 215 contains a 

9

number of safeguards that protect civil liberties, including providing for Congressional oversight of the Department’s use of this 

tool. The Department of Justice reports to Congress on a semi-annual basis regarding requests for ex parte orders made pursuant 

to this section. 

The USA PATRIOT Act also gave us tools allowing investigators 

and prosecutors to effectively deal with terrorists’ use of modern 

technology in the planning and execution of their operations. For 

example, the so-called roving wiretap provisions in Section 206 now 

give us the authority in terrorism investigations to use the tools we 

had used in a wide range of criminal cases, including drug and 

racketeering cases, since 1986. At the same time, we can now use 

new technology to track wireless phone calls, reflecting the realities 

of our digital world. 

Likewise, the USA PATRIOT Act has greatly facilitated information sharing and cooperation among government agencies so they 

can now better connect the proverbial dots. The Act removed the 

legal impediments that kept the law enforcement and intelligence 

communities from sharing information and coordinating activities 

in the common effort to protect our National security. 

Here locally in Utah, we have enjoyed an unprecedented amount 

of information sharing among federal, state, and local law enforcement agencies. And, for the first time in our history, Assistant U.S. 

Attorneys from my office regularly sit down with local FBI agents 

to review intelligence investigations, and to coordinate matters 

where criminal and intelligence issues intersect. Our local FBI Special Agent in Charge, Chip Burris, is an enthusiastic partner with 

me in the sharing effort. 

I am aware that almost as soon as the USA PATRIOT Act was 

passed, many well-intentioned people raised concerns about the Act 

in terms of the potential denigration of civil liberties and rights of 

privacy. In communities throughout the nation, there has been 

much public debate about the Act. I have participated in a number 

of these discussions. The public debate of these issues is important, 

and consistent with our cherished freedom of speech. It is also in 

keeping with the great traditions of our country. All of us are concerned with the delicate balance of protecting our freedoms without 

destroying them in the process. However, terrorists must not be allowed to use our cherished liberties as a shield to escape prosecution for their acts. If so, they will thereby be afforded an 

unimpeded opportunity to destroy us and the freedoms we all hold 

so dear. 

The concerns about the USA PATRIOT Act have often focused on 

the potential abuse of the new investigative tools that have been 

provided to law enforcement. Yet, as with any set of tools, they can 

be used constructively to help build a solid defense against terrorists, or, they potentially can be abused in ways that infringe on the 

rights of law abiding citizens. To a certain extent, there is always 

a risk when you put a new tool in someone’s hands. But this risk 

is minimized significantly when the tool is put in the hands of professionals who are closely monitored, not only by the Department 

of Justice, but also by the courts and by Congress. That is the case 

with the USA PATRIOT Act. I am personally much more fearful 

of unchecked terrorism in America, for a lack of tools to fight it, 

10

than I fear the potential for abuse of the law by the Federal agents 

and prosecutors we have entrusted with these tools. 

In the wake of 9/11, Attorney General Ashcroft clearly articulated the importance of preventing terrorist acts from happening in 

the first place, by disrupting terrorist plotting and planning. Accordingly, prevention and disruption have become our primary goal 

since 9/11. 

This paradigm shift meant there had to be a change in the 

means and methods of investigating if we were to prevent and disrupt terrorism. Prosecutors and investigators must make more effective use of tools already in place in order to prevent and disrupt 

terrorist activity, rather than merely react by prosecuting such activity after the fact. Likewise, the USA PATRIOT Act also provided 

new tools necessary to do the job. Hence, Sections 213 and 215, 

which I have referred to earlier, are vital parts of our strategy of 

prevention and disruption, detecting and incapacitating terrorists 

before they are able to strike. 

Unfortunately, I believe that to a certain extent we are victims 

of our own success. Because so far there have not been any successful attacks here in the United States since 9/11, many people have 

become complacent. Such complacency is a mistake, in my opinion. 

Some of those who criticize the USA PATRIOT Act focus unreasonably on the perceived potential abuses that could occur by way of 

the Act, rather than real success that has already been achieved 

and the absence of any actual abuses. 

Finally, I certainly respect those who disagree with my views, 

and likewise support and defend their right to express that disagreement. I must add, however, that it is easy to sit on the sidelines and criticize those who are actually in the arena, and who 

have the responsibility to keep us safe, and who are trying to do 

the job to the best of their abilities consistent with the rule of law 

and our Constitution. The good news is that two and a half years 

after 9/11, we are much safer and much better at what we do in 

fighting terrorism. But much still needs to be done. Let us not 

make the mistake of again putting the handcuffs and blindfolds on 

Federal law enforcement that existed prior to 9/11, and yet continue to ask them to protect us in our post–9/11 world. We must 

have the tools necessary to do this job. The USA PATRIOT Act 

gives us many of these tools and is critical to ensuring the safety 

of our country. 

Mr. Chairman, I thank you for the opportunity to appear before 

the Committee today. And I would be pleased to answer questions 

at this time. 

[The prepared statement of Mr. Warner appears as a submission 

for the record.] 

Chairman HATCH. Thank you, Mr. Warner and Mr. Comey. Let 

me ask some questions of you so that we can clarify some of these 

things. 

Mr. Comey, you have prosecuted a number of the major cases in 

this country and have had tremendous experience as a prosecutor 

and you have front line experience of bringing terrorists to justice 

as well. In your new capacity as Deputy Attorney General of the 

United States, you now help direct our Nation’s efforts to identify, 

stop, and punish potential terrorists. From both a statutory and 

11

law enforcement priority, resource and coordination perspective, is 

the United States in a better position to prevent and respond to 

acts of terrorism than it was on 9/11? 

Mr. COMEY. Yes, Mr. Chairman. In two dramatic ways. The first 

is that thanks to the heroic efforts of the men and women in the 

United States military and our intelligence services, we have, for 

the first time, taken the fight to the enemy. Taken it around the 

world to strike them where they are in their training camps and 

in their hideouts. That has been a huge, huge accomplishment. It 

has made the American people immeasurably safer that we have 

disrupted and destroyed the camps and arrested or killed so many 

of the significant Al Qaeda leaders. 

Here at home we are much safer than we were before September 

11 for a number of reasons, some of which I touched on in my opening comments. By giving law enforcement some of the smarter tools 

we have used against drug dealers for decades, we have made the 

American people safer. 

But most importantly, by taking down that wall that was built 

in about 1995 that separated the bright, energetic people on the 

criminal side from the bright, energetic people on the intelligence 

side, both going after terrorists. By taking that wall down we are 

much, much safer. I don’t say that we are safe. We are not safe. 

We are safer. 

Chairman HATCH. That’s interesting. Could you please specifically comment on whether our law enforcement and the FBI are 

working more closely and sharing information with our National 

security apparatus or with our National intelligence agencies such 

as the CIA than they were before 9/11? 

Mr. COMEY. Yes, dramatically so. 

Chairman HATCH. You are saying they really couldn’t talk to 

each other before then because of the artificial bars that were put 

up. 

Mr. COMEY. Yes. We had built a wall, both by law and culture 

and practice, that made FBI agents working on either side of the 

wall afraid that if they talked to somebody on the other side it 

would be, to use a phrase that was common in the FBI, a career 

ender. That you simply had to almost put up an antiseptic separation curtain between criminal investigators investigating the very 

real threat of crimes of terrorism from the intelligence investigators trying to gain information to prevent attacks. 

We are in a much better place today. We can always improve, 

but the stove pipes that separated people within the FBI and separated the CIA from the FBI, all those things have been addressed 

dramatically. 

Chairman HATCH. Had they had the PATRIOT Act before 9/11, 

they would have been able to cross-analyze the various findings 

that both of them were coming up with; but without a law cross, 

analyzation couldn’t be put together effectively. Am I correct in 

that? 

Mr. COMEY. Yes, you are Mr. Chairman. I think that’s one of the 

things that the 9/11 commission, on a bipartisan basis, is going to 

conclude; that it was a huge mistake to have this wall and that we 

are very much safer by not having it. I know that that’s across the 

board, Democrats and Republicans, all say that that was broken 

12

and the PATRIOT Act fixed it. And people who know the PATRIOT 

Act who understand the details, whether or not they are critical of 

other parts of it do not want that wall put back up. And that is 

going to be put back up if we allow this bill to sunset next year. 

That’s why when the president said we have to focus on this; the 

legislation is going to sunset but the terrorist threat is not going 

to sunset by the beginning of the next year. So we have to focus 

it now. 

Chairman HATCH. So it is of great concern to you and other law 

enforcement officials that if this sunset comes through and we don’t 

continue to re-authorize these law enforcement priorities, we will 

be back to where we were before 9/11 in some aspects. 

Mr. COMEY. Yes. In very, very important respects we will. We 

will be set back technologically, we will be set back in terms of information sharing. Which is why, as I said, I’m so grateful to someone like you and your colleagues for trying to find the space in 

American life to have an informed discussion about this, to hear 

from people who have concerns, who are good folks. Some of them 

are here today. ‘‘What do you think is broken about the PATRIOT 

Act and why,’’ so that we don’t find ourselves in 2005, not having 

the discussion and facing the bumper stickers of, ‘‘Isn’t it evil?’’ It 

is not evil. And if people understood how it is being used by the 

men and women of the FBI, they would see that, as well. 

Chairman HATCH. Now, I have to say that many of these tools 

that we have given you in the PATRIOT Act—I’m one of the prime 

authors of it, and the Justice Department played a major role in 

it as well, and the Democrats and Republicans got together and 

passed it 98–1 in the Senate. It was over a long period of time. It 

wasn’t just a sudden urge that we had. I have been arguing for 

some of these law enforcement provisions for years; decades, as a 

matter of fact. 

Is it fair to say that a number of these provisions that we have 

in the PATRIOT Act that bring domestic anti-terrorism law enforcement actions were already tools that law enforcement had to 

go against common criminals, organized crime, child molesters, and 

pornographers? Is that fair to say? 

Mr. COMEY. Absolutely fair to say. And it’s the— 

Chairman HATCH. So these aren’t brand new ideas, necessarily? 

Mr. COMEY. No. 

Chairman HATCH. These are tools that you had for these other 

crimes, but we just hadn’t brought our anti-domestic-terrorism 

laws up to speed. Is that a fair comment? 

Mr. COMEY. That’s absolutely fair. People say, ‘‘My gosh, you 

cooked up this PATRIOT Act in two or three weeks. It can’t be the 

real deal.’’ 

As you pointed out, Senator, these were things that responsible 

people in government, Democrats and Republicans and in Congress, had been trying to get done for years. And the political will, 

your political will was there but the political will of a lot of people 

in Congress was simply not there to give these tools. Some of the 

tools were asked for by the Clinton administration. So this is prosecutors who worked terrorism and drugs noticed that they could 

get a roving wiretap on a drug dealer but you couldn’t get it on a 

terrorist. You could do a ‘‘sneek and peek’’, a delayed notification 

13

search warrant in some circumstances, but you couldn’t do it with 

a terrorist. We saw that for a long time. 

September 11 was a great tragedy. I would do anything to undo 

it. But I’m somebody who believes that we have an obligation, 

whether you are a religious person or not, to try to make some good 

come from evil. We will never justify the evil, but your obligation 

is not to let evil hold the field. Among the things that happened 

after September 11 that was good, was that the political will was 

found to give these tools that should have been there all along. 

Chairman HATCH. The so-called ‘‘sneak and peek’’ provisions, are 

these really new? I mean, are these really new or have those been 

provisions used by law enforcement in other criminal matters for 

years? 

Mr. COMEY. Federal judges created the doctrine of delayed notification searches. 

Chairman HATCH. Why did they do that? Why did they do such 

a lame-brained thing in the eyes of some people? 

Mr. COMEY. Because they had encountered the same situation all 

over this country like I encountered in Richmond. We need to save 

lives and protect the community. The Fourth Amendment said 

searches shall be reasonable, and they concluded this was a reasonable thing to delay notification of a search warrant to save lives 

and protect critical investigations. 

Chairman HATCH. So the criminals wouldn’t be notified in advance of what is going on, so you could literally follow through and 

get all the criminals, not just one or maybe insignificant ones? 

Mr. COMEY. Absolutely. It was done here in the Ninth Circuit, 

which is considered judicially to be a liberal place. It was done in 

the Fourth Circuit, which is the southeast. It was done in the 

northeast in the Second Circuit. It was a tool that was necessary 

in the Supreme Court, as my colleague said, and it was constitutional. And it is smart. 

It was used in New York to retrieve a gun from under the floorboards of a Mafia safehouse, in a case I’m familiar with. In the 

middle of the night, we heard the mobsters talking in their house 

about how they had this weapon under the floor. The FBI went and 

got it under delayed notification search warrant, took it to the lab, 

tested it, fingerprinted it, took the firing pin out, and then put it 

back so the mobsters wouldn’t know we were listening to their conversations. 

Then when they were all arrested, we pulled up the floorboards, 

grabbed the gun and told them, ‘‘We’ve been listening to you. Not 

only that, we took your gun and we fingerprinted it, and now we 

can connect it to a murder.’’ When people hear about that they say, 

‘‘That is smart.’’ And that is not only smart, it’s constitutional. 

All the Act did was lay out, in a statute now, Congress acted for 

the first time, what’s been going on from the judicial supervision 

for generations in this country, and we really can’t do without. 

Chairman HATCH. And it made it possible for us to, without 

warning terrorists in advance, to be able to conduct appropriate 

law enforcement activities against suspected terrorists. 

Mr. COMEY. Yes, sir. The key to terrorist investigations is finding 

one guy, and then finding the rest. So you can imagine circumstances—simply, there’s no margin for error. You can’t get 

14

eight of nine cell members. You have to get all nine or the American people are in great peril from the last one blowing himself up 

and killing people. 

So you can imagine circumstances where you would need to be 

able to sneak into a place that the terrorists are using to mix 

chemicals, which we have seen in the past, or where their records 

are, get them and back out of there without letting them know we 

are on to them. Because the alternative is going in there with raid 

jackets on and knocking down the door and grabbing eight guys— 

Chairman HATCH. And missing all the rest. 

Mr. COMEY. And the ninth, who has a suicide invest, God forbid, 

disappears. We cannot take that chance. 

Chairman HATCH. Sometimes it takes patience on the part of law 

enforcement and prosecutors to be able to follow through so they 

don’t just get the initial up-front guys but the ring leaders besides. 

Mr. COMEY. Yes. 

Chairman HATCH. And if you didn’t have that delayed notification, which you have had in other criminal matters, you would be 

giving advance notice to the terrorists, and they simply abscond 

and continue their activities. Is that a fair comment? 

Mr. COMEY. It’s a fair comment. And also, the statute provides 

that it should be used only in extraordinary cases and lays out basically lives in danger, witness tampering, obstruction of evidence 

or obstruction of investigation. I think we have done it nationwide 

since the PATRIOT Act maybe 47 times. Made 47 applications. 

Again to Federal judges—we don’t do this on our own. You’ve got 

to go to a Federal judge, lay it all out in a sworn affidavit. 

Chairman HATCH. And assert probable cause. 

Mr. COMEY. Exactly. We have applied 47 times, is my recollection, and we had 47 applications granted by Federal judges, who 

are no pushovers whether they are appointed by a Republican 

president or a Democratic president, in my experience. There’s no 

such thing as a rubber stamp Federal judge. 

Chairman HATCH. I think it is important for people to understand that these aren’t brand new tools that we have given. These 

are tools that have been used in the past that now can be used 

against terrorists. 

There are so many other questions that I have. But there’s been 

a lot of criticism of the trap and trace provisions that we have put 

into this bill. The idea of getting or having the right, in law enforcement, to get the phone numbers out of a terrorist’s phone and 

the numbers going into a terrorist’s phone. Tell me why that is essential to law enforcement. 

Mr. COMEY. We in law enforcement, for years, have connected 

the dots in drug organizations by going to a Federal judge and getting what’s called a pen register, which is a device that doesn’t give 

us the content of any calls but gives us the numbers calling into 

a phone or calling out from a phone. We have used that to find the 

spokes in a conspiracy; the players, the couriers, the leaders. To 

find who is involved. That is very, very important in drug conspiracies. You want to find who all the players are. 

It is lifesaving in terrorism cases. We need to find all the dots, 

all the members of that cell. All the PATRIOT Act did was allow 

15

us to use that tool in intelligence investigations against terrorists. 

Go to a Federal judge. Get an order. 

Chairman HATCH. You don’t have a right to just unilaterally do 

this. 

Mr. COMEY. Oh, no, sir. 

Chairman HATCH. You have to go to a Federal judge. 

Mr. COMEY. Yes. 

Chairman HATCH. And you’ve got to show probable cause. 

Mr. COMEY. That’s a common misconception about the PATRIOT 

Act. The provisions of the PATRIOT Act that apply tools from regular criminal investigations to intelligence counter-terrorism investigations require us to go to Federal judges, make showings, to be 

supervised. This is not something that the government, meaning 

the executive branch, can do on its own. 

Chairman HATCH. Compare that to grand jury proceedings. Do 

they need to go to a Federal judge to do some of the things that 

law enforcement can do at grand jury proceedings? 

Mr. COMEY. No. And this is, again, one of the many myths that 

we are hoping to find the space in our life to have people understand is a myth. To get records, business records, from a car rental 

agency or a library, in a criminal case a prosecutor can just cut a 

subpoena and give it to an agent. No judicial involvement, or 

showings, no writings. Subpoena gone. Records obtained. 

Chairman HATCH. That’s without any judicial— 

Mr. COMEY. No judicial involvement whatsoever. Just out goes 

the subpoena. In comes the records. 215 has the librarian— 

Chairman HATCH. Talking about Section 215 of the PATRIOT 

Act? 

Mr. COMEY. Yes. Section 215 of the PATRIOT Act that has so 

many people concerned about libraries, and it has not been used—

anyway, for a lot of reasons it is not a concern. It requires an agent 

doing a counter-terrorism investigation to go to a Federal judge, 

file an affidavit in writing, and get a court order that allows you 

to get the records from the car rental agency or the library. It is 

actually much more onerous. 

Chairman HATCH. Or any other record. 

Mr. COMEY. Or any other record. It involves judges in a way that 

criminal investigations don’t. What we’ve got is we have taken 

some of the power of the criminal investigator and made it harder, 

and put into the PATRIOT Act. 

Chairman HATCH. In other words, by grand jury you could do 

that without even consulting with a judge. The prosecutor could. 

But under this law, you have to have judicial approval to be able 

to do these investigations into whatever the recordkeeping outfit is. 

Mr. COMEY. That’s correct. We have to go to a Federal judge to 

get that approval. 

Chairman HATCH. As I understand it, wasn’t the Unibomber case 

partially broken because of being able to go in—but this was grand 

jury, I believe. But being able to go into a library and see what he 

was reading and be able to connect the dots to capture him and put 

him away? 

Mr. COMEY. Yes. In his obscure, bizarre writings, his manifesto, 

he referred to some fairly obscure texts. And the FBI, in an effort 

to find out who it was, went to libraries to find out who had 

16

checked out these particular very obscure and unusual books to see 

if we can connect them. 

Now, that is something else that goes on. Librarians, themselves, 

do not want libraries, I don’t believe, to be a sanctuary for criminal 

behavior; that if someone is in there checking out books about 

bomb making or radiological dispersion devices I have to believe, 

I do believe, that librarians want us to be able to find that out and 

track that down. And so it’s a question of how are we using these 

tools and what is reasonable? 

Chairman HATCH. Grand Jurys can use that power against common criminals. Why wouldn’t we be able to use that power, under 

judicial supervision and approval, with regard to suspected terrorists? 

Mr. COMEY. I agree completely. The other thing that folks don’t 

realize is under the PATRIOT Act, if the government uses that 

power to get records from a library—as Paul Warner said, libraries 

aren’t mentioned in the PATRIOT Act but they become a focus of 

concern. If we use that provision to obtain records from a library 

or credit card agency or car rental agency, every 6 months we have 

to report to Congress on how we used it, how many times we used 

it. And that is much more onerous— 

Chairman HATCH. We put that in there as a protection of civil 

liberties. 

Mr. COMEY. It is much more oversight than in grand jury context. 

I am a big fan of librarians and I’m not just saying that because 

the president is married to a librarian, but I believe that they are 

some of our best, most public-spirited citizens, and some of the best 

readers, frankly. I would hope that they will read and demand the 

details to know about what these tools are, how they are being 

used. 

Nobody wants a sanctuary in a library for a pedophile or a terrorist. That would be crazy to allow people to use computers—and 

we have a lot of internet access in libraries—to allow terrorists or 

pedophiles to go into a library, use the computers to either lure 

children or communicate with terrorists, knowing that we couldn’t 

follow them there; that it was a sanctuary for criminal behavior. 

That would be crazy. And I have seen some of that happening. 

I have seen software in major libraries in this country that 

scrubs the hard drive after each user. When I first saw that, I saw 

it in the context of a terrorist investigation, because someone went 

there to use it, my reaction was, ‘‘What are we doing? What are 

we doing as people who care about saving lives?’’ I don’t care what 

your political background. That is something that has to concern 

you. We need to strike the balance in an appropriate way. 

Chairman HATCH. You have been really helpful here. I have a lot 

more questions but let me turn to Mr. Warner for a minute or two. 

People cast their eyes towards Washington, D.C. when engaging 

in debate over laws dealing with national security. However, many 

of those laws require action by those in the field across the country. 

People just like you. 

I was wondering from both the national perspective, serving as 

the head of the Attorney General’s Advisory Committee of all U.S. 

Attorneys in this country, as well as the local perspective having 

17

served as a state and Federal prosecutor here in Utah, and your 

leadership role in helping plan security for the Olympics, would 

you share with us your perspectives on what steps have been taken 

and remain to be taken by law enforcement in Utah and other 

states to combat terrorism? 

Mr. WARNER. Thank you, Mr. Chairman. I will try and be brief. 

But there’s a lot of really great things that are happening here in 

Utah in regard to the question. 

I think that the Olympics were a real blessing to this state from 

the standpoint of your question, because long before some of these 

issues came to the forefront with 9/11, we were looking at addressing these issues in preparation for possible terrorism events at the 

2002 Winter Olympics. That brought federal, state, and local law 

enforcement together in Utah many years ago in a way that really 

was not being done elsewhere in the country as a result of our 

preparation for the Olympics. 

We have developed some real expertise here in Utah and I think 

that one of your other witnesses, Mr. Flowers, our State Public 

Safety Commissioner, will talk a little bit about some of the things 

that are going on. But we have this great intelligence network between our Joint Terrorism Task Force here in Utah and the Homeland Security Folks in the state of Utah, who are working hand in 

glove. We built an intelligence architecture that allows sharing in 

unprecedented ways in the state. 

We have taken specific steps in at least two examples I will 

quickly mention towards this prevention and disruption paradigm 

that I talked about in terms of sharing information and using that. 

Shortly after 9/11, in December of 2001, we were the first district 

in the country to do an Operation Tarmac type approach to safeguard our airports. In this case we did so in order to hopefully provide security before the Olympic games were to begin in February. 

That operation has been repeated in virtually all the major airports 

around the country. We used that from the standpoint of not only 

closing a gap but also obtaining intelligence and using that intelligence to protect ourselves. 

Recently, a few months ago, in another joint federal, state, and 

local effort, we went after some real weaknesses in the issuance of 

commercial driver’s licenses with the assistance and cooperation of 

Commissioner Flowers and his good people. That has been a great 

operation from the standpoint of not only closing the gap, but intelligence-sharing again. And also preventing and disrupting problems before they can occur. 

As an example, just quickly, if somebody were to get a commercial driver’s license without really testing for it, being able to buy 

it, in essence, we don’t know who they are, we don’t know where 

they are from. They now have the ability to drive a tanker truck 

anywhere, use that as a mobile bomb, for all intents and purposes. 

We are closing these kinds of gaps and we are doing it because we 

are sharing, we’re talking. The FBI and the state authorities and 

the local sheriffs and police chiefs are now talking and sharing information in ways we have never done before. 

Chairman HATCH. Thank you. 

Mr. Comey, if you would care to comment, there’s been a lot of 

criticism of Section 215 of the PATRIOT Act, and we are going to 

18

hear some of that criticism, as I understand it, from the second 

panel. Let me read to you what one of my constituents wrote to me 

about Section 215, and I’d like you to respond to this. If you have 

that letter in front of you, the fifth paragraph here. 

It says, ‘‘I have not read the entire USA PATRIOT Act, but because of its implications Section 215 has become a focus of my concern. In Section 215 the Act gives the Department of Homeland Security the right to secretly search homes and other aforementioned 

personal information without warrant and without notifying the 

subject of the investigation. It is pertinent to bookstores and libraries because the Act permits law enforcement to demand records of 

the books borrowed or bought without the subject being notified or 

charged with a particular crime.’’ 

‘‘It additionally states that booksellers and librarians are prohibited from notifying the person investigated or anyone else of the 

search, including legal counsel. This is a dangerous assault on civil 

liberties.’’ 

Would you care to respond to that? I’d like you to respond to that 

assertion or those assertions. 

Mr. COMEY. Yes, Senator. This is fairly typical of concerns I have 

heard both in writing and in person. And I’m sure, obviously I don’t 

know your constituent, but that he cares enough to write about this 

sort of thing, and this is the sort of citizen I think we want in this 

country. But he needs information. 

First of all, Section 215, as we have discussed, allows the FBI, 

not the Department of Homeland Security, to go to a Federal judge 

and get a court order allowing the FBI to obtain records from businesses. Doesn’t mention libraries. 

Chairman HATCH. You have to go to a Federal judge. 

Mr. COMEY. Right. You have to go to a Federal judge and get an 

order to do that. It doesn’t permit searches. It is not about 

searches. 

It does, however, allow the Federal judge to order that the person who is providing the documents not tell the target. And that 

is something that I hope librarians will take a second to think 

about. Because people who care about privacy, as I do and I know 

you do, would not want the FBI telling anyone who they are investigating or why they are investigating. To go into a library and say, 

‘‘I’m investigating this guy, Paul Warner, down the street. Here is 

what we think it is about.’’ Nobody would want us to do that. 

So the librarian or other recipient won’t have all the facts about 

what we are investigating, and shouldn’t. Because we care about 

privacy. So how is it, then, that a librarian or credit card agency 

or car rental place should be in a position to make the decision 

about whether to tell the target that they have obtained these 

records? 

Should a librarian have been able to call Ted Kaczynski and say, 

‘‘Hey, Mr. Kaczynski, the FBI is in here looking at your records’’? 

No. And I don’t think that is an unreasonable restriction. It is one 

imposed by a Federal judge, and frankly one that has not been 

used. But it is a reasonable balance between the need to obtain 

critical information and the need to protect privacy. 

Chairman HATCH. You don’t know when or where you might 

have to use it in the fight against terrorism. 

19

Mr. COMEY. No. And people say, in response to that, ‘‘Well, if you 

have never used it, why don’t we take it out of the PATRIOT Act?’’ 

And my response is that many police officers go through their career, thank goodness, never drawing their gun from their holster 

but they need that gun and the gun should be there. Nobody wants 

to take guns away from them. 

This is a very important tool that might become critical if we are 

subject to another terrorist attack which, as my colleague, Mr. 

Warner said, people dismiss and don’t focus on enough. We are in 

great peril in this country. There are people lying awake at night 

all over the world trying to think of ways to kill our citizens. Thank 

goodness we have men and women awake all night trying to stop 

them. But we are by no means safe. We are safer. 

Chairman HATCH. Thank you. So far, much of the debate has focused on the PATRIOT Act. Mr. Warner, you may want to comment on this, too—but isn’t it true that many of the statutes that 

have been on the books for a long, long time such as the laws pertaining to mail fraud, subpoenas, wiretaps, forfeiture, and highjacking, also come into play? Could you explain what provisions of 

law you use to go after potential terrorists beside the PATRIOT Act 

and explain how the PATRIOT Act complements existing laws, 

laws that have existed for decades. 

Mr. COMEY. What I think the PATRIOT Act does, as I’ve said a 

couple times, most importantly is allow us to blend a criminal and 

an intelligence response to terrorism. We have to use every possible 

tool to disrupt terrorists. We need to lock them up for credit card 

fraud, for immigration fraud, for mail fraud, for money laundering. 

Whatever we can do. 

What the PATRIOT Act does is homogenize those tools. It allows 

us to move seamlessly from counter-intelligence response to terrorism, to a criminal response to terrorism, and back again; with 

judges involved, with standards involved, with sunshine all over 

the place. That’s a very, very important thing. 

And again, I think one of the things that the 9/11 commission 

will tell all of us is you had too many walls, too many stove pipes, 

too many hesitations before September 11. We need to be able to 

play the entire field, stay in bounds -and this is something I have 

devoted my life to—stay inside constitutional bounds, but cover the 

entire field in the effort to defeat this enemy. 

Chairman HATCH. Paul, do you care to comment on that? 

Mr. WARNER. Just a comment. I think you hit it on the head in 

the sense that there are multiple tools out there, and as one who 

is using the tools I want all the tools available. I may not use every 

one of them every day but I don’t want any of them taken away 

or locked in a box and I can’t have them when I need it. 

You have mentioned grand jury subpoenas. We use them every 

day. 

Chairman HATCH. That’s without judicial approval. 

Mr. WARNER. Without judicial approval. 

Chairman HATCH. Other than that the law provides you can do 

that. 

Mr. WARNER. Absolutely. 

Chairman HATCH. And has for as long as I can remember. 

20

Mr. WARNER. Indeed it has. And we use them regularly and we 

use them effectively, in my opinion, and we try and use them in 

absolutely professional and ethical ways. 

I might add, though, that Section 215, as an example, is a good 

adjunct, a good corollary tool to be used when necessary with grand 

juries or instead of a grand jury subpoena. 

But my point is simply this: Any tool can be used or it can be 

abused. We have talked about this a little bit earlier but I emphasize it again. The fear that people have about particular sections 

of the PATRIOT Act really, in my opinion, are a fear of abuse, and 

I understand that. But I don’t think we should allow our fear that 

tool will be abused to keep us from having the tool. If, in fact, these 

tools are abused, as Mr. Comey indicated, there’s many types of 

oversight that are in place between the Department of Justice, between the Congress and the courts, that allow for review of the use 

of these tools. But I think in the post 9/11 world, we need the tools 

and it would be a real shame to say because they might be abused, 

you can’t have them. 

Chairman HATCH. Well, I think you can say any criminal law 

might be abused. We have to make sure that we oversee and that 

we do things appropriately. That’s what your job is in many respects, as well as a prosecutor. Yours, too. You have to oversee the 

people in the field and make sure they abide by the law and their 

civil liberties are protected and not endangered. And that’s one of 

the major jobs you have in justice, and one of the major jobs that 

I have in the Senate, and the people in the Judiciary Committee 

have. 

I guess you could say any anti-crime law could be abused by 

rogue law enforcement people. Our key here is to not take away 

the tools that good law enforcement people need just because some 

rogue person could abuse them. And that’s hopefully what the PATRIOT Act is doing. 

Now, let me just ask this question. Many of the witnesses on the 

second panel here today are supporting legislation that would impose a seven-day limit on delayed notification search warrants. And 

this seven-day period could be extended by a judge, I think someone would argue that that might be the case. Now, I’m not sure 

that a seven-day limit is practical in the case of terrorists. 

In my experience and knowledge of terrorism in this country and 

how long it takes to get them, and how carefully we have to be that 

they are not notified and be able to cover their tracks, it seems to 

me that 7 days may not be right. What do you think about that, 

and what about a 30- or 60-day limit or some other limit which 

would be expandable by the courts? 

Mr. COMEY. I don’t think it is an unreasonable thing for people 

to say we have a seven-day limit on delayed notification search 

warrants. My response though is why. Why not, because a Federal 

judge is supervising it, allow the Federal judge, as the PATRIOT 

Act does, a reasonable period because each case is different. And 

I don’t see that anything is broken there so I don’t know why we 

would try to fix it by imposing a seven-day window. Like I said, 

it’s not a crazy thing to say and I don’t react by saying, ‘‘That person is out to lunch.’’ But I don’t know why we would do that when 

we have a standard laid out in the statute, a Federal judge superVerDate 0ct 09 2002 15:46 Apr 05, 2007 Jkt 033418 PO 00000 Frm 00024 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\33418.TXT SJUD1 PsN: CMORC
21

vising based on sworn affidavits that allows the Federal judge to 

react to the circumstances of each case. 

Every one is different. A Mafia safe house case, you may need 

to stay up on the bug in the Mafia safe house for months but you 

can’t leave a murder weapon under the floorboards, because that 

might disappear, without going in and taking it. If you impose the 

seven day limit on yourself then every 7 days you have to go back 

to the judge. I don’t know why that is more reasonable than saying 

a Federal judge shall supervise and determine what is reasonable 

given a particular investigation. In terrorist cases would be the 

most extreme example. 

Chairman HATCH. And one of the main considerations by the 

judge or by the prosecutor himself or herself is that in certain circumstances, if you don’t have that delayed notification, then you 

may never get to the bottom of the crime. You may never get to 

the bottom of the terrorist act, you may never get to the bottom of 

the terrorist activity. And it has to be supervised by a judge. But 

it’s for the purpose of not notifying the perpetrators so that they 

can escape or avoid or otherwise get away with what their criminal 

activity is. Am I correct in that? 

Mr. COMEY. Absolutely, Senator. And people who understand the 

nature of our work, even those who are critical of many aspects of 

our work, I think, understand the importance of that tool. When 

you tell good folks, ‘‘This is the way we use it to save lives,’’ their 

response always is, ‘‘Okay. That’s reasonable. I didn’t understand 

that.’’ And that’s part of the challenge we face in the PATRIOT Act 

debate. 

When people hear about ‘‘sneak and peek,’’ they think, ‘‘’Sneaking’ and ‘peeking’ are both bad things. I’m against bad things.’’ But 

this is a very good thing used cautiously but used when it really, 

really matters. And I think it’s reasonable for people to discuss 

ways in which we use these tools. But reasonable people, I think, 

unite in the understanding that we have to have this basic tool. 

Chairman HATCH. I think that’s right. If Congress does not take 

any action, several vital sections of the PATRIOT Act are going to 

expire in 2005. Could you explain to us here today what impact 

these provisions which are to sunset in 2005 have had on the Department’s efforts to fight terrorism. And could you also explain 

how the Department’s efforts to prevent terrorism will be affected 

by these provisions, or should I say will be affected if these provisions are not re-enacted by Congress. 

Mr. COMEY. I’m not someone who is given to hyperbole. But the 

effect of the sunsetting, particularly of the information-sharing provisions that allow criminal people to share with Intel, and Intel 

back, lives will be lost. That will return us to the dangerous situation we were in before September 11. We cannot allow that to happen. 

Another example is if we lose the roving wiretap authority, I 

mean, either I or the Attorney General have to personally approve 

every Foreign Intelligence Surveillance Act search or surveillance 

in the United States. And they come to me around the clock and 

lay out these circumstances for me before they go to a judge and 

I have to approve them. We are up on roving wiretaps of people 

involved in international terrorism. 

22

Chairman HATCH. By being ‘‘up on’’ you mean you are following 

them. 

Mr. COMEY. We are following, we are listening to their conversations. They are switching phones. If that sunsets and we go dark, 

we have put ourselves in a very dangerous situation. That can’t be 

allowed to happen. And that’s why the sunset date, when the president said, ‘‘The legislation may sunset, but the terrorist threat does 

not sunset,’’ that is not just some punchline from a speech. That 

is a very, very important day, that day in 2005 when the sunset 

is supposed to happen, which is why it is so important we have this 

discussion now. Because we would be failing the American people 

if, like kids not doing their term paper until the night before, we 

started trying to figure out whether we need these tools the day before they were to sunset that. Because that would put us in great 

peril. 

Chairman HATCH. It’s been very helpful. I have read Dick Clark’s 

book and found it interesting. It is a substantive guide. I’m also on 

the Joint Committee on investigating these matters on intelligence. 

And I heard his testimony when he came and testified in closed 

hearings before us. And that testimony was not the same as what 

his book has said. Of course, his book is much more detailed. But 

the testimony did not lay out some of these defects that he feels 

exist today. 

Plus, I have been watching whenever I can. I’m so busy I don’t 

have enough time to follow the 9/11 Commission’s hearings. But I 

have been reading what they were saying, I have been watching 

them when I can. And virtually everybody, Democrats, Republicans, including Dick Clark, have said that the PATRIOT Act is 

crucial in the fight against terrorism. Am I exaggerating that? 

Mr. COMEY. No, sir. Janet Reno was asked that question yesterday and endorsed the PATRIOT Act very strongly. And because, as 

I said, if people know our business, Democrats or Republicans, if 

you know what we do for a living and how we use these tools, 

which is what we are trying to get everyone else to understand, 

you will say, ‘‘You need to have that. You need to be able to follow 

drug dealers and terrorists in the same way.’’ Frankly, you ought 

to be able to follow terrorists more easily than you follow drug 

dealers, but now we at least have a level playing field. 

So your understanding of the 9/11 Commission, it’s a bipartisan 

commission and I believe it’s going to end up with a bipartisan conclusion that we need this act. 

Chairman HATCH. That’s certainly the experience that I’ve had. 

The people who really understand it and really know, especially 

law enforcement people, will tell you that without that act we are 

going to place our country and our people in jeopardy. There’s no 

question about it. I have concluded from what you have said that 

that is true. Am I catching you correctly? 

Mr. COMEY. Yes, sir. 

Chairman HATCH. I want to personally express my gratitude to 

both of you. I know the great work that you both have done. Unfortunately, in Utah, Paul, most people don’t know what you do. But 

day in, day out, you and our state and local law enforcement people 

are protecting our state. And not just our state but the whole country because of what comes in and out of our state. And I really adVerDate 0ct 09 2002 15:46 Apr 05, 2007 Jkt 033418 PO 00000 Frm 00026 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\33418.TXT SJUD1 PsN: CMORC
23

mire and appreciate what you are doing and all the law enforcement people in our state. Our state and local people are great, too. 

And we need to give them the tools that they need. 

Mr. Comey, I’ve watched your career for a long time. And there’s 

no better prosecutor in the country than you. And I think you have 

exhibited that here today. And for you to take the time to come out 

here and be at this hearing, I know you consider it that important. 

And it is that important. I think it is very important that you be 

here. 

We hear your testimony because a lot of people misconstrue what 

is in the PATRIOT Act. It is a tough set of laws. But they are laws 

that are designed to protect us while, at the same time, balancing 

the civil liberty concerns that all of us have and all of us don’t 

want to be infringed upon. So that delicate balance you have to 

maintain. I count on you, Paul, and others throughout this country 

in the Federal Government to make sure we do that. We want to 

thank you both for being here. I will end with that. Thanks so 

much. 

Mr. WARNER. Thank you, Mr. Chairman. 

Mr. COMEY. Thank you, Mr. Chairman. 

Chairman HATCH. Let me take a second and draw the second 

panel up. 

[Recess.] 

Chairman HATCH. It’s an extremely interesting hearing and it’s 

extremely important in regard to the PATRIOT Act. And I’ll take 

from this all that I can. So if we could have order. 

I’m pleased to introduce our second panel of witnesses. We have 

a diverse selection of supporters and critics of the PATRIOT Act 

from all over the political spectrum. First we will hear from Dani 

Eyer, executive director of the ACLU here in Utah. Glad to have 

you with us. 

Nanette Benowitz, with the League of Women Voters of Utah. 

Welcome. 

And Robert Flowers, Security Commissioner who is a hero to me, 

having gone through all of the protections that we worked together 

on during the Olympics. He’s Commissioner of the Utah Department of Public Safety and one of the great law enforcement people. 

Scott Bradley is here to represent the Eagle Forum of Utah. Glad 

to have you with us. 

Aaron Turpen is the secretary of the Libertarian Party of Utah. 

Aaron. Glad to have your point of view, as well. 

Bruce Cohne, an old friend of mine from a long time. I don’t want 

to hurt your reputation by that, but he’s a good guy, a smart lawyer. He’s Chair of the Utah Advisory Committee for the United 

States Commission on Civil Rights, and Bruce we are glad you took 

time out of your schedule to be here with us. 

And finally, we would be pleased to hear from Dan Collins. Dan 

Collins is the Former Associate Deputy Attorney General and currently with Munger, Tolles & Olson, one of the great law firms of 

Los Angeles, California. So we think it is wonderful of you to take 

time to come to the University of Utah with us today and participate in this hearing. 

We are grateful to all of you because you are serving your country by letting us know what you feel, what your criticisms are, and 

24

your feelings of law enforcement and this particular bill. And we 

are grateful to have you here. I intend to listen. And we will start 

with you, Ms. Eyer, and go from there. 

STATEMENT OF DANI EYER, EXECUTIVE DIRECTOR, ACLU OF 

UTAH, SALT LAKE CITY, UTAH 

Ms. EYER. I’m told we are supposed to hold this down while we 

speak? 

Chairman HATCH. No. I think once you push it— 

Ms. EYER. I think we have to hold it down. 

Chairman HATCH. That’s a little difficult. 

Ms. EYER. Chairman Hatch, on behalf of the ACLU of Utah, I am 

pleased to be here to explain our concern with four sections of the 

USA PATRIOT Act. As a former high school civics teacher in Utah 

and a political science major and graduate of BYU’s law school, I 

have deep respect for our system of limited government that balances power by giving each branch, executive, legislative, and judicial, a role in protecting our liberty and security. And I have heard 

from many Utah citizens from the right, left, and center who are 

interested in more open government, judicial review and accountability. 

The PATRIOT Act has become a symbol for excessive executive 

branch power. The Act was the product of an extraordinary time 

just after September 11 in which Congress and the administration 

were working quickly, under pressure, to give law enforcement and 

intelligence agencies new surveillance powers. 

Given that context, it is not surprising that some of the provisions need adjustment. An excellent bipartisan first step would be 

to pass the Security and Freedom Enhanced, or SAFE Act of 2003, 

sponsored by Republican Senator Craig from Idaho and Senator 

Durbin from Illinois. I have read that some senators are hesitant 

about passing the SAFE Act because it ‘‘repeals’’ parts of the PATRIOT Act. I do not think that is accurate. The SAFE Act does not 

repeal any portion of the PATRIOT Act; rather, it modifies three 

surveillance sections and broadens the sunset clause, essentially 

amending four out of 158 provisions of the Act in order to restore 

checks and balances while specifically preserving those powers for 

use in terrorism. 

I have submitted an attached memorandum which explains in 

detail how passage of the SAFE Act would still leave government 

with substantially more power than it had before the PATRIOT Act 

was passed. But, in sum, the four sections the SAFE Act would affect, one, to restore judicial safeguards for search warrants; two, to 

require articulable suspicion of connection to a terrorist before a 

court may approve demands for personal records from a third 

party. This is a standard far lower than ‘‘probable cause’’ but more 

than nothing. Third, require—and I was misquoted in The Tribune 

today—require that roving wiretaps in intelligence cases— 

Chairman HATCH. Join the crowd, okay? 

Ms. EYER. Require that roving wiretap in intelligence cases have 

the same standards as in criminal cases in order to guard against 

interception of innocent conversation. And fourth, expand the sunset clause to require Congressional review of three new surveillance provisions. 

25

These safeguards would not prevent the government from using 

‘‘sneak and peek’’ searches, secret court orders for records, or roving wiretaps even in nonterrorism cases. They simply require more 

meaningful judicial scrutiny. 

For better or worse, in the public mind the issue of the PATRIOT 

Act has also grown to include the entire array of new government 

policies adopted after 9/11. Utahns have a strong tradition of skepticism for government power, particularly surveillance power. 

As an example, Utah has recently rejected the MATRIX system, 

a surveillance plan that combines billions of records about individuals from government and private databases, creating an entity 

that could track every private life without safeguards and court 

oversight. These notions of intrusive surveillance offended Utahns 

across the board, and the MATRIX plan was quickly ushered out. 

Utahns are equally leery about provisions of the PATRIOT Act 

involving the secret surveillance, where and to what extent those 

provisions have been used remain a mystery. 

This law, the law imposes a gag rule on those who receive surveillance orders. Utahns are fearful that private aspects of their 

lives can be searched more easily without their knowledge and 

without any ability to challenge. 

As for Section 215 and the power to obtain records held in the 

hands of third parties, I offer a local perspective. I once owned and 

ran an independent bookstore in Utah County. I know many booksellers and librarians in Utah and I want to convey why it is that 

Section 215 carries with it a message of alarm. 

An extremely sensitive relationship exists between booksellers, 

librarians, and customers. People who walk into bookstores carry 

with them a burden of insecurity. They worry about their intellect, 

they worry about their choice of reading material, and that someone might be watching or judging them. It’s the duty of librarians 

and booksellers to calm those fears and create an atmosphere of inclusion and trust. 

This is the living, breathing manifestation of our concept of freedom of press, freedom of expression, and freedom from government 

intrusion and personal information gathering, or privacy. In America we must be able to obtain written material without worries 

about surveillance. 

If, in fact, the government has not utilized Section 215 to obtain 

personal records, then it makes no sense to further alienate people 

with threats of intrusion into areas that are so instinctively protected. This should prompt further review of Section 215 to find the 

balance between its efficacy and the problems of perception that it 

creates, which could at least be mitigated by a restriction of its use 

to those for whom there is individualized suspicion. 

At the end of next year, 17 sections of the act will expire and 

Congress should review those provisions and ask tough questions. 

Congress plays a crucial role in assuring the public that its liberties are protected. A public that is afraid that the government 

wants unchecked power will become suspicious even of legitimate 

anti-terrorism efforts. Congress must preserve that real oversight. 

Last, I appreciate the fact that you, Senator Hatch, have noted 

that your constituency is worried. And I agree it is noteworthy in 

a state known for its patriotism that its two leading newspapers, 

26

The Tribune and The Deseret News have published several editorials expressing concern about the PATRIOT Act. It is also remarkable that the ACLU of Utah joins not only the League of 

Women Voters but the Eagle Forum, Grass Roots—the Conservative Caucus, and the Libertarian Party in expressing concern related to the PATRIOT Act. This is a combination we do not often 

see here in Utah. 

Chairman HATCH. It’s once in a lifetime. 

Ms. EYER. Thank you for the opportunity. 

[The prepared statement of Ms. Eyer appears as a submission for 

the record.] 

Chairman HATCH. Thank you. We appreciate you coming and appreciate your suggestions and kind remarks. 

We will turn to you, Ms. Benowitz? 

STATEMENT OF NANETTE BENOWITZ, PRESIDENT, LEAGUE OF 

WOMEN VOTERS OF UTAH, SALT LAKE CITY, UTAH 

Ms. BENOWITZ. Benowitz. 

Senator Hatch, and members of the Committee, I would like to 

thank you for the opportunity, also, to testify at this hearing. 

I share the views of many Americans that we need new measures 

to protect against terrorism while maintaining fundamental protections of democratic society. As a member and president of League 

of Women Voters of Utah I welcome the opportunity to share our 

organization’s thoughts with you. 

Our membership expressed concern about the USA PATRIOT Act 

at our state convention last May. Since then, many have chosen to 

study this issue, either through public meetings or at smaller, more 

intimate gatherings. I have included individual comments from our 

members in our written testimony. The most telling, I believe, was 

from Bonnie Fernandez who said, ‘‘There is no valid reason to abrogate the constitutional protections of civil liberties, even in the 

name of national security. When national security supersedes the 

Constitution, we are in greater danger than any danger the terrorists might present.’’ 

In fact, we members all over the United States have been steadfast in our convictions that we must balance the need to protect 

against threats to America with the need to preserve liberties that 

are the very foundation of this country. A government open to citizen scrutiny with checks and balances among the legislative, executive, and judiciary branches, including independent judicial review of law enforcement and limits on secret, indiscriminate 

searches are essential to guarding our liberty. 

Let me start by saying that we support the overall intent of the 

USA PATRIOT Act. We recognize that law enforcement must be 

able to address new forms of terrorism. However, we urge Congress 

to perform review and oversight that they did not have the luxury 

of performing in September and October of 2001. We urge you to 

review exactly what the PATRIOT Act has accomplished and to revise the provisions that we believe have unnecessarily infringed 

upon our civil liberties. 

I have three concerns I would like to express today. Issue number one, citizens fear that by supporting laws designated to protect 

them, they have given up many of their basic liberties. 

27

Our country has survived the Cold War and other serious dangers to our National security. Throughout these difficult times, all 

three branches of our government have examined and refined the 

protections afforded to all under the Fourth Amendment. This careful constitutional balance should not be set aside without concrete 

evidence that new powers have prevented or would have prevented 

attacks. 

Revelations about abuses of surveillance and potential powers 

have created a climate of distrust between the citizenry and law 

enforcement that we simply cannot afford at this time. We have 

heard a wide variety of commentary on secret searches with delayed notification and even gag orders on third parties who hold information that should, by right, remain private. 

Issue number two. We support the Security and Freedom Enhancement Act because it addresses some of the problematic provisions of the PATRIOT Act. The League supports provisions in the 

SAFE Act to limit ‘‘sneak and peek’’ searches first authorized by 

the PATRIOT Act. The SAFE Act would allow serving a search 

warrant only to be delayed when the government can show secrecy 

is truly a need to prevent flight, destruction of evidence, or danger 

to life or physical safety, and only for renewable seven-day periods. 

This would allow judges to exercise oversight using meaningful 

standards that uphold our Fourth Amendment protection against 

unreasonable search and seizures. 

We also support SAFE Act limits on law enforcement’s request 

for business records. In contrast to the PATRIOT Act, evidence 

would be required to show that requested records actually relate to 

a spy, terrorist, or other foreign agent. Businesses such as banks, 

doctors, universities, libraries hold sensitive information about our 

private lives, and most importantly our private thoughts, including 

political thoughts. This information should not be available to the 

government without suspicion of wrongdoing. 

Finally, we support the SAFE Act proposals to require ‘‘sneak 

and peek’’ warrants and national security letters, which allow access to personal records without a court order. They should be included in the PATRIOT sunset provisions. 

And the last issue we have, as the League has studied this issue, 

it seems clear that what is needed is not additional powers but the 

better use of existing powers. The PATRIOT Act and subsequent 

bills have called for revisions to the Foreign Intelligence Surveillance Act. We are concerned that FISA warrants no longer limited 

to foreign intelligence gathering will become the warrant of choice 

because they are easier to secure than traditional warrants. 

FISA was enacted specifically to restrict the use of these powers 

for domestic criminal investigations and prosecutions because of 

government abuses targeting individuals, political and religious 

groups in the 1950’s and the 1960’s. The potentially chilling effect 

of extensive surveillance and detention powers on both healthy political debate and effective cooperation between citizens and law enforcement is simply too great. 

The case of alleged hijackers, Zacarias Moussaoui, indicates it 

was not FISA restrictions that kept law enforcement from learning 

more about 9/11 hijackers, but the failure of the officials to seek 

28

a warrant at all, to lack of cooperation between FBI, CIA, and 

French intelligence. 

We ask that you give law enforcement resources the need to communicate with each other and do their job better, not undermine 

laws that hold these officers to higher standards. Simply put, relaxed warrant requirements make it easier to add hay to the pile 

but not any easier to find the needle. 

In conclusion, I would ask this Committee to address all of the 

provisions of the PATRIOT Act, not just the sunset provisions. We 

feel strongly that this Act is too important not to be given the attention it deserves. We ask you to support the SAFE Act and to 

add oversight and review to the PATRIOT Act that would provide 

appropriate protection for innocent Americans from unrestricted 

government surveillance. 

And finally, we encourage law enforcement to more effectively coordinate, implement, the use of the information they already have. 

I would like to thank you, Senator Hatch, and the Committee for 

holding these hearings and giving all of us the opportunity to express our thoughts on this Act. The League was eager to participate in the diverse coalition that was formed to encourage open 

dialogue on the PATRIOT Act. Sitting at a table in Utah with 

Utahns from many cultures, including from the Middle East, empowered me and renewed my respect for the diversity of this country. This hearing has been an important process for educating 

Utahns about the steps our government is taking to review the PATRIOT Act. Thank you. 

[The prepared statement of Ms. Benowitz appears as a submission for the record.] 

Chairman HATCH. Thank you for your time and efforts you put 

forward. 

Mr. Mylar. 

STATEMENT OF FRANK MYLAR, UTAH GRASSROOTS, SALT 

LAKE CITY, UTAH 

Mr. MYLAR. Chairman Hatch, and honorable members of this 

Committee, I am pleased to be able to present information today. 

Chairman I know that you cherish the Constitution and you 

would have a desire to see if there’s any problems by holding this 

hearing so we can correct those. I very much appreciate that. 

My name is Frank Mylar. I’m a private attorney in private practice emphasizing law enforcement and civil rights issues and I also 

previously served as Utah Special Assistant Attorney General for 

over twelve years ago. I’m very cognizant of the challenges facing 

law enforcement in the 21st century. 

I’m not here as a paid lobbyist. I’m here because of personal convictions and I was asked by Utah Grass Roots caucus to address 

these issues that they also are in agreement with. 

I unequivocally support President Bush in his administration 

and his reelection campaign. However, our President and Congress, 

in our zeal to try and stamp out terrorism can sometimes have tunnel vision especially during difficult times like we have gone 

through since September 11. I also am very disturbed at many of 

the things going on with that commission because I think that everyone can have better vision with 20/20 hindsight and I think that 

29

they are missing the boat; however, that there still are important 

issues that are raised by this hearing and with this Act that need 

to be looked at. 

Even if Congress passed the most restrictive laws imaginable, we 

will not prevent future acts of terrorism. But if we did so, we would 

forever change who we are as a people and a nation beyond recognition. And it’s for this reason that we must proceed with caution 

and courage in how we draw those lines as to what the Federal 

Government can and cannot do, because indeed it is not questioned 

that they certainly can do a lot more things than they used to be 

able to do to intrude into the citizens’ lives. 

We really haven’t even significantly debated this whole concept 

of the facts that the CIA and the FBI can work as a team now. 

There may be some benefits from that, but I think we need a lot 

more debate and caution on that particular area for several reasons. 

One of the things that I think is very significant here is that 

with Section 215, and when you look at also Section 213, which I 

won’t particularly talk about, you don’t have to be a target of someone that has committed a crime, actually, before they take those 

records. In fact, you don’t have, under FISA, of course, the question 

is whether you actually are a terrorist or not or involved in terrorist activities. 

I’m particularly concerned, and I think the Committee needs to 

be concerned, not whether the two gentlemen who spoke here are 

going to abuse this act, but who could reasonably use this act to 

abuse power in the future. So it isn’t just sufficient for us to come 

forward—especially when this has only been an act for two and a 

half years, and only one administration—to be able to find actual 

horror stories of how this has been abused. But we need to think 

in the future, the implications that this act might have on other 

administrations, which brings particular concern to me. 

The Fourth Amendment should not be easily set aside, and I 

know you don’t want to do so. It strikes an important balance between the Biblical concept that it is equally detestable to acquitthe guilty as it is to condemn the innocent. I think the PATRIOT 

Act, in several areas, improperly tips this balance and it needs to 

be reevaluated. 

The fact that health records, employment records, financial 

records, and firearms even themselves could be seized without any 

individual suspicion that that person who it is seized from has committed any crime at all, that is certainly of a concern. It is also of 

a concern that under Section 213 you may never know that your 

items have been looked into, computer files and so on. 

And it is not sufficient just to say that a judge reviews it. We 

both know Federal judges are busy. They don’t have time to review 

all the different investigative files. But under traditional criminal 

law enforcement, there was a criminal investigation file that would 

have to be filed showing that these people were alleged to be involved in criminal activity. I don’t believe we have that same or 

similar individualized suspicion under the PATRIOT Act, and I 

think that that also needs to be dealt with. 

There’s also, of course, the catch-all provision regarding the delay 

that prosecutors may use. My concern is that, again, prosecutors 

30

are busy. Judges are busy. This can be used I think far too frequently. There needs to be safeguards put in place on that. 

I have no doubt that ‘‘sneak and peek’’ searches authorized under 

the PATRIOT Act are efficient tools. However, I would rather be 

hampered by the burdens of freedom than shackled by the efficiency of tyranny, and I think we need to look at that carefully to 

see how these could be applied. 

Of crucial importance to conservatives regarding the PATRIOT 

Act is how it might be co-opted in future administrations. I’m not 

concerned particularly on how President Bush might use this. I 

know he has a heart and soul that wants to fight terrorism. However, it was suggested, and there may have been some evidence 

that Attorney General Janet Reno may have used even the RICO 

laws to inappropriately target pro-life organizations, even though 

they weren’t involved in criminal activity. But they were using the 

racketeering laws as justification to do that. 

This Act broadens that even more. We need to look at what potentially could happen under future administrations to target prolife, pro-defensive marriage organizations, and pro–Second amendment organizations because they could be politically thought of to 

be somehow involved in terrorism inappropriately. 

I, for one, would not trade my liberty today even if you could tell 

the American people that we could stop all and avoid all future terrorist acts. And I know we can’t. The most dangerous and formidable foe to tyrants throughout the ages has always been those 

who are truly free, because they have something to live for. It’s 

such courage that caused Patrick Henry to say, ‘‘Give me liberty or 

give me death.’’ 

We, as a nation, have been entrusted by those before us to preserve liberty. Let us not forget the words and actions of our Founding Fathers by setting aside these principles for which they paid 

the ultimate price. For our country and our childrens’ sake, let us 

boldly wage the war against terrorism as free people and with our 

liberty intact. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Mylar appears as a submission 

for the record.] 

Chairman HATCH. Thank you. 

We turn to Commissioner Flowers now. 

STATEMENT OF ROBERT FLOWERS, COMMISSIONER, UTAH 

DEPARTMENT OF PUBLIC SAFETY, SALT LAKE CITY, UTAH 

Mr. FLOWERS. Thank you, Mr. Chairman. 

It is an honor to be here and sit at the table with such diversity 

of opinion. Ms. Eyer and I will be debating much on the MATRIX 

program because we have different takes on it. I’m eagerly awaiting the debate, almost. 

I would like to take a moment and express my appreciation to 

you about the Olympic games. Most people don’t understand what 

we went through during that time, and we were able to use you 

to get into doors we weren’t able to get into otherwise. People just 

don’t know what unraveling times they were for me and my staff. 

And your leadership, the private meetings I was able to hold with 

you, and I knew you were extremely busy, and I just want to acVerDate 0ct 09 2002 15:46 Apr 05, 2007 Jkt 033418 PO 00000 Frm 00034 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\33418.TXT SJUD1 PsN: CMORC
31

knowledge that publicly because I haven’t had a chance to do that 

in a meaningful forum. 

Chairman HATCH. Appreciate that. 

Mr. FLOWERS. I’d like to read a portion of my statement for 

time’s sake. 

Chairman HATCH. When this goes red, you are supposed to stop. 

Mr. FLOWERS. I don’t have a problem with that. As a public safety official, I have become increasingly concerned with the continual 

attacks on an effective and much-needed law enforcement tool. It 

seems to me the critics of the Act may not have an understanding 

of the challenges law enforcement faces on a daily basis. 

The Utah Department of Public Safety is tasked with the responsibility of addressing issues of prevention, response, and mitigation 

in fighting the war on terrorism locally. These three terms when 

spoken in bureaucratic sentences seem to lose power. I translate 

those terms into protect, protect, and protect. This becomes a very 

powerful charge from the citizens I serve. 

I have been charged with the responsibility to protect the citizens 

of the state of Utah, a role that I accept. However, with that responsibility must come the ability to do that. The PATRIOT Act 

takes a major step towards giving law enforcement the tools it 

needs to protect the public. The ability to gather, analyze, and 

share information so critical to our charge is essential. Our success 

of prevention, response, and mitigation will largely depend on our 

ability to gather, analyze, and share information. Which, at every 

hearing you watch, information sharing and the ability to gather, 

it seems to be the center of a lot of that. 

Our enemies have moved among us, even here in Utah, using our 

very laws to hide, gather resources, and then turn those resources 

upon us in an effort to destroy us. They use asymmetrical tactics 

that will require extraordinary efforts previously unknown inside 

the United States. While some merely want to debate the efficacy 

of the PATRIOT Act, law enforcement doesn’t have the luxury to 

sit and wait while discussions rage on. The tools provided in the 

PATRIOT Act today to enable us to address the critical issues of 

public safety are of most importance. 

There’s a couple things I would like to talk about from personal 

experiences I have had with this with the breakdown. Several 

years ago when I was the police chief in St. George, we were dealing with the White Supremists. And I met with two groups of individuals from the FBI. And one was the intelligence aspect of it and 

one was the criminal investigation. I did not know at that time 

that the two did not speak. 

And I remember we had quite a bit of information. It was quite 

an ugly investigation we had going on. Personal threats to members of our community. I had my lawn killed and a number of 

things by these individuals. 

When I went to gather information, try to get information from 

agencies, the FBI agents, whose hearts are of gold and wanted to, 

said, ‘‘We simply can’t give you that information because of the 

criminal investigation.’’ A concept that I did not understand at that 

point. 

Another time I was, as part of the same investigation, I asked 

an individual a question, I had received information from this 

32

group. And he was surprised that I was talking to the intelligence 

group because he was in another part of this particular organization and there was not a lot of contact going on between us. So I 

found that disturbing, but I found out later that was by design. 

That’s the wall that we talked about. 

During the Olympic Games we had our intelligence infrastructure and we had our criminal investigation, and they had to be 

kept separate. We couldn’t even go in the same rooms, and I 

thought that was not a good way to run a security operation. 

Since the PATRIOT Act, we are doing things we have never done 

before. We are sharing information, sitting around the room. I talk 

almost weekly with our Assistant Attorney General and Chip 

Burris of the FBI. And it has worked extremely well. 

My point is this: I understand the debate. It’s a good one and 

needs to be had. And we need to come to some conclusion on this. 

But if the PATRIOT Act is not reinstituted, I can’t imagine the environment we will be in if we have to go blind in the new environment that we are in. So anything that I can do, any place that I 

need to go, I will be willing to do that. Thank you. 

[The prepared statement of Mr. Flowers appears as a submission 

for the record.] 

Chairman HATCH. Thank you, so much. 

Mr. Bradley. Turn to you. 

STATEMENT OF SCOTT BRADLEY, EAGLE FORUM, SALT LAKE 

CITY, UTAH 

Mr. BRADLEY. Thank you. Appreciate the opportunity to present 

thoughts on this critically important issue. My name is Scott Bradley. I’m speaking on behalf of the Eagle Forum. And I have previously submitted, as you are aware, an expanded version. 

Chairman HATCH. We will put all the expanded versions, as written, into the record. 

Mr. BRADLEY. Thank you. 

It is from a historical perspective and that of the foundation 

principles that the nation was originally founded upon that I express concerns about the USA PATRIOT Act. Due to their personal 

experiences, the founders of this Nation sought to forestall the 

tendency of government to overreach its proper role. They carefully 

crafted a government which had a clearly defined scope and balance. 

For example, the Fourth Amendment was a direct outgrowth of 

search and seizure abuses experienced under the British rule in 

the colonial era. During that period of time, Writs of Assistance 

were general warrants carried by officials of the British government which allowed them to enter a premise, search for anything 

they felt might be against the law, to seize any unlawful material 

they discovered, and arrest anyone they suspected might have 

some connection to the matter. 

To counter and protect against this form of tyranny, the Fourth 

Amendment was ratified. By it, the founders wished to prevent any 

future similar violations, so they required extreme specificity in the 

warrants which might be issued by government officials. 

Unfortunately, it may seem that there are parallels between the 

writs of the 1700’s and the powers inherent in the PATRIOT Act 

33

of today. In both spirit and letter, it may be argued that the PATRIOT Act has stepped away from the exact requirements and 

specificity called for in the Fourth Amendment, and seems to open 

a path which could lead America to a circumstance in which modern day Writs of Assistance become common instruments of investigation and potentially destroy God-given rights. 

A full review of concerns of the PATRIOT Act would require a 

document exceeding the size of the Act itself. Perhaps a few general examples may suffice today. 

One, the Act dramatically expands Federal Government powers 

of surveillance, search and arrest, and sets potentially harmful 

precedence for future encroachments on personal liberties. Some of 

these expanded powers may be unconstitutional and would likely 

have been found so in another day and time. 

Two, the Act greatly expands the legal use of ‘‘black bag’’ 

searches in that there are broad powers granted to police agencies 

to conduct secret searches without notifying the subject of the 

search until after the search was conducted, if at all. This power 

appears to extend to all suspected criminal circumstances, not only 

to potential acts of terrorism or war. 

Three, roving wiretaps, which allow investigators to tap multiple 

telephones used by a suspect, may now be carried out nationally 

on a single court order. Previously such wiretap orders were generally allowed only in a jurisdiction of a judge issuing the order 

and were subject to constraints which reduced the potential that 

abuses would occur. 

And four, the Act also allows the CIA to access foreign intelligence information obtained by domestic grand jurys, as well as 

other information obtained through investigations and by law enforcement agencies, effectively creating an environment in which 

the CIA could spy on American citizens in violation of long-standing U.S. policy. 

Overall, the PATRIOT Act limits and reduces judicial oversight 

in the gathering of evidence, diminishing the distinction between 

the gathering of foreign intelligence and domestic law enforcement 

and allows many of these provisions to be allowed not just against 

foreign agents of foreign governments or against terrorists, but in 

many cases against citizens of the nation who may, under some 

construction of law, be deemed a threat. 

It would seem that other better ways are available to the nation 

to deal with threats as they face us in this dangerous world. Those 

ways would include more diligent protection of our borders from potential threats and those who would enter or who have entered illegally. It is tragic that the nation’s lax immigration and visa policies 

gave the terrorists who attacked the nation on September free access to target our citizens. It appears that at least 15 of the 19 hijackers should never have been issued visas to the United States 

if consular officials had diligently followed the law. 

It is incomprehensible that a nation which is at war with terrorism and has been victim to a vicious attack has not taken the 

most simple and logical steps to protect our borders from future potential attacks. And the argument could be made that we are taking steps to create even less secure borders, making overtures 

34

which will likely encourage that type of illegal entry into the nation. 

The solution to terror, as it has been thrust upon us, is not to 

destroy the liberty of loyal Americans but to interdict those who 

would bring that threat upon us. Perhaps this issue may be reviewed in greater detail in a future hearing. Please consider these 

concerns as the PATRIOT Act is reconsidered. 

Thank you very much. 

[The prepared statement of Mr. Bradley appears as a submission 

for the record.] 

Chairman HATCH. Thank you, Mr. Bradley. 

Mr. Turpen. We will take your remarks. 

STATEMENT OF AARON TURPEN, LIBERTARIAN PARTY OF 

UTAH, SALT LAKE CITY, UTAH 

Mr. TURPEN. Thank you for having me here today. My name is 

Aaron Turpen. I’m the Secretary of the Libertarian Party of Utah. 

I’ve submitted a written statement and I’ll let that stand on its 

own. Instead, I want to speak to you, and through you, the Committee, personally just as a concerned American citizen. I will be 

very frank. I will be very forthright. I won’t mix a lot of words. 

That doesn’t mean I’m going to swear at you, though. 

Chairman HATCH. You wouldn’t be the first one to do that. 

Mr. TURPEN. I noticed today, once again, the group that we have 

here and the wide breadth of people that we have represented 

today. I find myself sitting next to Mr. Bradley—Gail Ruzika is 

someone I have argued with more than once on several issues. 

Chairman HATCH. How did you make out? Maybe I shouldn’t use 

the words ‘‘make out’’, but how did you get along? 

Mr. TURPEN. I think the trick is the louder voice. 

I did want to note a few things. I listened to the testimony of the 

two attorneys at the beginning, and I applaud what they are doing. 

But I believe that part of the problem around the PATRIOT Act 

and part of the problem in general that we are having is that, as 

Henry Thoreau said, we are striking at branches instead of the 

root. I believe that what we need to really be looking at is what 

the root of the problem is, not what can we do to fix all these symptoms that are happening. 

In doing that, I would say that we have to look at ourselves as 

a nation. We have to look at our government as what it is and the 

power that it has. And we have to wonder did something happen, 

did something go awry? Do we need to fix something there? Is our 

reaction to create more laws really the proper reaction? Should, instead, we be looking at the fundamentals of what we are doing and 

reconsidering what we have done to fix the basic problem that is 

happening, rather than just adding more to it? 

In thinking about that, I carry this around with me, the little 

‘‘Citizens Rule Book’’. In this book is a copy of the Constitution and 

the Declaration of Independence and several other things which are 

very useful. I would recommend that they hand these out in school 

because, in reading this, I started to understand that the government, according to our Constitution, has very specific and limited 

powers. And I believe that part of the problem is that possibly the 

35

government has overstepped those powers or has used them in a 

way that maybe it shouldn’t have. 

I have read a lot of things in my thirty years on this planet, and 

one of the things I read, the book The People’s Pottage, by Garet 

Garrett, I walked around and I talked to several people. I happen 

to live in a neighborhood that has two or three old folks’ homes. 

I went and talked to these people. People who are old enough to 

remember the 1930s and even the 1920s. And in talking with them, 

it was reinforced what I read in this book—that in the 1930s it was 

common to refer to it as ‘‘our government’’. And sometime between 

then and now it has changed. We refer to it as ‘‘the government’’, 

as if it is separate and an entity to its own that is going to—or that 

exists whether we like it or not. 

And in looking through the PATRIOT Act and looking through 

several of the provisions again in my written statement, I found 

that I was appalled, as a libertarian, at some of the powers that 

the government has. You quoted earlier Thomas Jefferson, and it’s 

a very astute quote. I’m very glad that you brought it up because 

as you know—the Libertarian Party would be called the Jefferson 

Party if we were to rename it right now. 

Thomas Jefferson was one of the most instrumental people in 

this Nation. And something that he said, and I will paraphrase it 

a little bit but, something that he said is, ‘‘I do not add within the 

limits of the law.’’ He is talking about liberty and the—I’ll just do 

the whole thing: ‘‘Of liberty I would state that, on the whole plenitude of its extent, it is unobstructed action according to our will. 

But rightful liberty is unobstructed action according to our will 

within limits drawn by the equal rights of others. I do not add 

‘within the limits of the law,’ because law is often but the tyrant’s 

will, and always so when it violates the rights of an individual.’’ 

So all I ask the Committee, and you specifically, Mr. Chairman, 

all I ask that you do is that you look at the PATRIOT Act and you 

consider it from your personal perspective as a citizen of the 

United States—not as a Senator, not as a chairman, just as a regular Joe. Consider it and think, ‘‘Is this going to violate me? Is it 

going to hurt my individual sovereignty?’’ If anything in the PATRIOT Act is going to do that, then I would ask that you throw 

it out. That’s all I ask. Thank you, sir. 

[The prepared statement of Mr. Turpen appears as a submission 

for the record.] 

Chairman HATCH. Thank you, Mr. Turpen. Appreciate you being 

here. 

Mr. Cohne, your testimony. 

STATEMENT OF BRUCE COHNE, CHAIR, UTAH ADVISORY COMMITTEE TO THE UNITED STATES COMMISSION ON CIVIL 

RIGHTS, SALT LAKE CITY, UTAH 

Mr. COHNE. Thank you. It’s a pleasure to be with you here this 

morning. 

I have learned much since I got the invitation to speak here 

today, but one thing I have learned is that I have to make another 

disclaimer in addition to all the disclaimers in my written statement. I have to affirmatively disclaim that I am not speaking on 

behalf of the United States Commission on Civil Rights. 

36

Chairman HATCH. Make sure your mike is on. 

Mr. COHNE. Is that okay? I’ll start over. 

One disclaimer I have to make is that I’m not here on behalf of 

the United States Commission on Civil Rights. I am only speaking 

as Chairman of the Utah Advisory Committee to the United States 

Commission on Civil Rights. 

There is much good in this legislation as was pointed out earlier. 

Part of what is good is the inter-agency cooperation and the ability 

to share information has come out from the 9/11 Commission hearings. This was a fatal gap in our intelligence. 

However, like any piece of legislation, there is much to look at 

in this legislation. This legislation was carefully drafted and is impossible for the average citizen to read, you cannot read this piece 

of legislation as a single act. As a matter of fact, it is not a single 

act. It is two acts in one. And one is Section 3. 

Section 3 of this Act is the International Money Laundering 

Abatement and Anti–Terrorist Financing Act of 2001. This portion 

of the Act imposes tremendous costs on our commercial estimate. 

If you talk to people in banking and in the finance industry, trying 

to comply with these provisions are extremely expensive and onerous. And it should be looked at in terms of the cost to commerce 

that these provisions create. 

Secondly, the Act itself needs a little bit of tweaking. And because of what was said earlier, I have proposed two amendments 

to the Act, to be specific. First of all, Section 215 in the Act is actually an amendment of 501 FISA of 1978. I would suggest that in 

light of what you were stating earlier, the issue of probable cause, 

I would suggest that the Act be amended in section C1 of 501 FISA 

to read as follows: ‘‘Upon an application made pursuant to this section, the judge, upon a showing of probable cause, shall enter an 

ex parte order as requested or as modified, approving release of 

records if the judge finds that the application meets the other requirements of this section.’’ 

What this does is eliminates certain language and opens us up 

to the probable cause standard, which currently does not exist. The 

section reads, ‘‘Upon application made pursuant to this section, the 

judge shall enter an ex parte order.’’ There is no discretion on the 

judge. And if I’m right, and I’m not a criminal lawyer, and if you 

don’t do your first criminal case you can’t do your second, so I’m 

somewhat at a disadvantage here. But if I’m right, this is not an 

order issued by any ordinary court. It is issued by a court under 

the FISA. And therefore, the probable cause standard being applied 

here would apply across the board, and I think that’s appropriate. 

Your statements to the two gentlemen earlier indicated that you 

felt it was a probable cause standard. They were both very careful 

not to use the term ‘‘probable cause’’ but ‘‘upon an order by affidavit’’. And there’s a world of difference, as we both know. So that 

would be my amendment to Section 215. And Section 501 of FISA. 

The other section, which has not been discussed at all today, and 

I’m glad there’s something left to discuss that nobody else has, and 

that’s Section 802. 802 currently reads as follows. In defining domestic terrorism it says, ‘‘Engaging in that activity,’’ excuse me, 

‘‘activity that involves acts dangerous to human lives that violates 

37

the laws of the United States or any state and appear to be intended,’’ and then goes on to modify. 

I would suggest that three words be added, and one word deleted. I would suggest that the section be amended to read, ‘‘Activity that involves acts inherently dangerous to human life that violate the criminal laws of the United States or any state and are 

calculated to,’’ deleting the word ‘‘appear’’. This would tighten up 

the statute. 

As it currently reads, it is a violation of any criminal law. This 

would mean that those people who would be terrorists by this definition could easily have been the Kent State University students. 

And they did engage in an activity that was dangerous to life, particularly theirs. This would involve those picketing outside of abortion clinics. This would make them potentially terrorists, because 

by their very nature they are interfering with actions that may be 

dangerous to human life, by their own definition. 

So I suggest that these two sections be amended, and in reviewing the sunset provisions to this Act that we look at the report 

from the 9/11 Commission and then act with the light of day shining upon this Act. Thank you. 

[The prepared statement of Mr. Cohne appears as a submission 

for the record.] 

Chairman HATCH. Appreciate your statements. Mr. Collins, you 

are going to wrap up. You may want to talk about your viewpoints 

of all of the suggestions and criticisms that have been made. And 

we would be happy to hear whatever you want to say. 

STATEMENT OF DANIEL P. COLLINS, MUNGER, TOLLES & 

OLSON, LLP, LOS ANGELES, CALIFORNIA 

Mr. COLLINS. Sure. 

Chairman Hatch, I thank you for the opportunity to testify here 

today. The Congress has few responsibilities that are more weighty 

than ensuring that the men and women who work day in and day 

out to detect and prevent terrorism have the tools that they need 

to get the job done and to get it done in a way that enhances both 

security and liberty. 

My perspective on these matters has been formed by my prior 

service in the Department of Justice. Though this isn’t my first 

time to Salt Lake City, I am not from Utah, but I’m glad to be back 

here again today. 

Most recently I served as an Associate Deputy Attorney General 

in the office of Deputy Attorney General Larry Thompson and I 

also, during my time there, served as the Chief Privacy Officer of 

the Justice Department responsible for coordinating issues concerning privacy policy. I have also served as a Federal prosecutor 

in Los Angeles and also in the Department’s Office of Legal Counsel. I caution that the views that I offer today are solely my own. 

The PATRIOT Act was passed in October, 2001, by an overwhelming bipartisan majority and yet since that point, it has become the subject of, what is to me, somewhat surprising controversy. One of the speakers said that it has become a symbol. I 

think it may be a little bit more accurate to say it has become a 

cartoon. A lot of comments that are made either attribute things 

to the Act that are not there, misdescribe provisions that are in 

38

there, or misunderstand the provisions and the protections that are 

in there. 

In my view, the criticisms that have been made of the Act do not 

withstand analysis. On the contrary, I think that the Act represents a measured, responsible, and constitutional approach to the 

threat of terrorist activities conducted in the United States and 

against American citizens. 

Before I turn to specific provisions, I’d like to make a couple of 

points about general issues, policy principles that, in my experience 

in the Department, were important in looking at issues of privacy 

policy. First is absolute unwavering fidelity to the Constitution. 

The challenge of terrorism today, as many have said, requires us 

to think outside the box, but not outside the Constitution. We all 

start with that assumption. No one is questioning that. 

Second, I think it is important to keep in mind that we are not 

talking about a zero sum game. I think too many of the comments 

that are made reflect the view that anything, any enhanced authority or any enhanced power that is given to law enforcement is necessarily a reduction in civil liberties. 

I think it is plain that things needed to be done differently. 

Things needed to be changed after 9/11. And the question is how 

to change those in a way that allows the job that needs to be done 

to get done in a way that is respectful of civil liberties. 

Third, I think it’s important we keep in mind that not all privacy 

interests are of the same magnitude and weight. You need to consider the context and the nature of what is at stake. 

Fourth, privacy is an important value but it’s not the only value, 

and that’s part of the challenge of the task here. 

Fifth—and I think this is a core point, and it’s a core point that 

underlies a lot of the provisions of the PATRIOT Act—if it is good 

enough for fighting the mob, it’s good enough for fighting terrorism. 

For me is that a categorical principle. It is irresponsible to allow 

a law enforcement or intelligence tool to be used for other purposes 

and not allow it to be used for fighting terrorism. There is no justification, I think, for such disparities. And much of the provisions 

of the PATRIOT Act can be explained by that simple principle. 

And then six is the importance of technological neutrality. We 

live in an age of emerging technology and those who are seeking 

to do harm to us take advantage of it and try and use it to their 

benefit. We need to try and ensure that the law keeps up with 

technology so that there isn’t a technological gap, so that the criminals will have a leg up, or the terrorists will have a leg up. And 

that, I think, explains a lot of the provisions in the PATRIOT Act. 

I’d like to focus specifically, and I know a lot has been said on 

it, on Section 215, because I think it illustrates an important point 

about the PATRIOT Act. We have two primary sets of laws that 

give us tools for fighting terrorism. One is the traditional criminal 

law regime. Most terrorist acts are crimes, and therefore that 

whole regime is there. But there’s also intelligence tools that are 

available, and those are critical. And one of the key lessons that 

has come out of 9/11 is that those worlds need to speak to one another. 

But there also needs to be parallelism. Tools that exist on the 

law enforcement side should have analogs on the intelligence side, 

39

so that when a law enforcement predicate may not be available, the 

tool can nonetheless be used. That’s why there are provisions about 

searches in both of those regimes. There’s search provisions under 

FISA and there are on the criminal side. There are provisions for 

electronic surveillance on both sides. 

Where there was a real gap was in access to business records. 

On the criminal side there is fairly broad access to criminal 

records, but there was not on the intelligence side. And Section 215 

simply adds, in a much more restricted fashion than exists on the 

criminal side, an ability to get records, business records that may 

be necessary in the course of conducting an intelligence investigation. 

So in summary, I think that the PATRIOT Act reflects, as I said, 

a measured and constitutional approach to try and improve the 

tools so that we can fight terrorism, and I wholeheartedly endorse 

that all of the provisions be made permanent. Thank you. 

[The prepared statement of Mr. Collins appears as a submission 

for the record.] 

Chairman HATCH. Thank you. I personally appreciate each and 

every one of you for the efforts you have put forward in appearing 

here today, and expressing your particular points of view. We have 

had a lot of hearings on this and we have had a lot of discussions. 

We have had a lot of various people come in. And we have analyzed 

an awful lot of differences among various groups in trying to come 

up with what the PATRIOT Act ought ultimately to become. 

Mr. Collins, let me start with you. You mention, in your written 

testimony, the importance of laws that are, if I recall your testimony correctly, quote technologically neutral, unquote. Could you 

elaborate for us what you mean by the concept of what the PATRIOT Act does to implement that. 

Mr. COLLINS. I think, let me talk about a provision that— 

Chairman HATCH. One of the questions, I want to get it off my 

chest while I’m thinking about it, could you address the concerns 

we hear from many that the PATRIOT Act lowers the standard of 

the supervision of the courts in granting various search warrants 

that are permitted. 

Mr. COLLINS. Yes, Senator. 

Chairman HATCH. If you could answer those two questions, that 

would be helpful. 

Mr. COLLINS. With respect to technological neutrality, I think it’s 

best addressed by discussing a section which has not been mentioned today, which is Section 216. 216 is what amended the pen 

register provisions that exist in current law, so that they more 

clearly apply to other technologies. 

A pen register is a device that records the numbers dialed on a 

telephone. The Supreme Court has made clear that there is not the 

same expectation of privacy in who you are calling or the number 

you are calling on a telephone as there is in the contents of the 

communication, in the same way that an address on an envelope 

is not protected by privacy in the way that the contents of the envelope are. 

Well now so many people communicate by e-mail or other forms 

of electronic communication, and there’s a need to have an ability 

to make the same kind of connection—again technological neuVerDate 0ct 09 2002 15:46 Apr 05, 2007 Jkt 033418 PO 00000 Frm 00043 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\33418.TXT SJUD1 PsN: CMORC
40

trality—do exactly what you can in terms of postal letters and in 

terms of telephones with e-mail, so you can follow address information without looking at content. And that’s what 216 does. 

Several courts, prior to the enactment of Section 216, had granted pen register orders in the context of electronic communications, 

reasoning that the statute or authorities that were already available applied to that. But Section 216 removes any question or legal 

cloud that may have existed there and makes clear that the pen 

register provisions apply to all of the technologies. And again, it 

strengthens, actually, 216 actually has pro-privacy provisions in it, 

making very clear that content may not be collected. And I worked 

on a directive that was issued by Deputy Attorney General Thompson to provide concrete guidance enforcing that specific directive. 

It also puts in special provisions to deal with the use of government installed technology, the so-called Carnivore debate. There 

were specific provisions drafted by Representative Armey who was 

concerned about that issue that imposed very stringent court supervision on those types of methods. 

I was disheartened to see that that is one of the provisions that 

would be sunsetted in the SAFE Act. And I am incredulous at that 

suggestion. The Internet has shown no danger of going away. 

There will be a need to be able to do on the Internet what is done 

with telephones and letters. And that is what I mean by technological neutrality. 

Chairman HATCH. We live in a technological world and we can’t 

ignore it. These are important provisions. But what about the concern I mentioned that many believe the PATRIOT Act lowers the 

standards in the supervision of the courts in granting various 

search warrants that are permitted? 

Mr. COLLINS. The PATRIOT Act does not alter the standards for 

search warrants or for electronic surveillance under the wiretap 

statute at all. It adds certain predicates to the wiretap statute. 

Those are subject to sunset. I think there should be no question 

that they should be made permanent. 

I also had the privilege, while I was in the Department, of working on the Protect Act where quite a few statutes were added permanently to the wiretap list on child pornography. And again, this 

principle of equivalence; if it is good enough to fight child pornographers, it is good enough to fight terrorism. There should be no 

question that that should be permanent. But the substantive 

standards are unaffected. 

Chairman HATCH. As you know, I’m one of the authors of the 

Protect Act, and that has been called by some the most important 

criminal law in the last year. It gives us the modern tools that we 

need to go after these people. 

Well, let me ask everybody here, I will start with you, Ms. Eyer, 

and go across the board a minute. Current President Bush last 

night emphasized the importance of removing the pre–9/11 legal 

barrier that effectively prevented sharing of criminal investigation 

between the FBI and CIA. I think Attorney General Comey made 

that same point here today. 

Now, does anyone in this panel believe that the provision—and 

I would just kind of like to have yes and no and if you want to extend we will give you some time. Does anybody on this panel beVerDate 0ct 09 2002 15:46 Apr 05, 2007 Jkt 033418 PO 00000 Frm 00044 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\33418.TXT SJUD1 PsN: CMORC
41

lieve that the provision of the PATRIOT Act Section 203, that removes the wall that exists, is an unjustified threat to civil liberties 

and should be repealed? 

Ms. EYER. The ‘‘yes’’ and ‘‘no’’ part is problematic. Listening to 

the hearings, as well, I believe that there is a reason for that wall 

to be a little less substantial between intelligence and criminal investigations. 

Chairman HATCH. That’s the problem. How less substantial? 

Ms. EYER. The devil is in the details. I did hear as recently as 

this morning the staff report from the CIA testimony did mention 

that they thought the barriers that were even larger were the cultural and bureaucratic barriers, rather than the smaller legal barriers. 

Chairman HATCH. They are both barriers, though. 

Ms. Benowitz. 

Ms. BENOWITZ. I don’t have the legal mind that most members 

of this panel do. 

Chairman HATCH. You’re doing all right. 

Ms. BENOWITZ. But as a layman, I would wish that communication would always be open and there would be no barrier between 

the investigation of the CIA and the FBI. I did hear, I thought yesterday, that the law had been misinterpreted for twenty years. I 

don’t know whether that is relevant or not. But I would hope that 

there would not be a wall. 

Chairman HATCH. Thank you. Frank? 

Mr. MYLAR. Again, I feel a little bit of a yes/no, I agree that that 

had a huge impact on our ability to try and counter what happened 

on 9/11. There’s no question about it. 

Chairman HATCH. As a member of the Intelligence Committee, I 

see all the time certain very restricted materials. And I have to say 

had we been able to match them between the agencies, we would 

have had a better chance to deal with these people. I tell you. So 

that’s what is behind this. 

Mr. MYLAR. And I completely agree with that. My concern is 

there’s been a traditional aversion to the concept of having the CIA 

investigate U.S. citizens on U.S. soil. I think that we do need to 

be careful and look at what kind of protections we can have to prevent also what I alluded to a minute ago, and Mr. Cohne did a good 

job of specifying that a little bit more, as to how this can be misapplied by future administrations in targeting groups that are not 

politically in line with the current administration. 

There has to be something to be able to very much define what 

is a terrorist act and what is an appearance of a terrorist act and 

these types of situations. I think we need to be very careful and 

may need to keep scrutinizing that to see where those potential pitfalls are. 

Chairman HATCH. Well, you are talking about scrutinization, we 

all have to do our duty to oversee whatever criminal laws there 

are. And that’s a good point. No question. And this law has to be 

overseen, as well. One of the reasons why we are all in these hearings, we had some suggestions here today. We will look at all of 

them and consider it. 

Mr. Flowers. 

42

Mr. FLOWERS. As a user of the information and as a state representative, everything we do, every plan we make is based on the 

accuracy of information that we receive. I’m disturbed by the wall 

that was put up. I keep asking myself why? Why a wall? Is it to 

protect abuses? What is that all about? But when it is all said and 

done at the end of the day, it is about the citizens we are trying 

to protect. 

Chairman HATCH. The wall was put up because some people in 

administrations didn’t trust law enforcement. 

Mr. FLOWERS. The term ‘‘trust’’ is an interesting one on me. You 

have to break it down into what trust is. I have been doing research about the cultural barriers in Utah that have been keeping 

us from that sharing today. I’m finding that the cultural issues 

should be receiving as much attention as the laws because I think 

you can bring two people together who want to work together, but 

you can throw a million dollars at something and if the groups are 

not willing to come together you are wasting your resources. So it 

is an interesting thing for me. 

But I have seen the improvement firsthand. I am one of the ones 

that are actually on the ground floor doing this sort of thing. And 

I can’t tell you the benefit of being able to have this kind of marriage of law enforcement and intelligence information. And I think 

it’s the way we must go. I’m not sure we have much choice in the 

matter. 

Chairman HATCH. Thank you. 

Mr. Bradley. 

Mr. BRADLEY. I have grave concerns about the reduction of that 

barrier. And much of it goes back to the historical perspective of—

I usually try and take it in regards to the American perspective. 

Free societies don’t build dossiers on their citizens. And historically 

Americans have been loath to consider the fact that their government may not leave them alone to perform what freedom allows 

them to perform. 

I’m concerned that as we blur the lines between the international 

intelligence gathering community and law enforcement, that the 

potential exists for future abuses. It would be very difficult to document those abuses at this point because the act itself precludes the 

making public of those kinds of things that have occurred, or may 

have occurred. 

Chairman HATCH. The Act actually makes law enforcement have 

to report every year on various aspects of the Act at certain times. 

Mr. BRADLEY. The Congress is supposed to get reports. I’m not 

sure if they have. I’m not present there. But what I’m referring to 

is the fact that— 

Chairman HATCH. I have been informed by counsel that so far 

we have received all the reports that the PATRIOT Act says we 

should receive. 

Mr. BRADLEY. Okay. That is positive. 

Chairman HATCH. I don’t mean to keep interrupting you, but I 

want to clarify. I agree with you: Our government should not be 

making dossiers on the American citizens. And that is not what the 

PATRIOT Act does. Nor does it permit that. 

Mr. BRADLEY. But it does encourage a diminishment, in spite of 

what the attorney at the end was saying, is it Mr. Collins, would 

43

have us believe. In particular, when he turned to Section 216, he 

indicated that there was the same protections on search warrants 

and so forth. But having read 216, and of course I have read the 

whole document from end to end, in all of its glory, there are numerous locations where it says, ‘‘Shall issue upon certification by 

the law enforcement officers before a judge.’’ It is a ‘‘shall issue’’ 

circumstance, wherein the judge shall issue if they certify to him 

that it is part of an ongoing investigation. There’s no probable 

cause required in so many instances. There are in some, I admit. 

I admit. 

But those instances where the circumstance of allowing police 

agencies to have access to things based on a rubber stamp, for lack 

of a better term. I know that’s been thoroughly debunked by the 

individuals that spoke previously, that they thought all judges 

were pretty hard to get things through. But when they have a law 

before them wherein the Congress has mandated that they shall 

issue authorization upon certification, that this act that they are 

going to do is necessary for an ongoing investigation, that has some 

concerns. 

And I have strayed far from what you said. This section 203, I 

do have concerns about. I am concerned that it may at some point 

be abused. I don’t know if that has ever been abused at this point 

and I guess we need to be careful with how we go forward with 

that. 

Chairman HATCH. We have to make sure the provisions aren’t 

abused, and that is the job of government and people like myself, 

and we take it seriously. But that is true of every criminal aspect. 

Mr. Turpen? 

Mr. TURPEN. I would agree with Mr. Bradley. I believe he 

summed it up pretty well. What I would add to that is, I have a 

pretty healthy suspicion of government on the whole, and in my 

view I believe that there should be more people in government 

watching government than there are watching anything else. 

Chairman HATCH. Don’t worry, there are a lot. I’ll tell you. And 

I’m one of them. 

Mr. TURPEN. My biggest problem with the idea of lowering the 

barrier as was covered by Mr. Bradley; that eventually CIA 

operatives or NSA or any intelligence group may begin to watch 

United States people. And that, to me, it’s Orwellian and it 

shouldn’t happen. 

But I do trust that we have elected people to office and their job, 

or part of their job, is to watch what these agencies are doing. And 

I believe that as long as that is continuing to happen, and as long 

as it is done honestly and fairly, that our butts are covered. 

I do want to ask, though, if I may, I have read some of the reports that were given from the Department of Justice—those that 

were publicized. Specifically under the PATRIOT Act, and I 

couldn’t tell you the title of it right off the top of my head, but it 

was a report I believe on warrants issued from the FISA court. And 

the report itself was less than half a page. In fact, as I recall, the 

letterhead took up more space than the actual report. 

According to that report, the FISA corporation had issued one 

hundred percent of the requested warrants of the court. And I just 

wonder if we have heard several times today that it is not a rubber 

44

stamp. And that tells me different. And I wonder if you have a perspective on that. 

Chairman HATCH. The reason that is so is because it goes 

through a series of layers by the time it gets there. And keep in 

mind the Moussaoui case. A terrible mistake was made because 

law enforcement people just were afraid it was a borderline case 

that they couldn’t really make the case and they would get chewed 

up for it. And I have seen cases where some of our people have 

been banned from the FISA court because they made over-representations. 

It is a tough process. By the time you get to the FISA court, you 

have gone through a lot of hoops. And you have gone through a lot 

of explanation. That doesn’t mean they can’t reject it. But it does 

mean that in most cases they are going to accept it. And frankly 

in the one case and in almost every case, they accepted it. But you 

go through a lot of hoops to get there. 

Mr. Cohne. 

Mr. COHNE. I would say there’s no absolutes. Conceptually, the 

exchange of information is healthy as it goes to fighting terrorism. 

As the Israelis have learned, you can’t stop terrorists who are determined to strike. 

Chairman HATCH. That’s right. 

Mr. COHNE. And this law is not going to stop terrorists who are 

determined to strike. It will help, but it will not stop anybody who 

is really determined to come forward. 

Chairman HATCH. It’s not a full guarantee. 

Mr. COHNE. But what it can do in the sharing, it will permit information to go across a jurisdictional line that was not available 

before. 

Chairman HATCH. Right. 

Mr. COHNE. I would feel more comfortable if it was up to the 

United States District Court judges and not a FISA court. The 

FISA court, in all due deference to the people enforcing it, smacks 

of Star Chamber proceedings in many of its proceedings. 

Chairman HATCH. Thank you. 

Mr. Collins, to sum up? 

Mr. COLLINS. I believe that it was critical. The most important 

feature of the PATRIOT Act was the removal of the ‘‘wall.’’ You 

cannot connect the dots when some of the dots are on one side of 

the wall and some of them are on the other. 

Some of the people who have spoken I think have confused the 

issue of information sharing and operational responsibility. Operational responsibility for gathering intelligence under FISA and 

other authorities within the United States continues to reside with 

the FBI. There’s been a debate over whether or not that should be 

moved, but that’s where it stays. The PATRIOT Act doesn’t change 

that. 

The FISA process, as Senator Hatch, you described, involves a 

tremendous amount of internal screening. It goes to a very high 

level within the Bureau itself, often to the Director personally. It 

then goes through a review from the Office of Intelligence and Policy Review in the Department of Justice. Ultimately, it must be 

personally reviewed and approved by either the Deputy Attorney 

General or the Attorney General before it goes to the FISA court. 

45

Chairman HATCH. And they take that seriously because they 

know they are going to get chewed up like you can’t believe if they 

make a mistake. 

Mr. COLLINS. That’s the process for physical searches and electronic surveillances. It’s a little different under the 215 process. 

But I did want to clarify that. 

I’d also like to respond to—and I should also note that the FISA 

court is composed of sitting Article III district judges who are chosen by the Chief Justice. So they are ordinary district judges who 

are tough as ordinary district judges are. 

I would like to also respond to one comment that misunderstood 

my prior response to you. It confused my answers to the two questions. I did not say that Section 216 had the same standards as 

search warrants. Pen registers have never been subject to the probable cause requirements of search warrants. The Supreme Court 

made that clear in the 1970s. I think it would be remarkable to say 

that for terrorism we will have a higher standard than the Supreme Court has stated for thirty years shall apply to this investigatory tool. I don’t fathom that. 

Chairman HATCH. In the case of pen register and trap and trace. 

Mr. COLLINS. Exactly. 

Chairman HATCH. This has really been good. I have to say I have 

enjoyed this whole panel. 

Let me just ask one other question. We have heard from the Department of Justice on the first panel, you have heard them describe the delayed notification, why the delayed notification, what 

some call ‘‘sneak and peek’’ search warrants, and the roving wiretap are important in preventing terrorists. Does anybody on this 

panel think that we should allow these provisions to expire with 

regard to terrorism? 

Mr. Bradley. 

Mr. BRADLEY. I appreciate the necessity— 

Chairman HATCH. Let me just finish the question so I can get 

all my thoughts out. If you can specifically comment on Mr. 

Comey’s comments on the inadvisability, I heard him say, about 

the seven day limit on delayed notification warrants. Why not simply leave that as a matter for the judge’s discretion, as Mr. Comey 

suggested? 

Okay. Mr. Bradley. 

Mr. BRADLEY. I’m sensitive to the rationale behind ‘‘sneak and 

peeks’’ that have been expounded upon here today. I must return, 

however, to a couple of basic principles, one of which is found in 

the Fourth Amendment. And if I may just simply quote the Amendment. And I’m not certain that this is always completely adhered 

to in the approach that’s been suggested within this document, the 

PATRIOT Act. 

‘‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall 

not be violated, and no warrants shall issue, but upon probable 

cause, supported by oath or affirmation, and particularly describing 

the place to be searched, and the persons or things to be seized.’’ 

I mentioned, in my opening remarks, the concerns about the 

Writs of Assistance and how this Fourth Amendment was an outgrowth of that. 

46

Chairman HATCH. Keep in mind the key word there is ‘‘unreasonable’’. 

Mr. BRADLEY. I agree. Unreasonable. Sometimes that is in a perspective, too. 

Chairman HATCH. Not so much in law enforcement. 

Mr. BRADLEY. We have an experience that the Founding Fathers 

lived through where the British government felt it was very reasonable to be able to enter and basically go on fishing trips whenever they thought they may have something to catch. The Founding Fathers were very, very careful in saying that they must be 

very specific, oath or affirmation describing the place to be 

searched, persons or things to be seized. And it is very difficult to 

have all of those things perhaps met. And if they are, I think that 

‘‘sneak and peek’’ is not nearly as dangerous as other people may 

think. 

However, there is one thing that can’t be done away with and 

that is that there are errors oftentimes where police agencies, 

there’s record of them going to the wrong address and going to the 

wrong location. And if there were those kinds of things occurring, 

I’m just wondering would the person be available to defend themselves in terms of how their privacy was violated, how their home 

was searched, how things may have been destroyed. There’s a 

whole bunch of things. But the fact of the matter is I think it’s important for individuals to be able to recognize that they have the 

right to face those who accuse them, and to correct if there’s wrong 

address. 

Chairman HATCH. They will. Anybody would. 

Ms. EYER. Senator Hatch, if I may? 

Chairman HATCH. Yes, Ms. Eyer. 

Ms. EYER. On the ‘‘sneak and peek’’ warrants, it’s my understanding that there’s a criteria that deviates from the original criteria of ‘‘flight from prosecution,’’ ‘‘destruction of evidence,’’ and 

‘‘physical safety’’ of a person in danger; that there’s another provision in the PATRIOT Act that says we can get these sort of indefinite warrants, not indefinite, but delayed notification warrants, 

also if it may ‘‘jeopardize prosecution.’’ It’s that terminology that 

we are a little concerned about. Because— 

Chairman HATCH. But you’re not for doing away with it. 

Ms. EYER. Well, it does seem like a more lenient standard— 

Chairman HATCH. Like I say, that’s one thing I appreciate about 

the ACLU; that they are not doing away with it. They want to 

make sure it works right. 

Ms. EYER. In fact, it’s that provision of ‘‘jeopardizing the prosecution.’’ And our suggestion of renewable seven day warrants, I think, 

is based upon the concept that a ‘‘reasonable amount of time’’ is 

such a squishy term that, for example, in the recent detainee matters, you can hold for the INS originally 24 hours and then 48 

hours and then 7 days. 

Chairman HATCH. That has nothing to do with ‘‘sneak and peek.’’ 

Ms. EYER. I understand. But the terminology ‘‘a reasonable 

amount of time’’ was used there and it ended up being a year. So 

that’s my only response to that. 

47

And then I have a response to the roving wiretaps, as well. We 

are not in favor of doing away with those, which I was misquoted 

today in the paper. 

Chairman HATCH. Right. 

Ms. EYER. But have some specific suggestions to safeguards, that 

the target is specified and they ascertain that the target is using 

the facility which was previously used for criminal investigations. 

Thank you. 

Chairman HATCH. Appreciate that. Let’s make it clear, and you 

haven’t, but some people have interpreted the detainees at Guantanamo as being detained because of the PATRIOT Act. It has nothing to do with the PATRIOT Act. It does have a lot to do with 

‘‘enemy combatants’’ and how that is interpreted, and that’s going 

to have to be sifted through. And we will have to figure that out. 

I’m going to go down there within the next while and personally 

review the whole matter and really look it over. 

But that’s the request of the Justice Department and the Department of Defense. But a lot of people have misconstrued the PATRIOT Act thinking that the people are being detained because of 

the PATRIOT Act, and it’s just not so. You didn’t indicate that, but 

I wanted to clarify that. 

The PATRIOT Act has been condemned by some people who have 

no idea what’s in it and who have made very unjust and irresponsible accusations. As you can see, this has been a substantive hearing where we are trying to figure out if there are things that need 

to be changed and need to be modified or need to be strengthened 

or need, you know, need to be deleted. And frankly, through most 

of my hearings I haven’t heard one abuse other than the court in 

this one provision, that it was vague. And that wasn’t an abuse. 

But it’s a criticism that may be valid. We will see about that and 

see what we can do. 

Anybody else care to comment? 

Mr. MYLAR. Mr. Chairman? 

Chairman HATCH. Frank. 

Mr. MYLAR. When I look at the wording of this Section 213, it 

doesn’t give any time periods whatsoever. What might be reasonable to one judge could be totally unreasonable to another judge. 

It says it can be extended for good cause, but again there’s no definite time period. Of particular concern is that this idea that the 

judge is going to be exercising supervision or oversight. I think that 

is a little bit illusory, especially given the heavy schedules of 

judges. They don’t necessarily look through all the investigative 

files. 

Chairman HATCH. They take it pretty seriously, and by the time 

it gets there it has been really scrutinized forwards and backwards. 

Mr. MYLAR. But it may never came back to that judge’s attention 

unless something else is done on that case. For instance, if a criminal case is— 

Chairman HATCH. I don’t think your argument is that we 

shouldn’t give them a reasonable period of time— 

Mr. MYLAR. No. 

Chairman HATCH. —so that the enemy or criminal is informed 

on the thing and then can flee or trigger some terrorist act. So 

that’s basically what I’m asking about. 

48

Mr. MYLAR. But there should be some kind of uniform period of 

time where they have to make that second application so that we 

know that the judge actually will see it. 

Chairman HATCH. I think Mr. Collins would agree there hasn’t 

been an extensive period of time in any of these cases. 

Mr. COLLINS. In pre-existing case law, there was not a statutory 

provision prior to the PATRIOT Act that specifically provided for 

this, but the courts had allowed it. And the case law, there were 

a number— 

Chairman HATCH. Allowed it with regard to general criminal activities, organized crime, and a whole raft of other related criminal 

activities before we ever put it in the PATRIOT Act. 

Mr. COLLINS. That’s correct, Senator. And many had adopted sort 

of— 

Chairman HATCH. And they didn’t have that right with regard 

to terrorists. That’s why we put it in there. 

Mr. COLLINS. The provision is an across-the-board codification 

and that makes sense because it’s a general issue. Some of the 

courts had used a seven day benchmark. But even those that did 

so by case law acknowledged that in some cases 7 days might not 

be adequate. There shouldn’t be a one-size-fits-all. It leaves it to 

the discretion of an independent Article III district judge to say, ‘‘I 

think what is reasonable in this circumstance is 7 days,’’ or, ‘‘I 

think it may be 20 days based upon the showing that you made.’’ 

Chairman HATCH. And an Article III district judge, of course, is 

a trial judge in the courts. 

Well, let me just end this hearing on this comment— 

Mr. TURPEN. Could I make a quick comment? 

Chairman HATCH. I’m sorry. You did want to comment. 

Mr. TURPEN. I believe as far as ‘‘sneak and peek’’ warrants, as 

they are called, I believe that Mr. Bradley did the right thing. He 

went straight to the core. He jumped right to the Fourth Amendment. And what I would like to point out, and I don’t mean to 

apologize for criminals or justify what they are doing, but in the 

example that was used by the Deputy Attorney General, I believe 

that that judge was incorrect in giving that warrant. And specifically the reason I believe that is because the Fourth Amendment 

says specifically, ‘‘Upon oath or affirmation, and particularly describing the place to be searched, and the persons or things to be 

seized.’’ And I don’t disagree that there should be or that this is 

not a great tool for law enforcement. But I think it is something 

that should be very, very, very carefully scrutinized. And I think 

that it should be scrutinized according to the supreme law of the 

land. 

Chairman HATCH. I understand. You and I do disagree. And I 

agree with Mr. Comey on that, that that was a reasonable and 

frankly a very important and necessary approach to resolve that 

crime. 

But we have appreciated your honest impressions, your honest 

suggestions here. We listened carefully and will continue to analyze 

and think about what you had to say. 

I’d like to thank U.S. Attorney Paul Warner for sitting through 

the whole hearing and remaining to hear all of your concerns. 

49

I want to thank Dean Matheson for making this facility availability to us. And actually I hope he remains the dean here for a 

long time. 

We will allow for those who have witnessed or those who have 

appeared and made comments, we will allow a seven day period in 

which the record can be supplemented, because you have all sat 

through and listened to each other and the two law enforcement 

people, and you may have some additional thoughts that may be 

helpful to us. So we will be happy to keep this record open for 7 

days and take your written suggestions. 

With that, I just want to express my gratitude for everybody who 

has participated in this hearing. It’s been a very good hearing. And 

I appreciate the extra time and all. 

And I particularly appreciate Mr. Comey coming all the way from 

Washington, as busy as he is, and right in the middle of the 9/11 

Commission and everything else to come here. But it shows the importance that they put on this particular Act and how important 

it is. 

I have had something to do with almost every law enforcement, 

every anti-crime matter in the last 28 years. You mentioned the 

Protect Act. You mentioned that. That’s protecting our children like 

never before. And let me tell you, we had all kinds of opposition 

to provisions in that Act. But we have also had people on both 

sides say that that’s one of the most important crime bills for children ever. It’s the most important crime bill for children ever enacted. 

And I will just say this to you: Listen carefully to what Mr. 

Comey was saying, and Paul Warner. Without the PATRIOT Act, 

we would not have apprehended—and I will just give a ballpark 

figure, and it’s actually probably more—but at least 200 terrorists 

in this country since 9/11. Without the PATRIOT Act, we would not 

have had the tools to have been able to protect you as much as we 

have. And I, for one, don’t want to see those provisions sunsetted. 

I’m not against trying to perfect them even more or improve them 

even more. I think it would be crazy to sunset provisions that are 

helping us to apprehend terrorists in this country that we wouldn’t 

be able to do without them. 

So this is an important hearing and I personally am very appreciative of everybody who has participated. And with that, we will 

just recess it until further notice. Thank you. 

[Whereupon, at 12:15 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.]

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