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20–355 PDF 2005

S. HRG. 108–803

A REVIEW OF COUNTER-TERRORISM LEGISLATION

AND PROPOSALS, INCLUDING THE USA PATRIOT ACT AND THE SAFE ACT

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

SEPTEMBER 22, 2004

Serial No. J–108–96

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

Feingold, Russell D., a U.S. Senator from the State of Wisconsin ...................... 24

prepared statement .......................................................................................... 181

Feinstein, Hon. Dianne, a U.S. Senator from the State of California ................. 183

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

prepared statement .......................................................................................... 187

Kyl, Hon. Jon, a U.S. Senator from the State of Arizona .................................... 33

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 9

prepared statement .......................................................................................... 193

Schumer, Hon. Charles E., a U.S. Senator from the State of New York ............ 39

Session, Hon. Jeff, a U.S. Senator from the State of Alabama ............................ 42

WITNESSES 

Barr, Hon. Bob, former Representative in Congress from the State of Georgia 48

Collins, Daniel P., Munger, Tolles and Olson, LLP, Los Angeles, California ..... 50

Comey, James B., Deputy Attorney General, Department of Justice, Washington, D.C. ........................................................................................................... 14

Craig, Hon. Larry E., a U.S. Senator from the State of Idaho ............................ 3

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois .................... 6

QUESTIONS AND ANSWERS 

Responses of Bob Barr to questions submitted by Senator Hatch ...................... 57

Responses of Daniel Collins to questions submitted by Senator Hatch .............. 65

Responses of James Comey to questions submitted by Senators Hatch and 

Leahy ..................................................................................................................... 71

Additional information in response to questions regarding section 213 of 

the USA PATRIOT Act ........................................................................................ 109

SUBMISSIONS FOR THE RECORD 

Adams, Daniel, Film Director and Writer, West Barnstable, Massachusetts .... 116

American Civil Liberties Union, Legislative Media Relations Unit, Washington, D.C., article .............................................................................................. 118

American Jewish Committee, Washington, D.C., statement ............................... 119

Ashley, Carol, Beverly Eckert, and Mary Fetchet, Members, Family Steering 

Committee for the 9/11 Commission, letter ....................................................... 121

Barr, Hon. Bob, former Representative in Congress from the State of Georgia, 

Atlanta, Georgia, prepared statement ................................................................ 122

Board of County Commissioners, Collier County, Florida, resolution ................ 137

Center for Democracy & Technology, Washington, D.C., coalition letter ........... 138

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

prepared statement .............................................................................................. 140

Comey, James B., Deputy Attorney General, Department of Justice, Washington, D.C., prepared statement and letters .................................................... 153

Craig, Hon. Larry E., a U.S. Senator from the State of Idaho, and Hon. 

Richard J. Durbin, a U.S. Senator from the State of Illinois, joint letter ....... 170

Drug Enforcement Administration, Office of National Drug Control Policy, 

Karen Tandy, Administrator, and John Walters, Director, Washington, 

D.C., letter ............................................................................................................ 177

Fraternal Order of Police, Chuck Canterbury, National President, Washington, D.C., letter ............................................................................................... 185

Page

IV

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts, 

letter ...................................................................................................................... 190

League of Women Voters of the United States, Kay J. Maxwell, President, 

Greenwich, Connecticut, letter ............................................................................ 192

Moschella, William E., Assistant Attorney General, Department of Justice, 

Office of Legislative Affairs, Washington, D.C., letters and attachment ........ 197

National Association of Police Organizations, resolution ..................................... 209

National Sheriffs’ Association, resolution .............................................................. 210

National Troopers Coalition, Casey Perry, Chairman, Green Bay, Wisconsin, 

resolution .............................................................................................................. 212

Pennsylvania Chiefs of Police Association, Edward W. Carroll, Jr., President, 

resolution .............................................................................................................. 213

Perry, Patricia J., Mother of NYPD Officer John William Perry, Esq., letter .... 214

(1)

A REVIEW OF COUNTER-TERRORISM LEGISLATION AND PROPOSALS, INCLUDING THE 

USA PATRIOT ACT AND THE SAFE ACT 

WEDNESDAY, SEPTEMBER 22, 2004 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 9:35 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Orrin G. Hatch, 

Chairman of the Committee, presiding. 

Present: Senators Hatch, Kyl, Sessions, Craig, Cornyn, 

Chambliss, Leahy, Kennedy, Feinstein, Feingold, Schumer and 

Durbin. 

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

SENATOR FROM THE STATE OF UTAH 

Chairman HATCH. Good morning, and welcome to today’s hearing. This Committee must be vigilant in overseeing the legal tools 

Congress gives to the Federal Government to protect the American 

people from acts of terrorism. Senator Leahy, the ranking Democratic member of the Committee, and I, along with all members of 

the Judiciary Committee, have worked together in a bipartisan 

fashion to review the adequacy of the legal tools available in the 

war on terrorism. During the 108th Congress, the Senate Judiciary 

Committee has remained active in its oversight and evaluation of 

terrorism issues. We have held over 25 terrorism-related hearings 

in this Congress. 

We have just marked the third anniversary of the September 11 

attacks on our country. That somber anniversary and the recently 

released 9/11 Commission report remind us that the stakes in this 

war on terror are immense and that the enemy we face is ruthless 

and evil. We are also reminded that the terrorist threat to our 

country is as real today as it was back in September of 2001. Failure to grasp this reality would be a dangerous misunderstanding 

of our enemy’s plans. 

Only weeks ago, we all witnessed the horror of parents in 

Beslan, Russia, who rushed to the school, only to learn that their 

children were being held hostage. Later, watching some of the children, clad only in their underwear, escape death, seeing the covered bodies of the many who could not escape and viewing the 

stunning videotape of the terrorists who flaunted explosives before 

their helpless victims, provided an unfiltered view of the inhumane 

enemy we are facing. 

2

While we cannot be ruled by our fears, events like these must 

never be far from our minds as we carry out our oversight of the 

war on terror. We must do all we can to make sure that we do not 

face another September 11 attack or Beslan-like tragedy in this 

country. 

The USA PATRIOT Act has been one of the key legislative tools 

in our fight against terrorism. As the 9/11 Commission report 

noted, quote, ‘‘Many of the act’s provisions are relatively non-controversial, updating America’s surveillance laws to reflect technological developments in a digital age. Some executive actions that 

have been criticized are unrelated to the PATRIOT Act. The provisions in the act that facilitate the sharing of information among intelligence agencies and between law enforcement and intelligence 

appear, on balance, to be beneficial. Because of concerns regarding 

the shifting balance of power to the government, we think that a 

full and informed debate on the PATRIOT Act would be healthy,’’ 

unquote. 

I hope today’s hearing advances this debate in a constructive 

fashion. As we examine the PATRIOT Act and the proposals to 

alter it, I frequently look to see if the tools we seek in the war on 

terror are already available in the narcotics or organized crime context. 

For example, the criminal law has long permitted investigators 

to obtain business records by grand jury subpoena if the records 

may be relevant to a criminal investigation. The PATRIOT Act 

adopted a similar relevance standard for investigators who seek 

records via a FISA, or Foreign Intelligence Surveillance Act, court 

order in terrorism cases. 

One proposal we will hear about today, the SAFE Act, would require a higher standard in terrorism cases. To obtain business 

records, the SAFE Act would require the Government to show specific and articulable facts to believe that the person to whom the 

records pertain is a foreign power or agent of a foreign power, a 

much higher standard than showing the records may be relevant 

to an investigation. 

I am skeptical about efforts to impose a greater burden on the 

Government in terrorism cases than in less serious, but nevertheless significant criminal cases. It seems to me that we should not 

make it any harder to go after suspected terrorists than after suspected drug dealers. 

Another example that we will hear about today is delayed notification search warrants. Delayed notice warrants have been allowed 

in criminal cases for at least 15 years. The PATRIOT Act codified 

this authority, permitting delay if the Government satisfies an Article III judge that delay is necessary in enumerated instances; that 

is, a Federal district court judge, or it could be under certain circumstances a Federal circuit court judge. 

The SAFE Act would forbid delay in some circumstances previously allowed by the courts, including those instances where notice would result in the intimidation of witnesses or would seriously jeopardize an investigation. Again, I have to say I am highly 

skeptical about the need to limit the use of tools that have been 

available to criminal investigators for years. If delayed notification 

warrants are good enough for drug dealers, white-collar criminals 

3

and organized crime syndicates, I will have to be convinced that 

they should not apply to terrorism investigations. 

As we move forward, many issues must be weighed: how best to 

preserve our traditional civil rights while strengthening our ability 

to disrupt terrorist plots; whether we should reconcile our mass 

transportation laws to ensure that terrorists who may attack a 

train are treated the same as those who may attack a school bus; 

whether our laws adequately punish those who possess missile systems designed to destroy aircraft; and whether we should update 

a host of other anti-terrorism laws. In all these areas, we must remain innovative in examining our terrorism laws and stay a step 

ahead of the terrorists. 

Let me be clear. I certainly do not question the motives of anyone 

who wants to alter the PATRIOT Act. However, I do disagree with 

the facts cited to support many of the changes that have been advocated to date. I am especially skeptical about changes that would 

leave our counter-terrorism investigators less well equipped than 

their criminal investigator counterparts. 

I look forward to hearing from our witnesses on how we can continue to move forward to achieve our shared goal of making America safer while retaining our cherished civil liberties. We are 

pleased today to have two significant members of this Committee 

to present their views on some of the changes they would like to 

see in the PATRIOT Act. I respect, naturally, both of these fine 

gentlemen—Senator Craig, from Idaho, who has worked very, very 

diligently and in a very, very effective way on this Committee, and 

Senator Durbin, who is one of the leaders on the Committee on his 

side of the table, and certainly a very bright man who has a tremendous knowledge of law. 

[The prepared statement of Senator Hatch appears as a submission for the record.] 

So we are grateful to have both of you here. We will look forward 

to hearing your testimony. I guess we will start with you, Senator 

Craig. 

STATEMENT OF HON. LARRY CRAIG, A U.S. SENATOR FROM 

THE STATE OF IDAHO 

Senator CRAIG. Well, Mr. Chairman, thank you very much. I am 

pleased to be at the table with my counsel today, Senator Dick 

Durbin, from the great State of Illinois. I want to thank you for 

convening this important hearing on— 

Chairman HATCH. That automatically gives me some real pause 

here that you are with your counsel. 

Senator CRAIG. I am here with my counsel, Mr. Chairman. This 

is the Judiciary Committee and I do want the arguments to be 

clear and to the point. 

I do want to thank you especially today for convening this hearing on the USA PATRIOT Act and the SAFE Act. I welcome the 

distinguished panelists who are coming after us. I appreciate their 

being here and look forward to their testimony. 

A recent news article described me as a ‘‘rock-ribbed’’ conservative Republican stalwart from Idaho. I liked that. Accordingly, I 

am a supporter of this President and the PATRIOT Act. However, 

4

that does not mean there is not room for legitimate debate about 

civil liberties in the war on terror and during an election year. 

It is not pandering to hysteria to respond to the legitimate concerns that I and my constituents and the cosponsors of the SAFE 

Act and their constituents have regarding certain PATRIOT provisions that pose recognized risks to American civil liberties. It is 

law-making, and my responsibility as a U.S. Senator is just that. 

Several provisions in the PATRIOT Act will sunset in 2005. The 

SAFE Act clarifies and amends in minor ways the PATRIOT Act’s 

most troubling provisions. This bill is my bid to open debate on this 

important and very present issue so that we are better prepared 

to deal with the PATRIOT Act a second time around. 

But many have distorted this effort, Mr. Chairman. Initially, critics said that any attempt to amend the PATRIOT Act was based 

on misinformation. It simply is irresponsible to say that anyone 

who finds imperfections in a 350-page law does so only because 

they are misinformed. 

The Department of Justice itself, in a hearing on the PATRIOT 

Act’s material support statute earlier this year, suggested ways in 

which the material support statute could be improved. That is the 

Department of Justice asking for change in the PATRIOT Act. 

The President, in a speech in Hershey, Pennsylvania, in April, 

recommended changes in the PATRIOT authorities in the form of 

administrative subpoenas and presumptive denial of bail in terrorist cases and allowing the death penalty for terrorist crimes that 

result in death. 

The Department of Justice followed suit with the Tools to Fight 

Terrorism Act of 2004 and other legislative proposals that would 

change or add to the law enforcement authorities provided for in 

the PATRIOT Act. It seems that the PATRIOT Act is not a perfect 

law, seen through the eyes of the Justice Department. 

Critics also said that any attempt to amend the PATRIOT Act 

are legislative proposals based on fear of potential abuses rather 

than actual abuses under current law. This is a Government of 

laws, Mr. Chairman, not men. While I trust the men and women 

of this administration—and I do trust them—I do not know who 

comes next or 10 years or 20 years from now. 

When I am told that in the case of several powerful provisions 

of the PATRIOT Act, law enforcement can, but will not use them 

in a particular way, I grow skeptical, and so do my constituents. 

When the Department of Justice states on its website that terrorism investigators have no interest in the library habits of ordinary Americans and that we must simply trust that they do not, 

that is not the way this Government works before, during or after 

a war on terrorism. I therefore see the need to proceed not with 

fear but with caution, not with hysteria but with reasonable and 

sound logic. 

More recently, I have heard some say that there has been no informed debate on the PATRIOT Act, no informed debate on the PATRIOT Act. Mr. Comey, a panelist before the Committee today, testified at the April 14 Judiciary hearing entitled ‘‘Preventing and 

Responding to Acts of Terrorism: A Review of the Current Law,’’ 

that there has been ‘‘no real informed public debate on the PATRIOT Act over the last 18 months to 2 years. Instead, we have 

5

found ourselves in a situation where town councils across the country 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’’. It was also reiterated that it is important that we have the discussion now, and for that I thank you, 

Mr. Chairman. I do believe this is the beginning of what needs to 

be a very thorough and open discussion. 

Since the passage of the PATRIOT Act in 2001, lawmakers, constituents, interest citizens groups and various associations and organizations on the local, State and national level have met, conducted public forums, attended conference events, written letters, 

issued statements and drafted legislation on the PATRIOT Act and 

related issues. 

They have said that now is the time to correct some of the provisions of the USA PATRIOT Act by passing the SAFE Act. The 

American Conservative Union has agreed. The Gun Owners of 

America have agreed. The Free Congress Foundation has agreed. 

The ACLU has agreed. The Center for Democracy and Technology 

has agreed. The League of Women Voters has agreed. The Electronic Frontier Foundation has agreed. The American Booksellers 

Foundation for Free Expression has agreed. The American Library 

Association has agreed. 

I assure you it has been discussed and continues to be discussed 

not here in Congress to any great degree, but all over this country. 

But the Department of Justice is not discussing it. As my colleague, Senator Feinstein, pointed out in last week’s hearing, after 

3 years we have received no reports on the sunsetted provisions. 

Instead, what we have received is a veto threat. 

Instead, the Department of Justice is requesting additional law 

enforcement authorities in the form of administrative subpoenas, 

FISA warrants for lone wolf terrorists, automatic provisions for 

confidential requests for Classified Information Procedures Act protection, and the list goes on. 

Instead, they have said that if people find the space in American 

life to have an actual informed understanding of the PATRIOT Act, 

they will realize that it is so smart, and I want to emphasize so 

ordinary. ‘‘Ordinary’’ with respect to roving wiretaps would be to 

extend the criminal wiretap authority to intelligence cases rather 

than creating a John Doe wiretap, which does not require law enforcement to specify the target of the wiretap or the place to be 

wiretapped. 

‘‘Ordinary’’ with respect to sneak-and-peek warrants would be to 

reserve their use for a limited set of circumstances in which there 

is statutorily mandated judicial oversight. ‘‘Ordinary’’ with respect 

to FISA orders for personal records would be to preserve the requirement that the FBI state specifically articulable facts showing 

reason to believe that the person to whom the records related was 

a terrorist or a spy, rather than reducing this to merely requiring 

the FBI to clarify that the records are sought for an international 

terrorism or intelligence investigation—a standard even lower than 

relevance. 

‘‘Ordinary’’ with respect to the national security letters for personal records would be to clarify that a library is not a wire or communications service provider, while still allowing the FBI to obtain 

6

the same information regarding e-mails or other communications 

that took place at libraries by issuing an NSL to the library’s wire 

or communications service provider. 

And, lastly, ‘‘ordinary’’ with respect to sunsetting Sections 213, 

216, 219 and 505 of the PATRIOT Act would be to ensure that 

there is a future discussion about the nature and use of some of 

the most controversial provisions of the law. 

The SAFE Act would restore the ordinary and necessary tools to 

fight a successful war on terrorism and eliminate those extraordinary PATRIOT powers that pose a threat to American civil liberties. 

I want to show you something that is posted on the wall at the 

Boise, Idaho, library. The sign says, ‘‘Notice: Under Section 215 of 

the Federal U.S. PATRIOT Act, records of your Internet computer 

use and/or records of the books and other materials you use or borrow from this library may be obtained by Federal agents. The Federal law prohibits library staff from informing you if records about 

you have been obtained by a Federal agent.’’ 

That is the sign of Big Brother, and, Mr. Chairman, that is the 

sign that should come down from all of America’s library walls. 

That is why I am here today, that is why my colleague is here 

today, and that is why the SAFE Act is a part of what must become a new and reauthorized PATRIOT Act. 

Thank you, Mr. Chairman. 

Chairman HATCH. Thank you, Senator. 

Senator Durbin, we will turn to you now. 

STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR 

FROM THE STATE OF ILLINOIS 

Senator DURBIN. Thanks, Mr. Chairman, and thank you for keeping your word. You promised us that you would have this hearing 

and the SAFE Act would be discussed, and we appreciate it very 

much, and the opportunity to testify. 

Chairman HATCH. Let me say I always try to keep my word, and 

I appreciate that. 

Senator Leahy is going to defer a statement until after you finish 

yours. So I just want people to realize that I am not being discourteous to my counterpart on the Committee. 

Senator LEAHY. You never are. 

Chairman HATCH. Senator Durbin. 

Senator DURBIN. Thank you. 

I am sure that anyone who follows C–SPAN is trying to figure 

out why Senator Durbin would be sitting next to Senator Craig at 

the same table cosponsoring a piece of legislation. 

Chairman HATCH. It is a puzzlement. 

Senator DURBIN. This is truly an odd couple on Capitol Hill. 

Chairman HATCH. It may be the other way around. People are 

wondering why in the world is he sitting next to you. 

[Laughter.] 

Senator DURBIN. Well, it could be. 

Senator CRAIG. I have already clarified that, Mr. Chairman. 

Chairman Hatch. Yes, I think you did. 

Senator CRAIG. He is my counsel. 

7

Senator DURBIN. Senator Sununu, who is a cosponsor of this legislation, when he looked at the lead sponsors said it tells us one 

of two things, either that this is truly a bipartisan attempt or that 

one of these Senators hasn’t read the bill. 

I would tell you that we have read the bill. We understand the 

SAFE Act and it is a bipartisan effort, and it is amazing what we 

have brought together in this effort. Whether you are on the left 

end of the political spectrum or the right end of the political spectrum, you are going to find support for the SAFE Act. 

There is one thing that binds us together in the U.S. Senate, only 

one, and that is our sworn allegiance to the Constitution. I think 

Senator Craig may view some portions of it a little differently than 

I do, but we understand the basic responsibility that we face here, 

and that is why we introduced this bill. 

We start with the same premise both from the Democratic and 

Republican side, and that is that we have basic rights and liberties 

to privacy, for example, in this country and the government has to 

make the case when it takes away your rights and liberties. If you 

start with that premise, as the 9/11 Commission did, then I think 

you can understand the SAFE Act. It is what we are all about. 

I would like today to ask that we call a truce in the war over 

the PATRIOT Act. Almost since the day that it was passed, supporters and critics have been engaged in trench warfare. Some people have resorted to falsehoods and scare tactics. I know everyone 

on this Committee rejects those tactics, and I think we should 

move beyond them. 

There are some things that I think we can basically agree on. 

First, the PATRIOT Act is a deeply misunderstood law. It is a really complicated, highly technical statute, 130 pages long. Most 

Americans haven’t read it; and many Members of Congress may 

not have had the time to read it. 

One critic said trying to read the PATRIOT Act and understand 

it is like standing outside a library in the middle of the night listening to the mice chewing on the books and trying to figure out 

what the contents of the books happens to be. That is not a 

misstatement or an over-statement, I think, when you consider 

some of the vague references and technical references in the PATRIOT Act. 

Many policies people attribute to the PATRIOT Act have nothing 

to do with it. Let me give you an example: the detention of U.S. 

citizens an enemy combatants. I have been critical of this policy, 

but let’s be clear. That doesn’t have a thing to do with the PATRIOT Act. 

Chairman HATCH. Right. 

Senator DURBIN. Second, the fact that the PATRIOT Act is misunderstood does not mean that public concerns about civil liberties 

can be dismissed. As I said earlier, if you start with the premise 

that we have certain rights and liberties, God-given, and that the 

government has to justify taking away those rights, this is truly a 

legitimate inquiry as to whether the PATRIOT Act went too far. 

Third, the PATRIOT Act shouldn’t be a political football. Let’s be 

clear. The PATRIOT Act sunset clause applies to less than 10 percent of the law, only 15 of the 158 sections. These provisions are 

scheduled to expire on December 31, 2005, over 15 months from 

8

now. We picked that date, which is not during an election year, for 

good reason. We wanted to keep the PATRIOT Act out of politics. 

Let me at this time salute you, Mr. Chairman, as well as Senator 

Leahy. I remember how the PATRIOT Act was born. It was a bipartisan effort at a very worrisome time in America’s history, and 

I thought the two of you did your level best to come together and 

present something to us which was bipartisan, but to provide within the law sunset provisions so if we made a mistake in our fear 

or in our haste, we could correct it. 

Fourth, Congress should debate the PATRIOT Act thoroughly before reauthorizing it. I think that is something that goes without 

saying. 

Fifth, as I said earlier, the burden of proof for retaining the expanded powers of the Government under the PATRIOT Act is on 

the Government, not on the American people. The American people 

should not have to prove that they have a right to privacy. The 

American people should not have to prove that before their Government can search their homes or tap their phones, the American 

people have the responsibility of establishing why they shouldn’t be 

tapped. 

Here is where we disagree, and our debate over the PATRIOT 

Act is really limited to a small number of controversial provisions. 

We understand the PATRIOT Act was passed at a time of national 

crisis. The White House came to Congress and asked us to pass it 

to give our Government more power to protect us from another 9/

11. As I said earlier, members on both sides of the aisle worked to 

improve it. 

I want to at this point really salute one of my colleagues who is 

here today, and that is Senator Feingold. During the course of the 

debate on the PATRIOT Act, I thought he offered amendments on 

the floor of the Senate which were thoughtful amendments which 

really get to the heart of some of the issues that are addressed in 

the SAFE Act. It was not an easy time to offer those amendments 

and to suggest that the Government was going too far in the passage of the PATRIOT Act. 

Senator Feingold, thank you for your courage and your leadership. I think, frankly, more of us should have been more carefully 

attuned to some of your arguments during that particular moment. 

Mr. Chairman, there is no perfect law, with the possible exception 

of the Ten Commandments and several laws that you have authored. 

[Laughter.] 

Chairman HATCH. Well, it is nice to have recognition of that. 

Senator DURBIN. Thank you. 

Now, with almost 3 years of hindsight, isn’t it appropriate that 

we ask some important questions? I think Senator Craig has really 

gone to the specific issues and we can point to a broad coalition of 

groups that ask the very same questions. 

When the American Conservative Union and the American Civil 

Liberties Union are standing together asking these questions, I 

think it points to the legitimacy of what we are about with the 

SAFE Act. 

Unfortunately, the SAFE Act has been caught up in the war over 

the PATRIOT Act. I can’t remember a time in over 20 years that 

9

I have been on Capitol Hill when any administration has announced in advance when a bill was introduced that they were 

going to veto it, but they did on the SAFE Act. Before there was 

a single hearing, before there was a single amendment offered, the 

administration announced the President will veto this bill. I think 

that is a singular distinction. I don’t know if it is a singular honor, 

but I can’t recall this ever having occurred. 

The administration said this bill would eliminate some PATRIOT 

Act powers and, quote, ‘‘make it even more difficult to mount an 

effective anti-terror campaign than it was before the PATRIOT Act 

was passed.’’ These objections from the administration are just not 

accurate. 

The SAFE Act does not repeal one provision in the PATRIOT 

Act. It doesn’t amend pre-PATRIOT Act law. It retains the expanded powers created by the PATRIOT Act, but it places important limitations. Senator Craig has spelled them out. 

When it comes to roving wiretaps, it would eliminate the John 

Doe roving wiretap. It would say to the Government, specify the 

person or the phone that you are going to tap. That is all. 

On sneak-and-peek searches, it would say that after a period of 

time, 7 days, the Government would notify you that your home has 

been searched. And we put provisions in there for exceptions. For 

example, if someone’s life is at stake; evidence is about to be destroyed. There are exceptions to that notification. 

When it comes to the library issue, if you had been home and 

met with librarians to discuss this issue, you understand why the 

Boise Public Library has put this notice up and why many libraries 

across America are warning Americans that what they do in a public library may be compromised by the PATRIOT Act. That is an 

indication to me that we need to sit and take a look at this. 

These are not wild-eyed people. These are folks in libraries who 

are committed to some of the most basic principles and freedoms 

of America—the right to privacy. When they are this concerned, as 

has been expressed by Senator Craig and many others, we owe it 

to them to step back and take notice. 

Mr. Chairman, I am not suggesting our SAFE Act is perfect. Senator Craig and I are open to suggestions. I hope this Committee 

will be willing to work with us in a good-faith, bipartisan effort to 

really come up with a modification of the PATRIOT Act which does 

not compromise national security, but preserves and protects the 

rights and liberties of the people of this country. 

Thank you, Mr. Chairman. 

Chairman HATCH. Well, thank you, and I am convinced that both 

of you are very sincere in this effort and we will certainly work 

with you to see if there is some way we can resolve the differences 

that we have over this. 

I would like to get to General Comey, so why don’t you folks 

come up on our dais and we will turn to Senator Leahy, our Democrat leader on the Committee. 

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR 

FROM THE STATE OF VERMONT 

Senator LEAHY. Thank you, Mr. Chairman, and I will try not to 

hold up the Deputy Attorney General. 

10

After all, he is one of the few people in Government who is taller 

than I am and I wouldn’t want to do that. 

I want to just open by stating my respect and admiration for 

both Senator Durbin and Senator Craig. I remember different 

times I have worked with Senator Durbin. He has so carefully and 

consistently gone through each piece of legislation here and worked 

on it. 

Sometimes we have agreed, sometimes we have disagreed. I have 

always been influenced, though, by his reasoning and his work on 

that. 

Senator Craig and I worked together when I was the Democratic 

leader of the investigation that happened on Ruby Ridge. I couldn’t 

help but think, in speaking with Senator Craig at that time and 

with many of his constituents, of some of the concerns that they 

expressed about the Government’s involvement in their life, or even 

more specifically the Government’s involvement in their privacy. It 

would be easily interchangeable with the people in Vermont, a 

State which greatly, greatly holds to its privacy. 

About the only article ever written about me that I actually 

saved and framed was a sidebar to a major New York newspaper 

that sent somebody up to do a profile of me. The sidebar talks 

about the little town I live in. I live on a dirt road, in an old farmhouse, with a farm family that has known me since I was a child 

next door. They hay the fields and what not. 

The article went almost exactly like this. On Saturday morning, 

a New York reporter pulls up in a New York-licensed car. An old 

farmer is sitting on the porch, and he says does Senator Leahy live 

up this road? The farmer looked up and said are you a relative of 

his? He said no. He said, well, are you a friend of his? 

Well, not really. Is he expecting you? No. The farmer looks him 

right in the eye and says never heard of him. That is our sense of 

privacy. 

Senators Durbin and Craig have been vocal proponents for a 

thoughtful change in the PATRIOT Act. They have identified sections in the law that deserve vigorous debate; specifically, with regard to Section 215 of the PATRIOT Act, the national security letters. I think that is important. 

I wish—and this is nothing against Mr. Comey, who is very wellrespected, but I wish the Attorney General would be here, not least 

because of his oversight obligation to his former colleagues on this 

Committee. We see him appearing at press conferences, announcements of indictments. We read about his travel to Bellagio and 

Lake Como, near that beautiful portion of northern Italy from 

which my Italian grandparents emigrated. He seems to have time 

for everything but appearing before the oversight Committee. As 

members of the Committee know, this chronic scarcity touches also 

on the question of 9/11. 

So I do look forward to hearing Mr. Comey’s views on the SAFE 

Act, but I am also interested to hear his response to rising public 

concern over the fact that the Bush administration continually calls 

for more Government power, while leaving many available authorities under-utilized. There is the matter of establishing a real civil 

liberties protection board to serve as a watchdog to the agencies of 

the executive branch. So today’s hearing is an important. 

11

The Durbin-Craig SAFE Act is a substantive bill that merits our 

attention. But this hearing is also significant because it is the first 

hearing in this Committee on these matters since the release of the 

9/11 Commission report, which wrote that the burden of proof for 

retaining a particular governmental power should be on the executive. It said that the executive must explain how the powers of the 

PATRIOT Act actually materially enhance security, whether there 

is adequate supervision of the executive’s use of those powers to ensure protection of civil liberties, that there are adequate guidelines 

and oversight to confine its use. So there should be answers to 

questions on this topic. 

The hard truth is, even as we mark the third anniversary of the 

terrible, terrible September 11 attacks, we have not seen basic accountability for these tragic acts. Vice President Cheney recently 

spoke about a number of things, but he recently spoke of the likelihood that terrorist attacks would occur if a Democrat were elected 

President. That is outrageous. He told supporters that terrorists 

will strike again if we make the wrong choices on election day. I 

was a youngster during the McCarthy era, but I still remember 

some of the slurs that came out at that time. This remark is not 

only irresponsible and outrageous, but it shows fear-mongering. 

It is also incredibly ironic that it was given by the top administration official who was on watch on September 11 when the first 

attack happened, and we have yet to see any acceptance of responsibility for that attack or the missteps leading up to it or the failure to capture Osama bin Laden. We seem to think that the administration could squander the unity of the American people and our 

international allies by deviating from the fight against terrorism by 

choosing instead to topple the regime of Saddam Hussein, a horrible man. But I am far more interested in getting the people who 

struck at us. 

I really worry. I have seen the Republican Speaker of the House 

and the Republican candidate for the Senate in South Dakota follow these charges. After all, everybody here, Republican and Democrat, are patriotic. There is not a single one of us who wants to see 

us get attacked again, and these outrageous statements really do 

go back to a dark time in our history of Joseph McCarthy. I mention this because it was a Senator from my State, Ralph Flanders, 

who had the courage to stand up and submit the articles of censure 

against Mr. McCarthy. 

The facts are that the Bush administration resisted this Committee’s efforts to examine what led to the tragedy. They resisted creation of the Department of Homeland Security. They resisted the 

formation of the 9/11 Commission. They resisted the efforts of the 

9/11 Commission while carrying out its task, and they continue to 

resist important recommendations of the 9/11 Commission. 

Regarding the topic of today’s hearing, the administration has 

done little but resist oversight of the PATRIOT Act’s implementation, despite bipartisan concerns. After all, I remember what Governor Kean said that there is probably no substitute for the oversight of the Congressional committees. He said vigorous oversight 

is needed to make sure the public can be assured the PATRIOT Act 

is being used properly. We have been trying to get updated inforVerDate 0ct 09 2002 15:09 Apr 29, 2005 Jkt 020355 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\20355.TXT SJUD4 PsN: CMORC
12

mation from the Department on implementation issues of the PATRIOT Act, including the use of national security letters. 

We recognize that some of the most controversial provisions of 

the PATRIOT Act will sunset at the end of 2005. Because of that, 

the 9/11 Commission said we should have a healthy debate over 

the extension of those provisions next year. 

In case anybody wonders how that sunset provision came about, 

then-Republican Leader Dick Armey and I put that in. Now, that 

is an interesting ideological line-up, but the two of us joined to put 

this in. We did it so that there would be oversight. 

The Attorney General has said that no one has challenged the 

Government’s use of authority and no court had found the Government had overreached. Perhaps he chose not to be with us today 

because the list of reversal of the Government’s policies and practices has become so extensive over the last couple months and 

years. From the Department’s involvement in rewriting our country’s adherence to the Geneva Convention and the Convention 

Against Torture which contributed to the breakdown at Abu Ghraib 

prison and elsewhere, to the Supreme Court’s rejection of the administration’s Guantanamo practices, there is a lot that needs attention. 

In fact, the Justice Department has accumulated one loss after 

another in terrorism cases. We have seen just recently the unraveling of the Department’s first post-September 11 prosecution of a 

terrorist sleeper cell in Detroit. That followed on the heels of a 

growing list of losses in questionable cases. 

The wrongful arrest of a Portland attorney based on a fingerprint 

mismatch—great fanfare announcing this arrest. Whoops, sorry, 

got the wrong guy. The acquittal of a Saudi college student who 

was charged with providing material support to terrorists. The release on bail of two defendants in Albany, New York, after the Government admitted having mis-translated a key piece of evidence. 

The evidence referred to one defendant as ‘‘brother,’’ not ‘‘commander,’’ as originally represented. The Supreme Court’s repudiation of the administration’s claim that it can hold citizens indefinitely as unlawful combatants without access to counsel or family. 

There have been really very few victories in cases that brought 

terrorism charges since September 11, and those seem to have been 

foreshadowed by seemingly half-hearted prosecutions. Justice Department officials say their record since the 2001 attacks reflect a 

successful strategy of catching suspected terrorists, even if that involves charging them with lesser crimes. 

I am not going to contest that lesser crimes are being charged. 

I can’t think of a greater crime than what happened to us on September 11. If we look at the TRAC record of the approximately 184 

cases that we are told were international terrorism matters, 171 of 

them got sentences of less than a year. In my State, you can get 

sentences like that for drunk driving, not for terrorism. 

What happens to a suspected terrorist that spends 6 months in 

prison and then is deported to his country of origin in the midst 

of a war that has no end in sight? 

Does it really squelch deadly plots? 

The administration has yet to answer questions about the deportation of Nabil Al-Marabh to Syria, a nation that is a state sponsor 

13

of terrorism. He was at one time number 27 on the FBI’s list of 

most wanted terrorists. Experienced prosecutors wanted to indict 

him, but instead he was released. He shared an address with defendants in the Detroit case. Now, what are they facing? Document 

fraud charges. The Twin Towers were hit, the Pentagon was hit; 

a plane came down in Pennsylvania. We are going to get somebody 

on document fraud charges and send number 27 on our list of most 

wanted out of the country. 

I am waiting to see what the Government does with the Hamdi 

case. Will the Justice Department release and send to Saudi Arabia 

someone they said was so dangerous that he had to be held for 

years in a military stockade and couldn’t be allowed to consult with 

a lawyer? 

I would like to have asked the Attorney General about the frightening announcement from Moscow that they arrested Jose Padilla, 

as if the Government had miraculously averted a nuclear device 

from being detonated in our heartland. The Attorney General had 

to go immediately on television in Moscow to tell us about this. 

Mr. Comey represented in the Federal courts a few months ago 

that the Government no longer even contends that Mr. Padilla was 

engaged in a dirty bomb plot. 

We have yet to see any criminal charges against him, but I do 

remember all the programs on television here being stopped immediately so we could hear about the nuclear attack that was diverted 

when the Attorney General announced it from Moscow. We see a 

lot of these press conferences. I would like to find out what happens when it turns out that the charges weren’t backed up. 

The reason I mention all these things is that if we are going to 

give the Government more powers to add to the Federal arsenal, 

let’s find out what has been happening so far, not just the press 

conferences announcing some spectacular arrest, but what happened later on when somebody got a charge that is similar to a 

drunk driving charge, or the charges are dropped or we say, 

whoops, forget those major headlines that went on for day after day 

after day; we made a mistake. 

I want to know what tools are actually being used and how they 

are working, and which are subject to abuse and which need to be 

modified. As I have said before, I am a former prosecutor and I 

want to give prosecutors a lot of tools, but I don’t want them to go 

into the privacy and independence of Americans without knowing 

what we are getting in return. 

Thank you, Mr. Chairman. I will put my full statement in the 

record. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

Chairman HATCH. Thank you, Senator. I am going to put you 

down as being against the Vice President and the Attorney General, and I will— 

Senator LEAHY. No. I am against anybody who would go up and 

say one of the most outrageous statements, and every Republican 

should condemn what the Vice President said to say if we elect a 

Democrat, we are going to have a terrorism attack similar to what 

happened during this Republican administration. 

Chairman HATCH. I don’t think he said that. 

14

Senator KYL. Mr. Chairman? 

Chairman HATCH. You know he didn’t say that, and I think that 

is a misrepresentation of what the Vice President said and I would 

direct you to read the record and read what he said. And what he 

said is true, and frankly I don’t think there should be distortions 

like that. 

But be that as it may, we— 

Senator KYL. Mr. Chairman. 

Chairman HATCH. Yes? 

Senator KYL. I am sorry. Could I just ask unanimous consent 

that the Vice President’s actual words be inserted in the record at 

this point? 

Chairman HATCH. Without objection. 

Senator LEAHY. I am all in favor of that. 

Chairman HATCH. Well, so am I. 

Now, we are pleased to have Mr. Comey. Mr. Comey runs the 

Department on a day-to-day basis under the direction of the Attorney General. 

There is nobody who has better knowledge or better information 

or a better ability to understand the PATRIOT Act than Mr. 

Comey. So we welcome you as the Deputy Attorney General to this 

hearing. We are fortunate to have you. 

Mr. Comey has experience ranging from line prosecutor to terrorism prosecutor, U.S. Attorney for the Southern District of New 

York, one of the most prestigious positions in the whole Justice Department, to now the second highest ranking official in the Department of Justice and the person who runs the day-to-day Department of Justice. 

So we are pleased to have you here. We are pleased to have your 

opening statement and we look forward to allowing both sides to 

ask any questions they desire of you, and we will go from there. 

STATEMENT OF JAMES B. COMEY, DEPUTY ATTORNEY 

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

Mr. COMEY. Thank you, Mr. Chairman, Senator Leahy, members 

of this Committee. Mr. Chairman, 

I would ask that my full statement be made part of the record. 

Chairman HATCH. Without objection, we will put your full statement in the record. 

Mr. COMEY. Thank you, Mr. Chairman for holding this hearing. 

I traveled to the beautiful State of Utah for the first time ever not 

long ago to attend another hearing of this Committee devoted to 

the PATRIOT Act, and I did that because I care so much about the 

discussion about the PATRIOT Act and about how the Government 

is using its powers. 

I was honored to follow Senator Craig and Senator Durbin and 

listen to their remarks. I respect them. I hear in their remarks 

what I otherwise know, which is their passion for the rule of law 

and for a close inspection of how we are using our Government 

powers. 

Senator Craig quoted me accurately at the Utah hearing. I think 

I did say there has been no informed discussion. I should have said 

there has been little informed discussion, because I have been part 

15

of some of that discussion about the PATRIOT Act over the last 18 

months, as have my colleagues. 

This is hard stuff. As Senator Durbin said, the PATRIOT Act is 

long and complicated, and affects many, many provisions of the 

criminal law and many of our tools to fight terrorism and foreign 

intelligence efforts in the United States. 

There are folks, though, around this country who I believe don’t 

know enough about the PATRIOT Act. I believe those are the folks 

who call for its repeal. No one who has read the PATRIOT Act and 

who understands what is in it calls for its repeal, because people 

who have read it know that it provides additional money for the 

families left behind by first responders killed responding to terrorism. It does something earth-shattering and ground-breaking, 

and that is it lowers the wall between intelligence and criminal investigations so that we can work together to attack terrorism. 

I believe very strongly that both sides in this debate need to engage in this debate in a careful, respectful manner that gets beyond 

bumper stickers. I think too often we have shouted past each other 

in this debate, and folks on both sides have questioned the motives 

of people who disagree with them. 

I am somebody who believes it is right to question government 

power. Our country was founded by people who had major concerns 

about how the government would use its power, and 200 years and 

more later it is filled with people who care about how the government exercises its power and I am one of them. 

I believe that the government should explain what it is doing to 

the extent it can in an open forum, and if it can’t in an open forum, 

then in a closed forum that respects intelligence sources and methods, and defend ourselves and explain how we are using powers because sunshine is the greatest disinfectant in the world. I should 

not be doing something as Deputy Attorney General that I can’t explain and I can’t defend, and I pledge to you that I have not and 

I will not. 

As Senator Craig quoted me, I do believe that if we have an informed debate about the PATRIOT Act people will take the time 

at a cocktail party before they nod reflexively about how evil the 

Act is, if people take the time to say what do you mean specifically, 

what are the details there, or folks at conferences or folks in courtrooms or folks at hearings demand those details, they will see that 

the Act is, as I have said, smart, ordinary and constitutional, and 

that we need it. 

What I would like to do is just touch briefly on a couple of areas 

that have people very concerned and that people ask me about 

quite frequently. 

Sneak-and-peek search warrants. We in law enforcement—I 

spent my career as a prosecutor—we don’t call them sneak-andpeek search warrants. We call them delayed notification search 

warrants. Just the label ‘‘sneak-and-peek,’’ I think, connotes the 

government going through your sock drawer late at night and then 

sneaking off not to tell you about it, and obscures the fact that we 

never obtain a search warrant, whether it is a delayed notification 

search warrant or a regular search warrant, without a sworn showing of probable cause to a Federal judge, who then issues a warrant 

and has jurisdiction over that matter. 

16

Chairman HATCH. You never do? 

Mr. COMEY. Never. 

Chairman HATCH. That is important. 

Mr. COMEY. There are circumstances in which searches are done 

under exigent circumstances, emergency. 

Someone is rushing into a building and they are chased before 

they can flush drugs down the drain. But the warrant requirement 

of the Fourth Amendment is part of our being; it is part of the fabric of the Department of Justice and every prosecutor and investigator in the United States. 

Delayed notification search warrants aren’t used a lot, but they 

have been used for decades and only when it matters most. I have 

used them myself as a practicing prosecutor before I became a bureaucrat. I was Assistant U.S. Attorney in Richmond, Virginia, and 

there was a drug gang moving into Richmond from New York, 

where before I was U.S. Attorney I used to say all bad things come. 

The drug gang moved into Richmond, dealing lots and lots of 

crack. We didn’t know much about them, except they were big, they 

were bad, they were dangerous and they were new. We had a single informant who told us about them and told the DEA that they 

had just delivered five kilos of cocaine to an apartment in the west 

end of Richmond. We didn’t know much more about it. We had a 

reliable informant. We could make out probable cause based on his 

track record and the specificity of what he said. 

So we had a choice to make. Do we get a search warrant and go 

in and seize those drugs, alert this organization that we are on to 

them, jeopardize the informant and blow the investigation, or do 

we let five kilos of cocaine walk onto the streets of Richmond? We 

didn’t have to make that choice, though, because we had a judicially-created rule that has been in effect since before I was a lawyer and that has been upheld by the Supreme Court that allows 

a court to delay notice. 

So we went to a Federal judge. The DEA laid all that out that 

I just told you in a sworn affidavit, and the judge gave the Drug 

Enforcement Administration permission to search and to make it 

look like a burglary, to delay notice. So the DEA went in, they 

found the five kilos where the informant said it was. They took the 

TV, they took the stereo, they broke a window. And in a theatrical 

flourish, they took three beers and poured them down the sink and 

set them around, and then they waited. 

The two leaders of this organization came to the apartment and 

they called the cops, and we sent a black-and-white unit, a marked 

unit, with a briefed police officer and went there and answered the 

call for service and said what is the problem? And they said, well, 

there has been a burglary. Who are you? I am so-and-so, and can 

I see your driver’s license? He got full identifiers on these two characters. Whose apartment is this? It is ours. What was taken? 

Stereo, TV, and these people even drank our beers; the nerve of 

these burglars. Anything else taken? No, sir, nothing else taken. 

Sixty days later, we had identified the full extent of this drug organization and we locked them all up. More than 30, as I recall, 

were locked up. That delayed notification search warrant allowed 

us to take the drugs off the street, to protect the informant’s life 

and to identify all the bad guys. 

17

Now, my frustration is that that took me four minutes to explain. 

Finding the space in American life for folks at cocktail parties, at 

conferences and at hearings in court to listen to that to understand 

what that tool is and why it matters so much is our great challenge. That is a burden on me and other members of the Department of Justice and we are going to work very hard at it. 

Section 215 that Senator Craig mentioned, the document provision of the PATRIOT Act that allows foreign counter-intelligence 

and foreign counter-terrorism investigators to obtain records by 

going to a Federal judge and getting an order for records or tangible things, has caused great controversy. 

It has become known as the library provision for reasons that I 

cannot figure out. 

I cannot figure out how 215 got associated with libraries. They 

are not mentioned in 215. It is not something we lie awake at night 

thinking about. 

When I look at 215, what I think of is what most trained investigators think of—our ability to get credit card records, our ability 

to get travel records, our ability to get rental car records, hotel 

records. But folks are absolutely right that under this provision, a 

Federal agent could, based on a sworn affidavit, get permission 

from a Federal judge to obtain tangible things, books and records, 

that might be at a library. 

The only thing I would say to folks is that we need to start from 

the premise that we don’t want libraries to be a sanctuary in this 

country. Nobody does, if they think about it. But I think we have 

gotten to a point where somehow this debate has become so spun 

up that people whom I respect tremendously, librarians, which is 

why their concern causes me such pain, have found themselves in 

a position where they are calling for sanctuary in libraries. 

We recently had an al Qaeda associate that we were tracking in 

New York and very concerned about who had a computer at home 

that we were monitoring, and he kept going to a library to use the 

computer. 

We couldn’t figure out what was going on. To make a long story 

short, we found out after we locked this guy up that he was going 

there because that library’s hard drives were scrubbed after each 

user was done, and he was using that library to e-mail other al 

Qaeda associates around the world. He knew that that was a sanctuary. When I heard that, my reaction was what are we doing? 

How has it moved from a debate that should be rational to a place 

where we are creating a sanctuary? 

I am happy to engage with librarians and anyone else about Section 215. What that section simply does is give powers to counterintelligence investigators and counter-terrorism investigators that 

criminal investigators have had for decades to obtain records with 

process, except it does one thing. It makes it harder for them to 

get the records than for a criminal investigator using a grand jury 

subpoena. 

Chairman HATCH. Would you repeat that again, because I think 

those are things that a lot of people just don’t seem to understand? 

Mr. COMEY. I have given grand jury subpoenas—hundreds, probably thousands in my career as a Federal prosecutor—to Federal 

agents to go and obtain records. I don’t think I have ever done it 

18

with a library, but we would if the crime led us there. The showing 

required is the investigation is open and I think and the agent 

thinks this might be relevant to the investigation. We don’t have 

to go to a judge; we don’t have to involve the court at all. 

Section 215 requires that same agent who wants those same 

records, but for a foreign counter-terrorism or foreign counter-intelligence investigation, to go to a Federal judge who sits on the Foreign Intelligence Surveillance Court, write out an application as to 

what he wants and representing that it is for a foreign counter-intelligence investigation or a foreign counter-terrorism investigation, 

and then get a court order for it. 

It is a much, much bigger hassle to do that than it is for a grand 

jury investigator to get the same subpoena which is stroked by an 

Assistant U.S. Attorney. So I think folks don’t realize those details 

that it allows people conducting, frankly, investigations that are 

more important than your garden-variety criminal cases access to 

the records—it simply makes it harder for them. 

The one thing it does that concerns a lot of good people is the 

court order mandates that whoever gets this and provides these 

books and records—and as I said, I think of rental car agencies, hotels, but let’s say it was a library. There is a gag order, a non-disclosure order. I have tried to discuss this at great length with a lot 

of librarians. Anybody who cares about privacy, as all of us do, 

would not want an FBI agent going to a rental car place or a library and saying we are investigating Jim Comey and it is a foreign counter-terrorism thing and so we are going to need these 

records and that is what it is about. Nobody would want that to 

happen, so everybody would have to recognize that the librarian or 

the hotel operator is not going to have the facts. 

So why should, in our highest-stakes investigations, that person 

be in a position to make the call whether to tell Jim Comey that 

his records have been obtained? I mean, it is complicated to think 

about, but if folks follow the thread through, they will understand 

that a non-disclosure order is an important part of our foreign 

counter-intelligence and foreign counter-terrorism investigations. 

The SAFE Act does not, as the Senator said better than I ever 

could, talk about repealing the PATRIOT Act. It actually proposes 

modest changes to provisions of the PATRIOT Act. My concern 

about it is this: I approach all of the criminal tools that I use and 

ask, is something broken? If nothing is broken, then I don’t see a 

reason to change it. 

I don’t believe that the sneak-and-peek, the delayed notification 

search warrant provision is broken. I don’t believe that the John 

Doe roving wiretap provision is broken. So many of these other provisions that the Senators have raised and raised, and explained in 

a very, very— 

Chairman HATCH. I don’t mean to interrupt you, but what about 

Senator Craig’s concern that he trusts you and this administration, 

but there might be a subsequent administration that might abuse 

it? 

Mr. COMEY. Well, I guess you could trust me personally, but you 

should not trust me institutionally because we are a Nation of 

laws. I have devoted my life to that. 

19

Chairman HATCH. What he is saying is he doesn’t trust the institution, or at least— 

Mr. COMEY. And I think all of us should have a healthy maybe 

not distrust, but skepticism of government power. I believe it is addressed in the PATRIOT Act because the PATRIOT Act is chock 

full of judicial supervision, Congressional supervision and inspector 

general supervision. I have all three of those watchdogs in my life 

whenever I want to use the key tools of the PATRIOT Act. 

As I said, the document provision, 215, requires Federal agents 

to go to Federal judges. Grand jury subpoenas don’t involve Federal 

judges. We make reports every 6 months to the Congress how we 

are using it, and as everyone knows, the last time we declassified 

that, we had never used Section 215. But we make detailed reports. 

Our inspector general, who is a very competent and very aggressive person, scrubs us from head to toe on how we are using the 

PATRIOT Act and entertains criticisms of how we have used it. To 

my knowledge, there has been no finding by a court or by our inspector general that there has been an abuse of the PATRIOT Act. 

We had one court strike down a provision of the material support 

statute that was in the PATRIOT Act as vague, and we are still 

pursuing that. 

Our inspector general continues to investigate the Mayfield matter that Senator Leahy referred to. 

I don’t know exactly how the PATRIOT Act would figure there, 

but that is one he said he is looking at. But beyond that, there is 

level after level after level of review and safeguard that is not 

present in the thousands and thousands of criminal investigations 

that we conduct everyday. 

I don’t want to appear rigid or like some sort of maniac, but my 

approach to it is if something is broken, I will look to fix it. If it 

is not broken, I don’t think we should look to fix it. 

What I worry is really broken is people’s understanding of delayed notification search warrants or Section 215. I would prefer 

that rather than change the statute to try to give them comfort 

that people like the Justice Department engage them and explain 

what these tools are and how we are using them rather than 

change the law. 

So I thank you so much, Senator, for having this debate. I look 

forward to it and I look forward to taking your questions. 

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

for the record.] 

Chairman HATCH. Well, thank you. These are legitimate questions that have been raised by our colleagues, but many people 

have expressed concern about Section 213 of the PATRIOT Act 

which permits courts to issue delayed notification search warrants 

in certain narrow circumstances. I have two questions about this 

provision. 

First, could law enforcement investigators obtain delayed notification search warrants before the passage of the PATRIOT Act? 

Mr. COMEY. Yes, sir. For at least 40 years— 

Chairman HATCH. Used all the time? 

Mr. COMEY. Yes, and it was 1979— 

Chairman HATCH. Used in all types of crimes? 

Mr. COMEY. Yes, Senator. 

20

Chairman HATCH. Do you see any reason why it shouldn’t be 

used, delayed notification, in the case of terrorism investigations? 

Mr. COMEY. Oh, certainly not. It doesn’t get used a lot, but it is 

used when it matters most. 

Chairman HATCH. Do you know of any abuses? 

Mr. COMEY. No, sir, and again I would be hard-pressed to see 

how there could be abuses when each of them requires an application to a court and supervision by a court. 

Chairman HATCH. And the court does supervise? 

Mr. COMEY. Yes, sir. 

Chairman HATCH. When you are talking about the court, you are 

talking about a Federal court? 

Mr. COMEY. Yes, a Federal district court. 

Chairman HATCH. The second is could you explain why it is 

sometimes necessary for delaying notice of search warrants when 

there is a belief that witnesses may be intimidated or an investigation may be seriously jeopardized? 

Mr. COMEY. Yes, Senator, and there are examples. I realize that 

is one of the areas that the SAFE Act proposes to address to limit 

it to lives in danger, destruction of evidence, and to eliminate intimidation of witnesses or serious jeopardy to an investigation. 

Again, that doesn’t change the world, but it changes it at the margins where it matters most. 

We had a major drug investigation called Candy Box, a huge Ecstasy case. We were about to lock up about 170 drug dealers and 

one of them came across the Canadian border, I believe, into New 

Hampshire and our informant said he has a huge load of Ecstasy 

in a fake gas tank. 

We had a choice to make again, as I did in Richmond. If we grab 

that guy and serve him with notice of the search warrant, we will 

jeopardize the entire investigation because when we show up the 

next morning, a lot of these 170 are not going to be in their beds 

where we need them to be. So what we did was we got, again, a 

delayed notification search warrant and the agent stole the guy’s 

car. 

He stopped at a rest area to go in and get a snack or something. 

He didn’t steal it, but with court permission took the car and then 

sprinkled broken glass around the parking lot. And then the next 

day, we locked up all of these drug dealers and then made disclosure to this guy that your car wasn’t stolen; the Government has 

it and you are welcome to make application to have it back. 

Chairman HATCH. Well, what I am hearing you say is that this 

delayed notification, very similar to what you are talking about in 

the PATRIOT Act, has been used for decades. It has been used in 

common criminal investigations, in drug investigations, in pornography investigations and in rape investigations, and so forth. 

I think if I understand you correctly, you are saying why would 

we, the Federal Government, be deprived of this same right to not 

notify the criminals that we are coming after them and thus ruin 

a whole investigation in the case of anti-terrorism matters. Is that 

right? 

Mr. COMEY. That is absolutely correct, and in counter-terrorism 

cases you can imagine how it might be even more important than 

in others where we— 

21

Chairman HATCH. But what is wrong with the SAFE Act? They 

say that they will give you 7 days. 

Mr. COMEY. Well, nothing is intrinsically wrong with that, except 

I don’t know why we would do that. Federal judges now decide 

what is a reasonable period of time and that is their case. 

Chairman HATCH. You are saying why should we bind our hands 

if it takes 7 1/2 days or 10 days or 11 days? 

Mr. COMEY. That is correct, Senator. As I said, I am not saying 

that is a crazy idea or there is something unreasonable or intrinsically bad about it. 

Chairman HATCH. It is not crazy at all. 

Mr. COMEY. I don’t see anything broken with having Federal 

judges decide, given each investigation being different, what is a 

reasonable period of non-disclosure. 

Chairman HATCH. Do we put a similar limitation on these other 

domestic criminal activities? 

Mr. COMEY. A similar limitation, Senator? 

Chairman HATCH. A similar seven-day limitation. 

Mr. COMEY. Not that I am aware of. 

Chairman HATCH. In other words, it is up to the courts. 

Mr. COMEY. Yes, sir. 

Chairman HATCH. And we trust the courts to supervise this and 

to make sure that it is not abused? 

Mr. COMEY. Yes, Senator. 

Chairman HATCH. Plus, you are telling me you don’t know of one 

abuse with regard to the use of delayed notification under normal 

domestic criminal activity, or even under the anti-terrorism investigations. 

Mr. COMEY. That is correct, Senator, and something a lot of ordinary folks don’t realize is the warrant requirement that requires us 

to show probable cause to a Federal judge is in the Constitution. 

The notice requirement is not in the Constitution. It is in a rule, 

Rule 41 of the Federal Rules of Criminal Procedure. So there is no 

constitutional issue implicated by the delay for a reasonable period 

of notice. 

These are all warrants that are obtained—again, I have to keep 

saying it because people don’t seem to realize it who are not lawyers or engaged in these issues, that Federal judges issue these 

warrants based on a showing of probable cause to believe that a 

crime is being committed and the fruits of the crime will be found 

at the scene. 

Chairman HATCH. I, like you, wonder why would we want to restrict our Federal investigators and prosecutors with regard to 

anti-terrorism investigations when we don’t restrict them, other 

than getting a court order and the court supervision, with regard 

to normal domestic anti-crime investigations. 

Isn’t that a fair summary? Why would we want to do that? 

Mr. COMEY. Well, it is a fair statement, Mr. Chairman, and the 

way we approach this is exactly as you said that the tools ought 

to be at least as strong on the foreign counter-terrorism and foreign 

counter-intelligence side as on the criminal side. 

Chairman HATCH. Without the 

PATRIOT Act, they wouldn’t be as strong? 

Mr. COMEY. No, sir. 

22

Chairman HATCH. And with the SAFE Act, they would not be as 

strong? 

Mr. COMEY. That is correct. I mean, as I said, they would be 

modified at the margin, but modified in significant ways. 

Chairman HATCH. What you are saying is that the SAFE Act 

would make it even more difficult for Federal prosecutors and investigators to investigate terrorism matters than they currently 

have and the difficulties they have investigating normal domestic 

criminal activity. 

Mr. COMEY. That is a fair statement. I don’t want to overstate 

it, but I do believe that it would make it marginally more difficult. 

And as I said, I approach that by asking why, if I don’t think it 

is broken, I would change it. 

Chairman HATCH. Critics of the PATRIOT Act, and specifically 

Section 215, have called the Foreign Intelligence Surveillance 

Court a rubber stamp. Do you agree with that characterization? 

Why or why not? 

Mr. COMEY. Definitely not. The Foreign Intelligence Surveillance 

Court is made up of Federal judges who, whether they are sitting 

in district or an appellate court or in the Foreign Intelligence Surveillance Court, are never rubber stamps, no matter how long they 

have been on the bench or where they came from. 

I think we have publicly disclosed that last year they rejected 

four of our applications for Foreign Intelligence Surveillance Act 

tools, and they modified, substantively changed, 79 of them. So 

these folks are not just receiving it and saying, okay, Comey’s signature is on it or Attorney General Ashcroft’s signature is on it, so 

we are good to go. They are a very, very challenging audience, as 

they should be. 

Chairman HATCH. Now, just so we all understand it, with regard 

to libraries, before and after the PATRIOT Act—but before the PATRIOT Act, with regard to domestic criminal activities, there was 

absolutely nothing stopping you, as long as you showed probable 

cause and got a warrant, from going into a library and investigating domestic criminal activity. Is that right? 

Mr. COMEY. It would not even require a warrant, Senator. 

Chairman HATCH. You could do it under grand jury subpoena? 

Mr. COMEY. That is right, and we have done it in child pornography investigations, for many reasons. People who want to use a 

computer for illicit purposes are attracting to libraries. We did it 

in the case of this fellow named Regan, who was a spy for the Navy 

who was in a library using the computer to do research related to 

his spying activities. We have approached libraries to try and get 

records to try and verify that Ted Kaczynski was the Unabomber. 

Chairman HATCH. As a matter of fact, that was one of the methodologies you used to catch Ted Kaczynski, the Unabomber, right? 

Mr. COMEY. That is my understanding, Senator. He referred in 

his so-called manifesto to some obscure texts, and after his brother 

said he thought he was the one, investigators confirmed that Ted 

Kaczynski had checked out some of these very, very obscure texts. 

Again, a library is not a sanctuary. Nobody would want it to be. 

Chairman HATCH. Did you have a warrant to go into the library 

to get that material on Ted Kaczynski? 

Mr. COMEY. No, certainly not. 

23

Chairman HATCH. You had a grand jury subpoena, right? 

Mr. COMEY. Yes, that is my understanding. 

Chairman HATCH. In other words, under our domestic anti-crime 

laws, grand jury subpoenas are sufficient enough to go into a library and obtain information that might possibly convict or be used 

against a domestic criminal. But before the PATRIOT Act, you 

could not do the same for a terrorism investigation. 

Mr. COMEY. The counter-terrorism investigator would have to try 

to get a criminal case opened and then try to get a grand jury subpoena because he didn’t have the availability of process the other 

way. 

Chairman HATCH. So it was much more difficult, is what I am 

saying, to do the terrorism investigation than it was to do the normal domestic criminal investigation. 

Mr. COMEY. That is fair, Senator. 

Chairman HATCH. And what we have done in the PATRIOT Act 

is require you to do even more than what has to be done in the 

domestic area, or what is usually done in the domestic anti-crime 

area, because we require you to go to the Foreign Intelligence Surveillance Act and get a warrant before you can go in and investigate the possible terrorist use of library facilities. 

Mr. COMEY. That is correct, Mr. Chairman and we don’t require 

a showing of facts that the person is guilty of something before we 

can get the records with a grand jury subpoena, or else we would 

never get off the ground with criminal investigations. And that is 

one of our concerns with heightening a standard on the foreign 

counter-intelligence and foreign counter-terrorism side. 

Senator FEINGOLD. Mr. Chairman how long are these rounds? 

Chairman HATCH. How has the PATRIOT Act worked, in your 

opinion, with regard to these two provisions, in particular? 

Senator FEINGOLD. Twenty-minute rounds? 

Mr. COMEY. I think it has worked very, very well. 

Senator FEINGOLD. This is a little unreasonable. 

Chairman HATCH. I have never talked to you— 

Senator FEINGOLD. I get similar time. 

Chairman HATCH. You take all the time you want. Go ahead. My 

gosh, I have never denied the minority one minute. 

Senator FEINGOLD. I am just asking. 

Chairman HATCH. And I am getting chewed up because I am one 

minute and 30 seconds over. 

Senator FEINGOLD. Mr. Chairman, all I asked you is how long 

the round was. 

Chairman HATCH. Well, that is fine. It is 5 minutes. 

Senator FEINGOLD. That is all I said to you, Mr. Chairman, and 

that is a fact. 

Chairman HATCH. I apologize for taking longer, but I think this 

is a line of questioning that has to be done. 

Senator FEINGOLD. I just wanted to know how long the round 

was. That is all I said, Mr. Chairman. 

Chairman HATCH. All right. I know what it was said for. Go 

ahead. 

Mr. COMEY. I think that these tools, particularly the delayed notification search warrant and the Section 215, are very important 

tools that work very well. 

24

Chairman HATCH. Well, thank you. 

I have taken seven minutes, two minutes more than I should, as 

Chairman of the Committee. I am going to give you eight minutes. 

How is that? 

Senator FEINGOLD. Mr. Chairman, I obviously had no problem 

with as much time as the Chairman would want. 

Chairman HATCH. Well, it obviously irritated me. 

Senator FEINGOLD. I just wanted to know how long I would have. 

Chairman HATCH. Take whatever time you need. 

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Where to begin on this? I respect your comments, Mr. Comey, 

about the way in which this law has been distorted on both sides 

across the country, but I would submit to you the reason it has gotten so bad with regard to the critics of the bill is the constant inability of this administration to talk about the actual issues within 

the provisions. And I regret that you just continued that practice, 

I am sure not intentionally, but let’s take the examples of the provisions that were just discussed. 

Chairman Hatch walked you through a number of questions in 

order to try to determine under Section 213, the sneak-and-peek 

provisions, that, in fact, delayed notification is something we need. 

No one disputes that; no one has ever disputed that. This is a technique that is being used on this legislation over and over again in 

the Attorney General’s appearances around the country to take a 

red herring. Whether it be the unanimity on taking the wall down 

between the CIA and the FBI or the need for delayed notifications 

or the need to be able to use roving wiretaps, they say, well, we 

need this. Well, everyone agrees. That is not the issue here. 

You said it took you four minutes to explain it. Well, you didn’t 

get at the heart; you didn’t get at the issue that Senator Craig and 

Senator Durbin carefully explained, which is the problem here is 

not that we don’t believe there are many cases, many of which I 

support, where we need delayed notification. It is that the notification put in the statute is indefinitely delayed. 

There is no time limit. You guys don’t have to come back to the 

judge in 7 days, as many of the circuits prior to this required, and 

say we need this renewed. There is no limit; a reasonable time, but 

there is no actual limit. That is the issue. 

So when the Chairman tries to raise the rhetoric here by suggesting that somehow there is somebody on this panel, or frankly 

anybody who believes we shouldn’t have delayed notification in 

some cases, that is not the issue. You are going to continue to have 

this public relations problem, and you have got a big one unless 

you guys start talking about what the actual issue is here. 

Of course, the other issue with regard to Section 213 is how you 

get in that window. As I said, some of these exceptions—flight from 

prosecution, destruction or tampering with evidence—obviously, 

those are the kinds of provisions I support. 

But there is another exception: otherwise seriously jeopardizing 

an investigation or unduly delaying a trial. I would suggest that 

that is so broad—and my colleagues, 20 of us, agree on this, includVerDate 0ct 09 2002 15:09 Apr 29, 2005 Jkt 020355 PO 00000 Frm 00028 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\20355.TXT SJUD4 PsN: CMORC
25

ing many Republicans, as well as members of this panel, that that 

is so broad that it really does undercut what I think most Americans believe is their Fourth Amendment right not just to a search 

warrant, but to notice for that search warrant, except for in very 

limited circumstances. So that is the issue on Section 213 and it 

has not been addressed this morning. 

All we are trying to do here is to fix it. It is actually a very conservative position to try to fix that. 

The same thing with Section 215. I am intrigued by your wondering why this could become the library provision. I understand 

and have always understood that it has much broader implications. 

The library is a very special place on Main Street America. The 

sanctity of the library has always been something that all of us 

grew up to believe in. That is sort of the ultimate place where you 

feel that your right to privacy and your First Amendment rights 

exist. So it should come as no surprise to this administration, if 

they are listening to people, that this is scary to people. 

Again, when you talk about the provision and when the Chairman talks about the provision, you ignore the fundamental fact. 

No, the court is not a rubber stamp. The rubber stamp is written 

into the statute. There is no standard of proof or even relevance, 

as there is in a grand jury proceeding. All it requires is the FBI 

has to say that the information is sought in connection with a terrorism investigation, and the judge has no discretion, Mr. Chairman. The judge has no discretion. The judge must issue the order. 

Why is this different than a grand jury proceeding? The Chairman was walking through the whole grand jury issue and it made 

me wonder when I was going to get a chance to respond. You know 

much better than I do, but I know enough to know that in a grand 

jury proceeding the subject of the subpoena knows that the subpoena has come to him or is coming his way. He has a chance to 

challenge that before the judge; he has a chance to quash it. Under 

this law, the person isn’t even told that this is happening. That is 

a world of difference between a grand jury proceeding and this secret court proceeding. 

So I want everybody to know that what we are trying to deal 

with here is not stopping the Government’s ability to get at library 

records. I tell people at my town meetings, look, if any one of you 

had lunch with somebody from al-Qaeda last week, I want the Government to get everything you have got. 

But for the FBI to have the ability to walk in to a judge and say, 

look, you are giving this to me, and have no discretion, is a frightening intrusion, a frightening concession of power that goes 

against, in my view, the Constitution of this country. 

So, Mr. Chairman, I apologize for my eagerness, but this is terribly important stuff. 

And I respect every one of my colleagues. You all disagreed with 

me on whether to vote for the bill or not. I respect that. That was 

a tough call. We didn’t have very much time. I took extra time, because I was Chairman of the Constitution Subcommittee and I 

thought, well, it is my job, and I didn’t like what I saw. 

Well, I admire my colleagues here for their willingness to say, 

look, let’s fix it. That is all I ever wanted to do. I thought I was 

going to be able to vote for the bill. When I saw the good work of 

26

the then-ranking member and Chairman Leahy at the time, I 

thought these problems would be resolved. Unfortunately, the process melted down. 

But, today, some very reasonable Senators are simply asking 

that you honestly engage in a discussion about how to fix these 

provisions in a way that does not in any way, shape or form harm 

your goals with regard to delayed notification or with regard to legitimate opportunities to get at people’s business records or library 

records. 

So, Mr. Chairman, I appreciate the additional time and let me 

move to a question for Mr. Comey. 

Last month, in response to a question at the Judiciary Committee hearing on the 9/11 Commission report, Vice Chair Lee 

Hamilton was discussing the need for a civil liberties oversight 

board and he commented on powers that Congress had given the 

FBI, DHS and other agencies after 9/11 and how those powers have 

been used. He said, quote—and I don’t know if people heard this 

comment by Mr. Hamilton, but I thought it was pretty amazing. He 

said, ‘‘It is highly classified. I can’t talk about it except to say it 

is an astounding intrusion into the lives of ordinary Americans 

that is routine today in government.’’ 

In your testimony for this hearing today, you said the PATRIOT 

Act provides for ample judicial, Congressional and public oversight 

to ensure that the civil rights and civil liberties of all Americans 

are protected. And then you go on to list the various efforts of the 

Department of Justice to provide oversight. 

Now, I am a Member of Congress and I am on this Committee 

and I don’t know what Lee Hamilton was referring to. Almost all 

the steps you mentioned that are being taken to protect the privacy 

and civil liberties of Americans involve people already within the 

administration. It is as if we in Congress have been asked to trust 

the foxes to guard the hen house. 

What is the Department doing to ensure that Congress has the 

necessary information to make real assessments about whether or 

not privacy and civil liberties of the American people are protected, 

and what steps beyond those already required by law do you believe should be taken to ensure that the American people can trust 

that their rights are being protected? 

Mr. COMEY. Thank you, Senator. We care, as the members of this 

Committee do, passionately about the civil liberties and the freedoms of our fellow Americans. 

We are addressing concerns about how we are using our authorities by complying with—one of the ways is by complying with our 

oversight obligations to make sure that Congress knows how we 

are using FISA in a classified setting, if necessary; how we are 

using the PATRIOT Act, how often we are using 215 and things 

of that sort. 

We are cooperating with our inspector general, who is charged 

with, under Section 1001 of the PATRIOT Act, as I recall, with entertaining, receiving and investigating complaints of abuses under 

the PATRIOT Act. We are answering to Federal judges and seeking 

to use these tools the way they are designed, which is through Federal judges and through making showings in writing and under 

27

oath to obtain warrants and process and many of the things that 

you have mentioned. 

With respect to the Civil Liberties board, I Chair that board and 

I am somebody who takes very, very seriously my commitment to 

my oath to uphold the Constitution of the United States, and that 

board is not going to be some sort of Potemkin board. You are absolutely right. It is made up of people inside the Government, but, 

in my experience, people who care passionately about this and who 

are, many of them, career people like myself who care so much 

about the reputation of our great institution, the United States Department of Justice, and our Government as a whole. 

I know there have been proposals for a board created of outsiders, and frankly I don’t that is necessary to create a board that 

is outside the structure of our Government, when the executive 

branch has an obligation and the legislative branch has an obligation to oversee our actions. 

Senator FEINGOLD. Mr. Hamilton is not known as somebody that 

sort of exaggerates in his comments. What can you say in a public 

setting about his words that there are astounding intrusions on the 

people’s personal liberties? Do you have any idea what that is? 

Mr. COMEY. Maybe I missed it in clips, but the first time I have 

heard the statement was when you quoted it, Senator, and I don’t 

know what he is referring to. 

Senator FEINGOLD. Let me ask you quickly, and then again I will 

wait for another round. We talked about the reports and you were 

talking about how your agency is coming up with the information 

with regard to the PATRIOT Act. But the PATRIOT Act requires 

the Attorney General to provide Congress with semi-annual reports 

on the use of Section 215, the so-called library or business records 

provision. 

The latest report covering the period July through December 

2003 has still not been received by the Committee. It was due at 

the end of June. The Department already told us last year that it 

had never used Section 215 as of mid-September 2003. That means 

we only have three-and-a-half months left in that reporting period. 

How could it be so hard to pull together this report and submit 

it to Congress? I would like to know what the hold-up is, especially 

in light of the fact that suddenly Mr. Goss, who will undoubtedly 

be confirmed today as our CIA Director, said the other day suddenly that the provision has been used. Why aren’t we getting the 

reports required by Congress and when will we get them? 

Mr. COMEY. Well, Senator, you are exactly right. The report has 

not come in yet and I have asked that same question myself. The 

Section 215 report—I am not permitted in this forum to say the 

number, but would not take long to assemble. 

I think what is happening is the Department has an obligation 

to report on FISA broadly, and so the preparation of the report 

about FISA searches and FISA electronic interceptions is very complicated. And so they are putting it all together in one package, as 

is their obligation. I have asked why don’t we just sever off 215 and 

send it? I am told that I am never supposed to commit to any particular dates in a bureaucracy, but I believe by this Friday, that 

report will be to Congress. 

28

Senator FEINGOLD. Thank you, Mr. Comey. Thank you, Mr. 

Chairman. 

Chairman HATCH. Thank you, Senator. 

Let me just clarify one thing that I think I didn’t make clear in 

our interchange. The delayed notice was available in criminal cases 

before the PATRIOT Act. But now that the PATRIOT Act provision 

on delayed notice—that is, Section 213—governs, it governs both 

criminal and terrorism cases. 

I am right on that, aren’t I? 

Mr. COMEY. Yes, you are, Mr. Chairman. 

Chairman HATCH. So the SAFE Act would make it even more difficult to get delayed notice in criminal and terrorism cases, not just 

terrorism cases, but in criminal cases as well; in other words, harder than it was to get delayed notice before the PATRIOT Act. 

Mr. COMEY. It covers both kinds of cases, yes, Mr. Chairman. 

Chairman HATCH. So in other words, it would be even more 

stringent even on domestic crime, and certainly more stringent 

than the PATRIOT Act on terrorist— 

Mr. COMEY. Yes, Senator. As Senator Feingold noted, it would remove two provisions that allow delayed notice where there is a risk 

of serious jeopardy to an investigation or undue delay of a trial or 

intimidation of witnesses, both of which were part of, in different 

circuits, the judicially-created delayed notification rule. 

Chairman HATCH. I just wanted to have that made clear. 

Senator FEINGOLD. Mr. Chairman, can I clarify that point? 

Chairman HATCH. Sure. 

Senator FEINGOLD. It is my understanding that Mr. Comey is 

right that we do eliminate the provision relating to jeopardizing an 

investigation or unduly delaying a trial. But intimidation of potential witnesses—all right, fine, all right. Strike that. I stand corrected. 

Chairman HATCH. Okay, thank you. 

Senator Kyl. 

Senator KYL. Thank you, Mr. Chairman. I have got four specific 

questions. I think I can get them all done. 

Chairman HATCH. Excuse me. I think Senator Craig was next. 

Senator KYL. Oh, I am sorry. 

Chairman HATCH. So, Senator Craig, we will turn to you. 

Senator KYL. Go ahead. 

Senator CRAIG. Well, I will be very brief because, first and foremost, Mr. Comey, I tremendously respect your experience and your 

talent. I feel handicapped when talking about these issues because 

I am not an attorney, and that says therefore I have never had 

need to study the law or to practice it in detail the way you have. 

But I do think I have some understanding of how it works, and 

on the issue of delayed notice or sneak-and-peek—and I can understand why you choose not to use the words ‘‘sneak-and-peek’’—I 

was sitting here applying it to the circumstance that you were giving us of actual practice as it related to that drug crowd moving 

into Richmond. And I was saying is there anything in the SAFE 

Act and its provisions that would have stopped you from continuing 

to do exactly what you did with the way you did it and the successful way you accomplished it. I concluded there was not. 

29

Now, I would suggest this: Our provision does not tie your hands 

with a heavy cable. It ties your hands with a satin ribbon. There 

is a slight tug in 7 days. You have go to back to the judge and 

therefore gain an extension, and another and another. And in the 

circumstance that you so vividly painted, would you suggest that 

a judge would not have extended that? 

Now, let me add to that. We went to the Justice Department and 

asked what is the average time that a judge allows, and the word 

was 7 days. If it takes 8 or 10 days, if that is more practical, I am 

willing to amend or adjust or change. But to suggest that an uncontrolled extension of time or no time, and to suggest that a judge 

is going to be dutiful in saying, gee, I think it was about 7 days 

they came to me, I had better check in on that—that is not going 

to happen either. 

But the question is simply this: Would these provisions—and I 

think you accurately said they are adjustments around the edge—

would it have changed your ability to do what you did in Richmond? 

Mr. COMEY. No, I don’t believe that it would have, except as you 

said, Senator, we would have to go back to the judge. Rather than 

him saying—and I can’t remember exactly whether you can extend 

it for 60 or 30. We would have to go back every seven. 

The case that I mentioned with the seizure of the Ecstasy—I 

think that would be affected. In the Richmond case we could use 

the ‘‘lives in danger.’’ The one with the Ecstasy case where the interest was in making sure that we were able to arrest all the bad 

guys the next day, I think, although I could make arguments to try 

and shoe-horn it someplace else, that I would need that ‘‘serious 

jeopardy to an ongoing investigation’’ prong there. 

But you are exactly right. The 7 days is not the end of the world, 

and I explained in my opening why I approach it, though, from a 

presumption that it is not appropriate. 

Senator CRAIG. I look at it from a different perspective. I don’t 

want your hands to be tied, but I want to make sure that you recognize the importance of the law and the right of a free citizen. So 

there has to be a little test, a stronger test, a slightly tougher test, 

not a trip wire, but a tether rope that tugs at you and causes you, 

the law, to do the right thing. 

I have never questioned you not doing the right thing. I am too 

respectful of you and the work you have done, and I say that both 

to you individually and collectively. But I know why you are good 

at what you do, because the law is specific. If it were not, you 

would do it differently in certain circumstances and certain cases, 

under certain conditions, because you are human, and so am I. 

We want the law to go beyond that and that is what we try to 

do in making slight adjustments. 

Senator Feinstein was right. We don’t repeal. I am for the PATRIOT Act, but I am for some slight safeguards along the way. 

Now, let me ask this in relation to Section 215. Opponents of the 

SAFE Act are emphasizing the involvement of FISA judges. However, how much discretion does a judge really have when the 

threshold standard sought for an international terrorism or intelligence investigation is so low and the possible result of obtaining 

30

sweeping records is so severe? I think Senator Feinstein put it one 

way and I put it a slightly different way. 

Mr. COMEY. I think that Senator Feingold stated it accurately 

that the judge is not required to make any finding other than that 

the application meets the requirements of section 215. That is true, 

though, in a host of provisions under which we obtain information, 

for example, pen registers to record the numbers dialed from a 

phone and the numbers received from a phone. All we have to do 

as criminal investigators is represent that it is relevant to our investigation and the judge has no discretion to deny a pen register. 

The reason that I don’t think that should concern people is people need to focus on what is being obtained. We are obtaining preexisting records under 215 that can be obtained, frankly, with no 

showing under a grand jury subpoena. I think folks tend to mix together searches and things of that sort. This involves going to 

someone who has preexisting records, serving process on them and 

obtaining that. 

On the criminal side, as I said, that requires no involvement of 

a judge. In 215, it involves a judge reviewing a representation that 

it is sought in connection with the appropriate investigation. 

Senator CRAIG. So you see that the adjustments we have made 

to 215 in the proposed SAFE Act amendments as tremendously 

tying your hands, or just causing you a little tougher test? 

Mr. COMEY. Well, the express insertion of a relevancy test would 

not significantly tie our hands, because it is implicit anyway. That 

is the way we read it already. 

What would tie our hands is if there is a requirement than an 

investigator make a showing of specific and articulable facts to believe that the person is a terrorist. 

We are often getting anonymous tips and going out secretly, because we don’t want good people to be smeared, to get records in 

criminal cases and in counter-terrorism cases. If we ever have to 

make a showing before we can get the records to check out the tip, 

we have established a very serious hurdle. 

That is the part that concerns me most. 

Senator CRAIG. I don’t dispute that that is a tough call. 

That is also what protects a lot of free citizens. 

Thank you. 

Chairman HATCH. Senator Durbin. 

Senator DURBIN. Thank you very much. 

Mr. Comey, thank you for being here and thank you for serving 

our Nation. I have to tell you that though I have many differences 

with the Department of Justice, I have the highest respect for you. 

I think you have served our Nation well in many capacities and 

continue to do so to this day. Thank you for joining us. 

Let me also say that I am relieved to hear you say that the 

SAFE Act, in your words, would result in a modest change to the 

PATRIOT Act. That is a dramatic change in tone from the statement made by the Attorney General, who described the SAFE Act 

as, quote, ‘‘unilaterally disarming American defenses,’’ ‘‘risking 

American lives,’’ ‘‘eliminating some of the PATRIOT Act’s most critical new tools.’’ 

31

I think you are right. I think our changes are modest and are 

specific, and we are prepared to discuss with you and with every 

member of the Committee the best way to deal with them. 

Let me say, as well, that I would like to go through three or four 

areas that we have talked about here and then leave it open if you 

would like to make a note or two at the end for your comments on 

each. 

Section 213, delayed notification. You said at one point, keep in 

mind that we are talking not about a constitutional right to notice, 

but a right created by Federal rule; I believe you said Rule 21. Yet, 

if you read one of the circuit decisions in Freitas, here is what they 

said: ‘‘The absence of a notice requirement in the warrant presents 

a much more difficult issue. While it is clear that the Fourth 

Amendment does not prohibit all surreptitious entries, it is also 

clear that the absence of any notice requirement in the warrant 

casts strong doubt on its constitutional adequacy. We resolve these 

doubts by holding that in this case the warrant was constitutionally defective in failing to provide explicitly for notice within a 

reasonable, but short, time subsequent to the surreptitious entry. 

Such time should not exceed 7 days, except upon a strong showing 

of necessity.’’ 

So the court disagrees with you. They argue it is a Fourth 

Amendment issue, it is a constitutional issue. We all envision a 

person knocking on the door saying, I have a warrant to search 

your home. That is notice. Now, we are talking about a situation 

where agents search your home and you don’t know it. You don’t 

know they have been in your files, in your computers, in your closets, that they have looked at everything in your life. The court has 

said that really is in the area of unreasonable search and seizure, 

and I think that is important. 

Secondly, when it comes to this issue about libraries and whether 

they are overreacting, I think there is a clear difference, as Senator 

Feingold pointed out, between grand jury subpoenas. You are given 

notice of a grand jury subpoena that they are about to take your 

records. You can go to the court to quash that subpoena and say 

it should not issue. 

Secondly, you clearly aren’t dealing with a gag order situation. 

Finally, the standard in the PATRIOT Act, I hope you will concede, 

is lower than the standard of relevance that is required when it 

comes to grand juries. In other words, the Government has to make 

less of a case to seize library records, a lower standard that they 

currently do under a grand jury subpoena, which at least requires 

relevance. As Senator Feingold has said, these records are being 

sought for a terrorism investigation. 

When we asked you how do we know that we can trust the Government, you said, and I think accurately, a lot of people are looking over your shoulder—judicial supervision, Congressional supervision, inspector general supervision. But the point made by Senator Feingold is a relevant point. 

The reports that you are supposed to give us so that Congress 

can look over your shoulder are long overdue. I am glad to hear 

that Friday they will be coming, and I think that that is important. 

There is also an argument made on your side that since we have 

really had no complaints about the PATRIOT Act, and there have 

32

been no lawsuits filed, why all the stir, why all the furor? Well, a 

lot of the people who are being investigated under the PATRIOT 

Act may not know it. They may not know that they are the targets 

of a roving wiretap or an undisclosed search of your home or an 

undisclosed search of records at a library or a business. 

So I don’t know if you made your case very strongly by saying 

people who are not aware that their rights are being violated 

haven’t filed lawsuits. 

The last point I would like to make to you relates to the Civil 

Liberties Board. I think that the 9/11 Commission got it right. 

They said, ‘‘At this time of increased and consolidated government 

authority, there should be a board within the executive branch to 

oversee adherence to the guidelines we recommend and the commitment the government makes to defend our civil liberties.’’ They 

went on to say, ‘‘Our history has shown us that insecurity threatens liberty. Yet, if our liberties are curtailed, we lose the values we 

are struggling to defend.’’ 

The Civil Liberties Board which you have said you support by executive order is a dramatic contrast from the one that is being entertained by the Governmental Affairs Committee upstairs. The 

difference is this: The Civil Liberties Board that the President has 

created by Executive order to guard our liberties is a board that 

is made up of people already in the administration and in the Government. It is as if we are saying to a baseball player, call your 

own balls and strikes. 

Really, what we need is what Governor Kean said when I asked 

him directly this question, whether the executive order served the 

purpose stated in the 9/11 Commission report. He said that he believed—and I agree—we need ‘‘a disinterested perspective;’’ we 

need someone with objectivity, someone with knowledge when it 

comes to civil liberties to really look long and hard at what is being 

done by the Government to see if they have gone too far. 

I think the executive order creates an in-house operation, chaired 

by the Department of Justice, which will not bring this objectivity 

to the question. The Governmental Affairs Committee is going to 

change that, I hope. 

I invite your response to all or any part of that. 

Thank you. 

Mr. COMEY. Thank you, Senator, and perhaps I could start with 

the Civil Liberties Board. I think the Department of Justice has 

earned over centuries a little bit more of a reasonable doubt on 

this, a little bit of presumption of regularity that we can call balls 

and strikes in-house, because we do it every single day. 

We prosecute political corruption. We investigate employee misconduct. We prosecute civil rights cases all over this country that 

involve Government officials. We clean our own house very aggressively; we clean the houses of other agencies very, very aggressively. This is what we do. 

The only thing I would ask with respect to the Civil Liberties 

Board is, given that track record, folks would give us a chance. 

We created these institutions of Government to be able to address issues about civil liberties and concerns about civil liberties, 

and I believe that we can and that we have a record that shows 

that. 

33

Senator DURBIN. If I could just make one comment, I am old 

enough to remember the era of J. Edgar Hoover. Thank God, it is 

gone. Thank God, we don’t have an FBI Director—instead, we have 

a wonderful man, a great public servant in Bob Mueller. 

But we have to be sensitive, as Senator Craig has said, to the 

fact that administrations change, directors change. And if we are 

going to guard basic liberties, don’t we want someone on the outside looking in, as opposed to someone on the inside that may have 

the mind set of a darker era of the Hoover at the FBI? 

Mr. COMEY. Senator, if I could just briefly address what I think 

is some confusion about how criminal investigators obtain documents compared to counter-intelligence investigators using 215, 

when we issue a grand jury subpoena, we do not give notice to the 

person whose records we are seeking. In other words, if we go to 

a rental car agency and seek the records of Jim Comey, we don’t 

tell Jim Comey we are seeking it. The rental car agency knows we 

have seized the records. We have no obligation to notify the citizen. 

Gag orders are major feature of criminal investigations. When we 

serve a bank with a subpoena for Jim Comey’s bank records—and 

I hate to keep using me, but if they are seeking my records, that 

bank is required by statute not to tell me. It used to be we had 

to give them non-disclosure orders, and then it was written into the 

law they cannot tell me that they have sought my records. That 

happens literally thousands of times every year in the United 

States. 

The reason is important is that secrecy. We investigate a lot of 

innocent people and we don’t want them smeared. We also investigate a lot of guilty people; we don’t want them to know we are 

coming. I think what we have done with the PATRIOT Act is simply take that concept and put into the world of counter-terrorism 

and counter-intelligence. 

Chairman HATCH. Senator Kyl. 

STATEME OF HON. JON KYL, A U.S. SENATOR FROM THE 

STATE OF ARIZONA 

Senator KYL. Thank you, Mr. Chairman, and I want to thank 

Senator Cornyn for allowing me to go before him. 

Just two quick comments, and then I have four specific questions 

and I think they can all be answered fairly quickly. I now notice 

that to one degree or another, I think you have addressed all of 

them in some way. 

Let me just make two preliminary comments. Those who served 

with then-Senator, now Attorney General John Ashcroft know that 

he is a person very strongly personally committed to privacy rights 

and civil rights. I know because I had some disagreements with 

him when we were dealing with the Internet, and he is a tiger 

when it comes to protecting privacy rights. He worked, I know, 

with Senator Feingold on racial profiling and the like. I just want 

to make it clear that I know he has instilled that same strong support for privacy rights in his Department and that nobody can suggest that he is not committed to that. 

Secondly, the reason I wanted to put Vice President Cheney’s 

comments in the record is that when the Ranking Member used 

words like ‘‘outrageous’’ and ‘‘dark side,’’ and even invoked the 

34

name of Joe McCarthy to smear the Vice President, I didn’t think 

that he was being accurately quoted. 

Chairman HATCH. You mean the Vice President. 

Senator KYL. Did I say the Vice President? 

Chairman HATCH. No. You didn’t think the Vice President— 

Senator KYL. The Vice President was accurately quoted. So I 

think his comments need to be put in the record and I will see that 

that is done. 

Let me just ask four specific questions, since I am not going to 

be able to be here for Congressman Barr’s testimony. But in his 

written testimony, he says that the PATRIOT Act, and I am 

quoting now, ‘‘is the only criminal statute Congress has ever passed 

that authorizes law enforcement agents to get a warrant to secretly 

search a person’s home for evidence of a crime.’’ 

Now, it is my understanding that it was 36 years ago that the 

Crime Control and Safe Streets Act was enacted, and in this Congress enacted delayed notice authority when it authorized the use 

of wiretaps in criminal investigations. 

Am I correct or is Congressman Barr correct? 

Mr. COMEY. You are correct, Senator, with respect to wiretaps 

and notice about whether someone was intercepted on a wiretap. 

He is correct in that the rule about delaying notification of search 

warrants was judicially created by judges from all political parties 

because it was needed. 

Senator KYL. So it is not a criminal statute, but it has been judicially created. Got it. 

Second, at page 8 of his written testimony, he states that the PATRIOT Act’s codification of judicial common law allowing delayed 

notice searches—I guess this is now what he would be referring to 

there—‘‘is so overly broad that it cannot help but be over-used.’’ 

Those are his words. 

You have noted that it requires periodic reports by the inspector 

general, the current one, by the way, having been appointed by 

President Clinton. The PATRIOT Act also allows that any aggrieved individual can bring a civil action in the event of abuses 

of the PATRIOT Act. 

Are you aware of any evidence that the PATRIOT Act’s delayed 

notice provisions have been abused? 

Mr. COMEY. No, Senator. 

Chairman HATCH. All right. At page 10 of his written testimony, 

former Congressman Barr states that the PATRIOT Act’s extension 

of roving wiretap authority to terrorism investigations, quote, ‘‘allows FBI agents to engage in investigative fishing expeditions 

against anyone who meets the general physical description in the 

surveillance order.’’ 

It is my understanding that even though the Government may 

not know the actual name of a target of a PATRIOT Act wiretap 

that the wiretap can still only apply to a specific person, even if 

the Government only knows his alias. 

Is that correct or is Congressman Barr correct? 

Mr. COMEY. That is correct, and we have to provide—as we do 

when we indict John Does, for example, we have to provide a description, everything we know about the person, because we are foVerDate 0ct 09 2002 15:09 Apr 29, 2005 Jkt 020355 PO 00000 Frm 00038 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\20355.TXT SJUD4 PsN: CMORC
35

cused on an individual terrorist. I read Congressman Barr’s testimony and I don’t think he fairly characterized it. 

This is a tool that would be very rarely used, but when you need 

it, you really, really need it because you have got a terrorist. You 

know who he is, you know his physical description. 

You don’t know his name and you know he is jumping from 

phone to phone, and that is the kind of thing that keeps me up at 

night. 

Senator SESSIONS. Senator, people are indicted under the name 

John Doe. You indicated that. Is that correct? 

Mr. COMEY. Yes, Senator. In the Khobar Towers bombing case, 

I indicted the Lebanese bomb-maker who I know has a tattoo in 

a particular place. And I can describe him; I know his eye color. 

I don’t know his name, so I indicted him as John Doe and then described him in the indictment. 

Senator KYL. Good, thank you. And a final question: at page 11 

of former Congressman Barr’s testimony, he states that the PATRIOT Act would allow, and I am quoting him again, ‘‘randomly 

wiretapping apartments in an apartment complex because they 

have a hunch that a single suspect fitting their general description 

might be in one of them.’’ 

Is there any circumstance that you know of under which that 

could be true? 

Mr. COMEY. That is what I meant when I said I don’t think he 

accurately described it. I can’t imagine how we would be able to do 

that using the authorities of the PATRIOT Act. 

Senator KYL. Well, I want to thank you for your clear testimony. 

I know it may take four minutes to describe some of this, but it 

is very, very important that people with direct experience like you 

relate that experience to compare what authority you have under 

existing criminal laws and how that has been used with the in 

many cases more restrictive authority granted to try to go after terrorists, but which authority is nevertheless very, very important. 

And it may be rarely used, but when it does need to be used, as 

you have pointed out, it is critical that that authority exists. I also 

appreciate your reference in your written testimony to the numerous safeguards that we have embedded in the PATRIOT Act as 

well. 

So thank you for your service, and thank you, Mr. Chairman and 

Senator Cornyn. 

Chairman HATCH. Thank you, Senator Kyl. 

Senator Feinstein. 

Senator FEINSTEIN. Thanks very much, and thank you, Mr. 

Comey, for being very straight in your answers. I appreciate it very 

much. It is also my understanding that DOJ will send a report this 

Friday that will inform Congress how often Section 215 has been 

used. 

Is that correct? 

Mr. COMEY. That is correct, Senator. 

Senator FEINSTEIN. I appreciate that. 

Mr. COMEY. I said that I have been told you don’t ever want to 

give exact dates, but I have pressed the troops and I am confident 

we are going to get it up here on Friday. 

36

Senator FEINSTEIN. All right, fine. Section 1001 of the PATRIOT 

Act requires DOJ to collect and investigate allegations of civil 

rights and civil liberties abuses by DOJ employees through the office of the IG. The OIG reports many of the allegations and the resolutions on its website for the public to view. 

My question is can you tell us how many civil rights complaints 

under the PATRIOT Act have been referred to OIG, to the Civil 

Rights Division of DOJ, for criminal prosecution? 

Mr. COMEY. I am not aware of any, Senator. I believe that the 

inspector general has reviewed all of them and found either they 

are patently ridiculous or relate to something not on the PATRIOT 

Act. But I am not aware of any that he has found of sufficient 

credibility to refer for criminal investigation. 

Senator FEINSTEIN. That is one of the problems that I have had 

for a long time, is when you really look into complaints, you find 

that they are really not related to the PATRIOT Act. 

Now, the second question is can you tell us, of the cases referred 

to the Civil Rights Division, how many cases resulted in criminal 

prosecution for violation of civil rights under the PATRIOT Act? 

Mr. COMEY. Well, there have been none, Senator, as we have discussed, because I am not aware of any referrals to the Civil Rights 

Division. 

Senator FEINSTEIN. Now, Section 412 states that if an alien has 

been detained solely under that section because he is a threat to 

national security, but his removal from the United States is unlikely in the foreseeable future, the Attorney General may continue 

to detain him for an additional period of up to 6 months. 

According to a booklet prepared by your Department called ‘‘The 

US PATRIOT Act: Myth Versus Reality,’’ to date the AG has not 

used Section 412, but believes that this authority should be retained for its use in appropriate situations. 

Is that true? What would the appropriate situations be? And 

since it has not been used thus far, should we keep it? 

Mr. COMEY. Senator, I am aware of the report where it hasn’t 

been used. I think that is true as of today that it hasn’t been used. 

I think it is one of these tools, as I mentioned with respect to the 

John Doe roving wiretap, that you are not going to need much. But 

when you need it, you really need it. 

The situation I envision is where you have a person whose deportation would lead to him harming people overseas or reentry into 

the United States and you can’t use the normal tools of the immigration system to continue to detain him. That would be an extraordinarily unusual situation, as evidenced by the fact that the 

AG has never had to do it. But to me, that doesn’t counsel in favor 

of taking it off the books. 

Senator FEINSTEIN. Now, I want to ask you a question about the 

SAFE Act. As you know, we had a hearing last week on the SAFE 

Act, which has been introduced by my friend and colleague, Senator Kyl. We got on the subject of administrative subpoenas, which 

I know the FBI feels is a need. 

The question I would have is, as a kind of check measure, would 

there be a problem in the case of an administrative subpoena if the 

law required the sign-off of a United States Attorney? In the event 

that a grand jury is not meeting, a call would be to a U.S. Attorney 

37

and that U.S. Attorney would be required, day or night, to sign off 

on an administrative subpoena? 

Mr. COMEY. I think it is in the Tools for Fighting Terrorism Act 

that Senator Kyl has introduced. I don’t know that that would be 

the end of the world, but I think the reason that the FBI—and they 

articulated it, I think, quite well—believes that they need this administrative subpoena ability is to be agile when they are not able 

to hook up with an Assistant United States Attorney or a grand 

jury is not in session. 

I think they can make a strong case that we need it for those 

circumstances where we are in the middle of nowhere and we have 

to give somebody process to be able to obtain a record that is critical. 

Senator FEINSTEIN. Thank you. Let me correct something I said. 

It wasn’t the SAFE Act. It was Tools for Terrorism, which is kind 

of a compendium of additional measures. At least in my view, it is 

a bit premature to take those additional measures right now, until 

we have, I think, our oversight hearing on the PATRIOT Act and 

make a decision on the 16 sections that expire, with the one possible exception of this administrative subpoena. 

I would have a hard time giving the administrative subpoena 

right without some kind of check. In talking with people about it 

in law enforcement, they say, well, it is given in other areas such 

as health care law, and the real need for it is as an aid to, say, 

a hotelier who may be reluctant to provide a certain record of hotel 

use without subpoena power. 

Yet, if you really think about that subpoena power, it could be 

used incorrectly, as well. Therefore, I think the sign-off by a U.S. 

Attorney, particularly because most grand juries are not in session 

all the time, is warranted. 

Senator SCHUMER. You can always reach a U.S. Attorney. 

Senator FEINSTEIN. Yes, you can always reach a United States 

Attorney. 

You are raising your eyebrows. You don’t think so? 

Mr. COMEY. No. I obviously have a bias toward U.S. Attorneys. 

That is what I do for a living, and I like the FBI to be involved 

in my life, but there are times—and I don’t mean that in a personal way. 

Senator SESSIONS. Trust me, there is history here. 

Mr. COMEY. Yes, but I think I articulated the argument in favor 

of it and it is the situation that you alluded to, Senator, that you 

have got a hotel desk clerk; it is the middle of the night. You need 

to see that registration book and he is not going to give it to you, 

and he says I need some sort of process. 

Well, the argument for the administrative subpoena is I need to 

be able to cut that, give it to him, and the risk of over-use would 

be addressed by a reporting requirement that a list of every time 

that we have done it be provided to the oversight committees, the 

circumstances and when. 

Senator FEINSTEIN. Thank you. My time is up. Thanks, Mr. 

Chairman. Thank you, Mr. Comey. 

Chairman HATCH. Thank you, Senator. 

I forgot to put Senator Durbin’s remarks into the record immediately following his question period. 

38

Senator Cornyn. 

Senator CORNYN. Mr. Comey, if that hotel desk clerk doesn’t give 

you the registry, what happens next in response to an administrative subpoena? You have to go to a judge, right? 

Mr. COMEY. And seek enforcement of it, yes. 

Senator CORNYN. So there is judicial review both under this delayed notification search warrant that we have heard called sneakand-peek, and under the administrative subpoena. We have always 

got a judge in the picture providing judicial review. Would you 

agree? 

Mr. COMEY. Yes, Senator. Judges are all over my life, and that 

is also a good thing. 

Senator CORNYN. Mr. Comey, if I truly believed that the USA 

PATRIOT Act had deprived Americans of their civil liberties, I 

would be outraged, and I and my colleagues here would be all over 

you and everybody else whom we thought perhaps was aiding and 

abetting the abuse of the civil liberties of the American people. But 

I don’t believe it based on what the evidence is. 

But I do think it is good for us to have a debate, a discussion 

of the SAFE Act, even though I am not for it, and a discussion of 

the USA PATRIOT Act, for the very reason that you said earlier, 

because people just flat are misinformed about what the PATRIOT 

Act contains and what it has done and how it is responsible for 

making the American people safer. So I think responsible debate 

is good, and discussion, to help educate everybody, including us. 

But I think irresponsible suggestions—you know, I don’t know 

why we got into, when the Ranking Member started speaking, talking about enemy combatants and the Vice President’s statement. I 

am not asking you to comment on any of that, but let me just ask 

you this. The 9/11 Commission 3 years after 9/11 said America is 

safer but not yet safe. 

Do you recall that phrase? 

Mr. COMEY. Yes, Senator. 

Senator CORNYN. And I would submit to you, Mr. Comey, the 

reason why America is safer is because Congress and the administration did not wait 3 years to begin to respond to the deficiencies 

we saw that allowed 9/11 to occur; for example, creation of the Department of Homeland Security, creation of the Terrorism Threat 

Integration Center, passage of the PATRIOT Act, which, as we 

heard during some rather famous bits of testimony before the 9/11 

Commission, tore down the wall that prevented the sharing of information between intelligence agencies and law enforcement. 

Indeed, the one thing that sunk in the most to me was we no 

longer regard terrorism as strictly a criminal act. We are out to 

stop the bad guys before they hit us. Indeed, I believe that the 9/

11 Commission said it quite eloquently, and indeed we are safer as 

a result of these actions. That doesn’t mean there is not more that 

we can do, but indeed I think the SAFE Act, with all due respect—

and I certainly do respect the suggestions, but I just disagree with 

them. 

I don’t think that the SAFE Act would make us any safer. 

Indeed, I think it is a solution in search of a problem in many 

respects because I am reminded of something that Senator Feinstein said during a previous hearing. She said she had gotten tens 

39

of thousands of complaints from constituents and others about the 

PATRIOT Act. But being the diligent Senator that she is, she did 

an investigation to see whether there had been any actual abuses 

of the PATRIOT Act, and indeed came up with a big goose egg, 

that there had been no demonstrated abuses of the civil liberties 

or the rights of the American people as a result of the USA PATRIOT Act. 

So I worry in this area that what we are not left with is rational 

debate and discussion which helps elevate the level of understanding of the American people and the U.S. Congress, but unfortunately some despicable tactics used by groups, frankly, to raise 

money and to engage in ideological attacks. 

Indeed, I have received at my residence at least two mailings 

from the 

American Civil Liberties Union demonizing the PATRIOT Act 

and the Attorney General of the United States. So I am struck by 

what a wide gulf there appears to be between the facts and rational discussion, as we should have, and the kind of hysteria and accusations without foundation that we see in this area. 

So I do applaud you and the Department of Justice for the work 

you are doing. I think the work you are doing and have done has 

helped to prevent another attack on our own soil, and for that I applaud you and everyone who is working so diligently throughout 

the U.S. Government to make us safe. 

I think what we ought to do is look at issues. There was some 

reference to the Tools to Fight Terrorism Act, which would enhance 

the criminal penalties for possession and trafficking in weapons of 

mass destruction, the use and trafficking of man-held surface-to-air 

missiles that could endanger civil aviation. 

I know we are not talking necessarily about the Tools to Fight 

Terrorism Act here, but I know you are familiar with it. Could you 

just comment generally, please, on how you believe, if you do, that 

that Act would help make us even safer today? 

Mr. COMEY. I think in a number of smart and fairly ordinary 

ways, such as creating a presumption against release for someone 

charged with a terrorism offense. As I explained earlier, the administrative subpoena tool is one that wouldn’t be used a lot, but that 

might matter very, very much in an important investigation. So I 

see those as important supplements to the work that we are doing. 

Senator CORNYN. Thank you. I see my time has expired. 

Senator SESSIONS [PRESIDING.] Senator Schumer. 

STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR 

FROM THE STATE OF NEW YORK 

Senator SCHUMER. Thank you, Mr. Chairman. 

I want to thank you, Deputy Attorney General, for doing the excellent job that you are doing. Many of us have some disagreements with your boss, not so much within the confines of the PATRIOT Act. I think most of the complaints are outside the confines 

of the PATRIOT Act and they get lumped together. 

I think the argument that we heard from my good friend, whom 

I don’t agree with on this issue all the time, is—and I hear it all 

the time—how can they subpoena your records and not let you 

know? Well, that has been done in criminal justice forever. In fact, 

40

if you are a potential criminal and they let you know, you are going 

to cover your tracks. So why should it be different for terrorists 

than for anybody else? 

There are all these hues and cries that are way beyond what has 

actually happened. 

That is not to say the PATRIOT Act probably doesn’t need some 

changes. I think you can find an Assistant U.S. Attorney any time, 

anywhere. Your experience with criminal justice is much greater 

than mine, but I know enough that at three in the morning when 

a police officer or a detective needs something, they find somebody. 

We ought to try to have procedural safeguards, not change the 

way we criminally investigate, but procedural safeguards to make 

sure that things aren’t abused. I think we can find a happy-medium common ground here that keeps the basis of the PATRIOT 

Act and modifies it where there are some excesses. 

But I do have to say as somebody on the left side, some of the 

hues and cries on the left remind me of some of the hues and cries 

on the right from the NRA and others; you know, nose under the 

camel’s tent; well, doing this isn’t bad, but it might lead to something way down the road. That is not the way we should govern. 

That is not the way we should legislate. 

I was against when our Chairman wanted to renew the PATRIOT Act. We said let it sunset because there is a very delicate 

balance between liberty and security in this terrorist age. We 

should go over it, but we should go over it carefully with the facts. 

I find myself in some agreement with my colleague from California 

here. So I am not going to get into the SAFE Act now. I think we 

should do a comprehensive review when the time comes, although 

I appreciate the hearing. 

I would just like to do two things. One, at the request of Senator 

Leahy, I would like to verify that this transcript of Vice President 

Cheney’s remarks he has referred to earlier be put in the record, 

because there was some dispute as to what he said. 

Senator SESSIONS. I believe Senator Kyl indicated he will offer it 

and we will put it in the record. 

Senator SCHUMER. Well, I am offering it right now. I ask unanimous consent that it be put in the record. 

Senator SESSIONS. So ordered. 

Senator SCHUMER. I am going to read the operative clause because Senator Leahy was right in what he said. Here is what the 

Vice President said, not that it is relevant to this hearing: ‘‘We’re 

now at that point where we’re making the kind of decision for the 

next 30 or 40 years, and it’s absolutely essential that 8 weeks from 

today, on November 2nd, we make the right choice, because if we 

make the wrong choice, then the danger is that we’ll get hit again, 

that we’ll be hit in a way that will be devastating from the standpoint of the United States, and that we’ll fall back into the pre-9/

11 mind set, if you will, that, in fact, these terrorist attacks are 

just criminal acts and we’re not really at war. I think that would 

be a terrible mistake for us.’’ 

Senator SESSIONS. Do you want to make that a part of the 

record? 

Senator SCHUMER. Yes. 

41

Senator SESSIONS. I think how we handle the war on terrorism 

could well increase the risk to the people of the United States. 

Senator SCHUMER. Well, no one would dispute that. That is not 

what was the point of contention about what the Vice President 

said, as we all know. I have a few other questions. 

Since we get you here so infrequently and your boss even less 

frequently, I am going to go a little bit afield and ask you. As you 

know, I have been really concerned about our relationship with 

Saudi Arabia, and I think there were are close to not tough 

enough. We are talking about the PATRIOT Act here, but I think 

we let a lot of things just go undone. 

One of the areas that has troubled me greatly is the way we handle the investigation of possible Saudis who are in this country. 

Last month, the GAO reported that U.S. law enforcement and intelligence agencies failed to review thousands of Saudi visa applications submitted and approved during the 2 years prior to the 9/11 

attacks for possible connection to terrorism. In other words, there 

still may be Saudi terrorists in the U.S., but there is no way we 

would know because we have made no effort to track them down. 

That, to me, is unconscionable, unacceptable, and frankly unbelievable. 

Three years after these families lost their loved ones, 3 years 

after the PATRIOT Act, 3 years after we structured law enforcement’s counter-terrorism unit to be more proactive, thousands of 

Saudi visa applications remain unexamined for any possible connection to terrorism. 

I wanted to ask you how did this happen and what is being done 

to fix it. 

Mr. COMEY. Senator, I do know something about that. I don’t believe I can discuss it in this forum, but I would be happy to find 

a way. 

Senator SCHUMER. Okay. If we could, if we have to meet up in 

407, you know, the cone of silence room or whatever, I would like 

a commitment from you to come and give me an explanation of 

that, if that is okay. 

Senator FEINSTEIN. I would like to hear it, too. 

Senator SCHUMER. And invite any of my colleagues who wish to 

come. The Senator from California indicates that she would like to 

be part of that. 

Let me give you another one. Last month, the GAO reported that 

nine of the ten officers who have staffed or are staffing the U.S. 

visa security office in Saudi Arabia don’t speak or read 

Arabic. The GAO commented that this illiteracy in Arabic limits 

their effectiveness and reduces their contribution to the security of 

the visa process. That seems like an understatement to me, so I 

want to know why are we sending Americans who can’t speak or 

read Arabic to run the Saudi visa office. 

Mr. COMEY. That one I don’t know anything about, Senator. I assume from the visa office it is a State Department function. I can 

make inquiry and— 

Senator SCHUMER. But it relates to the Justice Department and 

who comes into this country and who doesn’t. If you could get me 

an answer to that, I would appreciate it. 

Mr. COMEY. I will follow up on that, Senator. 

42

Senator SCHUMER. Thank you, Mr. Chairman. My time is up. 

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM 

THE STATE OF ALABAMA 

Senator SESSIONS. I believe it is my time, and then I believe Senator Kennedy is next. 

Mr. Comey, I want to first say to you I think you are one of the 

finest witnesses that has appeared before this panel in many years. 

You understand law enforcement, you understand the history of it. 

You understand the PATRIOT Act. You understand its practical 

implications. If people would just listen to what you have said, 

their blood pressure is going down. 

This is, as I have always said, mainly an incremental act, mainly 

giving to FBI investigators and terrorist investigations powers that 

already existed throughout the Government by all kinds of investigators, but not available in terrorist cases. If we had to have enhanced law enforcement powers for any one single case, it would 

be terrorism cases, I think all of us would agree. 

But we haven’t gone beyond, as I can see, any principle of law 

in terrorism cases. We just have made sure that those judicially approved, historically approved, Supreme Court-approved procedures 

are available in terrorism cases. Is that basically the case? 

Mr. COMEY. Yes, Senator. 

Senator SESSIONS. Now, on delayed notice, you talked about in 

this Candy Box example how there were Ecstasy tablets of large 

numbers and you didn’t want them to go on and be put on the 

streets, but you weren’t prepared to break the investigation wide 

open. Everybody that was involved would scatter and you would 

never find them. I have been a prosecutor. I know exactly what 

that means. 

In fact, one of the key decisions, is it not, in any major investigation is when to make the arrest, when to have the take-down? And 

don’t you always want to do it at a time when the leaders are most 

available for arrest? 

Mr. COMEY. Absolutely, Senator. 

Senator SESSIONS. Now, let me just say this. Based on your experience, could there not be absolutely critical points in an investigation in which 3,000 or more American lives are at stake and you 

would need to be able to delay notification in a terrorist case, a delayed notification procedure that is available right now in drug 

cases? 

Mr. COMEY. You are absolutely right, Senator. It is a tool that 

is not used much, but when it is used, it very much matters. And 

I described the changes proposed by the SAFE Act I think as modest change, and that is fair, except that it would have a potentially 

devastating effect in some very, very important cases. But as I said 

to Senator Craig, not a huge number of cases, but in a number of 

cases it would have a very significant effect if it had not that catchall for serious jeopardy to an investigation, for example. 

Senator SESSIONS. Well, I think you have been perfectly honest 

with this panel, and if you had a 7-day limit of time or 14 days 

or whatever, this could be a burden and a complexity in the investigation. But maybe you could live with that. 

43

But let me ask you this. The other parts of the SAFE Act to me 

appear to be even more critical, far more dangerous. It eliminates 

the basis for a delayed notification search warrant based on the 

question of whether or not it would jeopardize an ongoing investigation. So that can be a very critical matter, could it not, for an 

investigator that you would like to do this—first of all, you have 

to have probable cause to do the search warrant. Is that correct? 

Mr. COMEY. Yes. 

Senator SESSIONS. You cannot do the search until you have probable cause and a judge certifies that. 

Mr. COMEY. That is correct. 

Senator SESSIONS. Now, if you do a search, you can go in and 

seize all the records in a person’s house under normal circumstances. 

Mr. COMEY. That are within the scope of the warrant. 

Senator SESSIONS. Within the scope of the warrant that is relevant to the crime involved. And so to me, it is no big deal, no huge 

alteration of that procedure to say you are able to enter the residence, to examine the residence, to see if there are weapons of 

mass destruction, bomb parts, or other things, and not seize them 

at that moment because it could, in fact, upset the investigation 

and allow the terrorist to escape. Is that the issue we are dealing 

with? 

Mr. COMEY. It is one of the issues. 

Senator SESSIONS. One of the issues we are dealing with. 

Mr. COMEY. That is why that authority is so important. 

Senator SESSIONS. And it also changes the standard to requiring 

that it will endanger life or physical safety of an individual, will 

result in flight, will result in destruction of or tampering with evidence; whereas, the standard under the PATRIOT Act is it may result in that. Could that be very critical in whether or not a warrant 

is obtained? 

Mr. COMEY. Yes, and because it might be interpreted by a judge 

to require a quantum of proof well beyond even probable cause to 

believe these things, which, as you know from your experience, 

Senator, early in an investigation it is often very difficult to demonstrate it. 

Senator SESSIONS. And, in fact, an approved search warrant can 

find evidence that would strengthen your ability to gain other information. 

Let me ask this. On administrative subpoenas, is it not true that 

probably 50 times this day—I may not be exaggerating—a DEA 

agent has issued an administrative subpoena to get bank records, 

motel records, and telephone records on suspected drug dealers? 

Mr. COMEY. Absolutely. 

Senator SESSIONS. Without approval of a court of grand jury? 

Mr. COMEY. That is correct. 

Senator SESSIONS. And that IRS agents can seize bank records 

and that health care investigators can seize health care records by 

administrative subpoena? 

Mr. COMEY. That is correct. 

Senator SESSIONS. And these have been appealed to the Supreme 

Court for many, many years and have been sustained, and it is a 

part of accepted law in America today. 

44

Mr. COMEY. Yes, Senator. 

Senator SESSIONS. But an FBI agent cannot issue an administrative subpoena to get a motel record in the middle of the night that 

might involve the death of thousands of American citizens. 

Mr. COMEY. That is correct, Senator. 

Senator SESSIONS. Well, I do not think it is any threat to liberty 

that they be given that power in a case involving terrorism. If 

there is any case that power ought to be available, it should be in 

terrorism cases. And I believe next is Senator Kennedy. 

Senator KENNEDY. Thank you very much, Mr. Chairman. I join 

with those that pay tribute to our witness. It is a unique position 

that you are in in terms of all the accolades you have received, but 

I think you have done a very professional job and we welcome your 

responses to these questions. We have respect for you. 

We have limited time, and there are a number of areas I would 

like to cover if I could. 

One is on hate crimes. We have passed now in July on the defense authorization by a 2:1 majority hate crimes legislation, 18 

Republicans. It has been out here since 1997, legislation that was 

introduced, myself and Senator Specter, the support of 175 law enforcement officials. The administration has yet to have a position, 

and it is in the conference at this particular time. A majority, Republicans and Democrats, of the House support it. More than twothirds of the Members of the Senate supported it. 

I did not indicate prior to this meeting that I would ask you this 

question, but can you give us what your position is, what the administration’s position is on the hate crimes legislation that is now 

in the conference on the defense authorization? 

Mr. COMEY. Senator, I do not know the answer to that, but I will 

look into it and follow up on it. 

Senator KENNEDY. All right. Second, on the voting rights, there 

were two recent reports, in the New Yorker magazine, also the 

Washington Post, that the current Justice Department is undermining, perverting the function of the voting rights for partisan political purposes. There is the 1995 regulations, Federal prosecution 

of election offenses, and this sets out the guidelines for the Justice 

Department. And on page 60 and 61, it says, ‘‘Non-interference 

with the elections. 

Except for matters involving racial discrimination, the Justice 

Department does not have statutory authority to prevent’’—underlined—‘‘suspected election crime.’’ It continues: ‘‘Federal prosecutors shall be extremely careful to not conduct overt investigations 

during a pre-election period or while the election is underway.’’ 

Can you give us the assurances that the Justice Department, and 

particularly the Civil Rights Division, will not in any way be involved in any political pressure on individuals in terms of their voting rights, but will meet its historical and traditional and rightful 

position in terms of protecting the voting rights of citizens, access 

to voting rights for our citizens? 

Mr. COMEY. Yes, Senator, and I believe that is what we are trying to do, which is fill two roles that the Department, as you said, 

has filled historically; that is, to protect people’s access to the polls 

and, where we come across it, to investigate and prosecute fraud. 

And we are as prosecutors very eager not to have any effect on an 

45

election or put ourselves in a position where even a credible allegation can be made that we were doing something for political reasons. 

So, yes, I pledge that to you. 

Senator KENNEDY. These articles, both in the New Yorker Magazine and the Washington Post, at least suggest—and I would like 

you to have a chance to read through them and draw your own fair 

conclusion—that in many instances the integrity issues have meant 

harassment to many in these—has been sort of a code word to use 

it. I am not suggesting that you would support such a matter, but 

at least they mention the various steps that have been taken. At 

least they draw some conclusions. 

I believe that these guidelines are still in effect, January 1995, 

in terms of guidance on the Voting Rights Act. Would you be just 

good enough to read through both those articles—and I will give 

you the references—both in the New Yorker and the Washington 

Post and just having read those, still give us the reassurance? I 

would appreciate it if you would do that. 

Mr. COMEY. Certainly, Senator. I have actually, I think, in my 

briefcase copies of them. I have not had a chance to read them yet. 

Senator KENNEDY. I understand. You were instrumental in getting the special prosecutor with real independence investigating 

the White House, Valerie Plame, CIA role, and we commend you 

for that, and I know that you have disclaimed any supervisory role 

in that case. But can you tell us whether there has been any interim report that Mr. Fitzgerald has made that permits you to tell 

us when we can expect the action in that case? 

Mr. COMEY. I do not think it would be appropriate for me to comment, even if I knew. But as you said, Senator, Mr. Fitzgerald has 

all the powers of the Attorney General, and so he is truly independent of—certainly of me, and I guess I ought to leave it there. 

Senator KENNEDY. All right. But can you give us assurance that 

the timing of the investigation report will not be influenced by any 

political campaigns? 

Mr. COMEY. What I can assure you is that Mr. Fitzgerald is the 

finest prosecutor I have ever met and will conduct himself in accordance with the highest standards of the Department of Justice. 

Senator KENNEDY. Well, he has been highly regarded and respected, and so we would expect him to follow that line. 

On assault weapons, the ban now has lapsed. The distinguished 

Attorney General of New York, Bob Morgenthau, stated in a letter 

to the New York Times, ‘‘Assault weapons kill dozens in the blink 

of an eye. Terrorists know this, know our laws, recovered training 

manuals, urged them to obtain assault weapons in the United 

States, where we really make their mission easier 3 years after 9/

11.’’ 

Is the Justice Department taking any steps to respond now to 

the availability and accessibility of these assault weapons to potential terrorists in terms of protecting the American homeland? 

Mr. COMEY. With respect to the particular weapons, Senator, I 

do not know of anything with respect particularly to those. But as 

you know we are very, very aggressive on investigating and prosecuting guns in the hands of bad guys, obviously terrorists, but also 

46

drug dealers, drug addicts. We have a zero tolerance policy when 

it comes to that. 

Senator KENNEDY. Has the administration given up on trying to 

get the assault weapons ban renewed? 

Mr. COMEY. I am not in a position to know, Senator. 

Senator KENNEDY. My time is up, Mr. Chairman. 

Senator SESSIONS. Thank you, Senator Kennedy. 

You know, Senator Leahy—I wish he had not made the comments he did about the Vice President. I do not think it was the 

right forum for that. But this is the quote from the Vice President: 

‘‘If we make the wrong choice, then the danger is we will get hit 

again, that we will be hit in a way that will be devastating from 

the standpoint of the United States, and we will fall back into the 

pre-9/11 mind-set, if you will, that these terrorist attacks are just 

criminal acts and we are not really at war.’’ And then he issued 

a clarification. Some said it was a retraction. But whatever, he 

issued a clarification to make sure that he did not mean to offend 

anyone by those comments, and we will make this a part of the 

record, and people can make their own judgment about it. 

Senator Feingold, I think you wanted to follow up. 

Senator FEINGOLD. Thank you, Mr. Chairman, I have many other 

questions, but I am just going to make a couple comments and ask 

you one more question, Mr. Comey. And I do thank you— 

Senator SESSIONS. I just recognize you as our Ranking Member 

to ask these extra questions, because we do need to go the next 

panel. 

Senator FEINGOLD. I understand, and I thank the Chairman. 

I do appreciate this, and I think even though we have some 

strong disagreements, I see at least the germ of some possibility 

that some of the changes suggested in the SAFE Act could perhaps 

be something we could come together on. And I hope that happens. 

But I am also very concerned about misstatements and 

mischaracterizations that have been made in defense of the USA 

PATRIOT Act. Some people accept these factual lapses as part of 

our political process, but I cannot. 

Earlier this month, in my own State, the U.S. Attorney for the 

Western District of Wisconsin, J.B. Van Hollen, reportedly told the 

Hudson, Wisconsin, Rotary Club that, ‘‘In fact, September 11th 

would not have happened if the delayed search notice, a part of the 

PATRIOT Act, had existed at that time.’’ I think that is an outrageous claim, particularly when it is made by one of the chief law 

enforcement officers in Wisconsin. 

No one, not even other administration officials, the 9/11 Commission, has claimed that the September 11th attacks would not have 

occurred if the delayed notice provision, also known as ‘‘sneak-andpeek,’’ in the PATRIOT Act had been in place. More importantly, 

the delayed notice provision was a well-established legal tool available to law enforcement prior to 9/11, something we have been discussing this morning. That was one of the major arguments made 

by the administration for including that provision in the PATRIOT 

Act. In addition, the FISA law that applied to intelligence investigations also allowed for secret searches prior to 9/11. 

Mr. Comey, do you agree that delayed notice searches were allowed under the law before 9/11? 

47

Mr. COMEY. Yes, Senator. As I said earlier, it was a judicially 

created doctrine that existed across the country. 

Senator FEINGOLD. Sir, what action will you take to address Mr. 

Van Hollen’s misstatement? And what steps will you take to accurately inform the people of Wisconsin of what the law and the facts 

were before 9/11? 

Mr. COMEY. Senator, I am not familiar, obviously, with what J.B. 

might have said at that event, whether he is quoted accurately, so 

I am really not in a position to say. I know him. I know he is a 

very fine prosecutor and U.S. Attorney. Beyond that, I do not feel 

I am equipped to comment. 

Senator FEINGOLD. The words that I quoted from him, though, 

you would not agree that the delayed notification provisions would 

have prevented 9/11, would you? 

Mr. COMEY. I do not know what that means, Senator. I am not 

aware of an issue with respect to delayed notification and 9/11. 

Senator FEINGOLD. You have no reason to believe that would be 

true. 

Mr. COMEY. I have no reason to believe there is a connection 

there. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Senator SESSIONS. Thank you. 

Senator CRAIG. Mr. Chairman? 

Senator SESSIONS. Senator Craig? 

Senator CRAIG. No questions. Very briefly I want to thank the 

Deputy Attorney General again for his presence here and for a 

level of objectivity that is refreshing on this issue, because I am a 

strong supporter of the Attorney General and the work the Justice 

Department is doing that, in my mind, is not in question. 

Let me say one final thing, Mr. Chairman. This report, the 9/11 

Commission report, is not the Bible. It may be as thick as the 

Bible, but it has some very valuable statements in it, and I think 

some valuable findings that all of us are poring over in an attempt 

to make this country a safer country. Here is one of its recommendations: ‘‘The burden of proof for retaining a particular governmental power should be on the executive to explain (a) that the 

power actually materially enhances security, and (b) that there is 

an adequate supervision of the executive’s use of the powers to ensure protection of civil liberties. If the power is granted, there must 

be adequate guidelines and oversight to properly confirm its use.’’ 

That is something that none of us disagree with, whether it be 

oversight or guidelines, and sometimes those guidelines are necessary within the law. I would like to characterize the SAFE Act 

as some of that. You and I may disagree on that. 

The current Chairman may disagree. But one of our jobs without 

question is to make sure that you do it right, and the other job is 

to make sure the law is instructive, controlling, and shaping. 

And that is the attempt of what we are doing here, and I thank 

you very much for being with us. 

Mr. COMEY. Thank you, Senator. 

Senator SESSIONS. Thank you very much. We will have the next 

panel, and, again, thank you for extraordinary testimony. You are 

a professional and you know the law. You understand how it 

48

works, and I think you have helped us all understand it far better 

than we did before. Thank you. 

I do have a commitment and will have to leave in a few minutes, 

and I expect Senator Hatch will be back in a few minutes. But I 

think we would want to go on and get started, and I would like to 

welcome former Congressman Bob Barr to our hearing today. 

Prior to serving in the House, he was United States Attorney for 

the Northern District of Georgia, in Atlanta, and we worked together when I was the United States Attorney in Alabama at that 

time, and I got to know you, Bob, at that time and respect you very 

much. You are now an attorney in private practice, and you occupy 

the 21st Century Liberties Chair for Privacy and Freedom at the 

American Conservative Union and consult on privacy matters for 

the American Civil Liberties Union. 

I also want to welcome former Associate Deputy Attorney General Daniel Collins to the Committee today. While in the Office of 

the Deputy Attorney General he served as the department’s chief 

privacy officer and coordinated the Department’s policies on privacy 

issues. Mr. Collins is now a partner with Munger, Tolles and Olson 

in Los Angeles, California. 

So we would like to thank you both for appearing here today, for 

caring about the issues that are important to America. We do have 

threats to our country. We have criminals out there and we have 

terrorists out there. Some of them go beyond being criminals. 

They are unlawful combatants, for whatever that means. 

Bob Barr, thank you, and we would be glad to hear your statement at this time. 

STATEMENT OF HON. BOB BARR, FORMER REPRESENTATIVE 

IN CONGRESS FROM THE STATE OF GEORGIA 

Mr. BARR. Thank you very much, Mr. Chairman. I would like to 

thank you and certainly Chairman Hatch, who is now joining us, 

for the courtesies always extended to me whenever I have the 

honor of appearing before this body as a witness. And I appreciate 

very much the opportunity to appear today to talk about the PATRIOT Act, the SAFE Act, and related issues, and to hear the outstanding testimony that I have been listening to in the office next 

door earlier today from the witnesses and from the Senators on 

this panel. 

I would like, Mr. Chairman if I could, to request that my entire 

testimony as submitted to the Committee be included in the record. 

Chairman HATCH. Without objection, and I am certainly happy 

to see you again. Sorry I could not be here right at the beginning. 

Mr. BARR. Well, I appreciate the Chairman rushing back just to 

listen to me. I appreciate that honor. 

Chairman HATCH. Well, I did, as a matter of fact. 

Mr. BARR. But I know that the Chairman, as the other members 

of the Committee, having served in the other body myself, are extremely busy, and I certainly appreciate the opportunity to be here 

to submit my statement for the record, which I will not read in its 

entirety, but just refer to a few things, and then answer either 

today or any subsequent questions posed to me by yourself, Mr. 

Chairman, or any other members of the Committee. 

49

I think it is important to emphasize, for the American people primarily, a fact certainly known to this Committee, but which I think 

bears repeating, and that is that the American people are not left 

with any impression that prior to enactment of the PATRIOT Act, 

this Government had no tools with which to fight terrorism or to 

prosecute crimes involving terrorism. The full range of powers, 

both procedural as well as substantive, with which acts of terrorism could be investigated and prosecuted were available to the 

Government prior to the enactment of the PATRIOT Act in 2001. 

Those tools all remain available today. The PATRIOT Act, of 

course, supplemented that very broad range of powers that the 

Government already had. And I and many others, including Senators Craig and Durbin, as they have testified to today, do not in 

any way seek to dismantle that very carefully crafted range of substantive and procedural powers that have been and are available 

to the Government to fight terrorism. We are not talking about dismantling the additional powers that were made available to the 

Government under the PATRIOT Act, simply consistent, I think, 

with the views of this Committee and the Senate and the House, 

to take a continuing look at those powers. That is the reason why, 

of course, the Congress in its wisdom included sunset provisions for 

many of these—not all, but many of the powers in the PATRIOT 

Act, and we are simply in support of the SAFE Act, for example, 

doing, I think, precisely what Congress recommended and codified 

that we do, and that is to take a regular and constant and continuing look at these powers. 

When, for example, one looks, Mr. Chairman at sort of the three 

stages of what brings us here today—and that is the pre-PATRIOT 

Act powers the Government has, the powers currently exercised by 

the Government pursuant to the PATRIOT Act, and other provisions of law, and the SAFE Act—I think it is important to keep in 

mind just a few things, and that is that before 9/11, that is, before 

the PATRIOT Act, the Government had roving wiretap power 

which it could exercise in cases involving terrorism, as well as 

other criminal cases. It was a carefully circumscribed power, but it 

was a power that was available in terrorism cases. 

Similarly, Mr. Chairman, regarding sneak-and-peek powers, socalled delayed notification search warrants, I think it is important 

to emphasize that prior to the PATRIOT Act, the Government did 

have limited sneak-and-peek powers, that is, the ability to execute 

a search warrant, to search premises and seize evidence pursuant 

to that warrant. Chairman HATCH. But in both cases, Bob, much 

more limited than the PATRIOT Act. 

Mr. BARR. Yes, sir, absolutely. 

Chairman HATCH. I just want to make that clear. 

Mr. BARR. With regard to the securing of library and other 

records, such as Section 215 of the PATRIOT Act provides, prior to 

9/11 the Government did have, again, more limited powers but certainly had powers in any instance in which it had credible evidence, reasonable suspicion that an individual or group of individuals were committing or were conspiring to commit acts of terrorism or other criminal acts, it could get those records. 

50

And, finally, with regard to so-called national security letters or 

administrative subpoenas, prior to the PATRIOT Act the Government, the FBI, had the power to secure those. 

Currently, as the Chairman correctly has noted, in all of these 

different areas—roving wiretaps, sneak-and-peek or delayed notification search warrants, library and other personal records, and national security letters—the Government continues to have those 

powers, but much broader, in a much broader range of circumstances. And under the SAFE Act, I think it is important also 

to emphasize, as the Chairman certainly knows but to emphasize 

for purposes of the record here, that in none of these areas of Government power—roving wiretaps, sneak-and-peek, access to personal records such as library records, and national security or administrative subpoenas—the SAFE Act would not curtail in any 

significant way, I do not believe, any of these powers. All of them 

would remain available to the Government. The Government would 

simply have to do something that I would think we would all agree 

on if we really stop and think about it, and that is simply to have 

a reasonable linkage between the records on an individual being 

sought and some credible suspicion, reasonable suspicion that that 

individual or those individuals have committed a violent—not a 

violent act but a criminal act, including acts of terrorism. 

My written testimony indicates, provides additional detail of the 

circumstances in which this would be the case, and I would be most 

happy to answer any questions by the Chairman or other members 

today, or anything submitted in writing hereafter. 

[The prepared statement of Mr. Barr appears as a submission for 

the record.] 

Chairman HATCH. Well, thank you. I think we will submit questions in writing. I know that you have another appointment, so I 

am going to accommodate you, and if you would care to, you can 

leave anytime you— 

Mr. BARR. I appreciate that, Mr. Chairman. I am okay time-wise 

right now. I do have a flight back down to Atlanta to catch. I appreciate the Chairman keeping that in mind. 

Chairman HATCH. All right. Thank you. 

Mr. Collins, we will take your testimony. 

STATEMENT OF DANIEL P. COLLINS, MUNGER, TOLLES AND 

OLSON, LLP, LOS ANGELES, CALIFORNIA 

Mr. COLLINS. Thank you, Mr. Chairman I appreciate the opportunity to testify here today. There are few subjects more important 

than the prevention of terrorist attacks, and the question whether 

or not we have the appropriate tools to prevent terrorist attacks in 

a way that respects and enhances liberty and security is a very important topic. 

In my written testimony, I have identified a number of principles 

that I think should guide that inquiry. I would like to just point 

to three of them and then discuss some of the specific provisions 

of the SAFE Act in light of those principles. 

First, of course, is unwavering fidelity to the Constitution, and 

I have not heard—I have listened to all of the comments today. I 

have not heard anyone contend that any of the provisions of the 

PATRIOT Act that would be changed by the SAFE Act are in any 

51

way constitutionally infirm. There was some discussion of whether 

or not the elimination of notice altogether in the search warrant 

context might violate the Fourth Amendment. But that is not 

something that the PATRIOT Act does, and so that really is not 

the question before this Committee. 

Second—and I think this is a very important principle—if a tool 

exists in existing law to fight other types of crime, then the burden, 

I believe, is on those who deny it to fighting terrorism. If it is good 

enough for fighting the Mob, if it is good enough for fighting health 

care fraud, it is good enough to fight terrorism. If the balance is 

thought to be sufficient in existing law in those contexts, it is sufficient with respect to terrorism. 

And third is the principle of technological neutrality. There 

should not be in the law disparities between the legal regimes that 

govern one type of communications in one medium and those that 

govern in another, because that just creates incentives to shift from 

one medium to the other. 

Now I would like to talk about some of the specific provisions. 

Section 215 of the PATRIOT Act provides much needed authority 

on the FISA side, the Foreign Intelligence Surveillance Act side, to 

obtain business records, and it is comparable to an authority that 

exists for a very long time on the ordinary criminal side in terms 

of the grand jury subpoena authority. It is different in certain respects because a court order is required. The court is not merely 

a rubber stamp because the statute specifically states that the 

court has the authority to modify the application and the order before it is issued. It has a narrow scope, cannot be used to investigate domestic terrorism, and explicitly provides for protection of 

First Amendment rights. It has nothing to do on its face with library records as a particular focus of interest. 

Section 4 of the SAFE Act would amend the FISA so that the authority conferred by Section 215 could only be exercised if there are 

‘‘specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of 

a foreign power.’’ This is much too narrow a standard. It simply 

cannot be said in advance that the only important business records 

that might be needed in an intelligence investigation are records 

pertaining to the FISA target. That is not at all how business 

records subpoenas work in the grand jury context. The standard, 

when it is articulated in other contexts, whether it be relevance or 

in some statutes there is a heightened standard for particular 

types of records, is always in terms of the importance to the investigation. Sometimes records about other persons, third parties or 

related persons other than the target themselves, may be needed 

for the investigation. To limit on the face of the statute to only 

records that pertain to the target seems much too strict. Even if 

one were to believe that some additional reticulation of the standards here were appropriate, that standard is clearly much too 

strict. 

Second, 213 of the PATRIOT Act codifies longstanding authority 

for delayed notification of search warrants and codifies that with 

a number of important safeguards: The court must independently 

find reasonable cause to justify the delay, and the court must set 

52

forth in the warrant the reasonable period for such delayed notice, 

and the deadline can be extended only by a showing of good cause. 

The SAFE Act would change this by requiring—first, eliminating 

some of the grounds that are specified in the PATRIOT Act for obtaining a delayed notification authorization from the court and 

would limit it to 7 days. 

Now, some of the comments I heard during the hearing this 

morning reflected, I think, a misunderstanding of the PATRIOT 

Act. There was an assumption that the court can grant a delayed 

notification without specifying any period in the warrant. It will 

just specify a reasonable period. I do not think that that is what 

the statute actually says. 

Chairman HATCH. That is right. That is right. 

Mr. COLLINS. The court will determine a period, a period certain 

that it believes is reasonable in the circumstances of the case and 

put that in the warrant. Otherwise, the existing provision on extension would make no sense if the court were leaving it indeterminate. 

Chairman HATCH. Where the SAFE Act would set a 7-day period, 

and then you would have to keep going back to get additional time. 

Mr. Collins. Every 7 days. 

Chairman HATCH. And you would have to find a U.S. Attorney, 

you would have to go to court, you would have to interrupt your 

investigation. That is one of the things I find to be a flaw in the 

SAFE Act, and I think almost everybody in law enforcement thinks 

that is a flaw as well. But be that as it may, you are pointing out— 

Mr. COLLINS. I believe it is too inflexible. I would expect based 

on the existing case law that predates the PATRIOT Act that 7 

days will likely be the presumptive standard. 

Chairman HATCH. And probably in most cases they will get it 

done within 7 days, but that is not always the case. 

Mr. COLLINS. That is right, and it leaves it up to the discretion 

of the Federal judge to determine what under those circumstances 

is the reasonable period. 

Chairman HATCH. Let’s say the 7 days expire, and they have got 

to find a U.S. Attorney, they have got to find a judge, they have 

got to do all the things that require going back in to get additional 

time, which they may or may not get. 

That may be time enough for the terrorists to escape or to commit terrorist attacks. 

Mr. COLLINS. That is correct. There is a need for flexibility here. 

I think the courts will be strict. 

Chairman HATCH. One of the things—I do not mean to keep interrupting you. I guess I do, but one of the things that bothers me 

is that some who have been proponents of the SAFE Act are consistently saying, well, civil liberties might be violated. Well, I do 

not know of many criminal laws where civil liberties, you know, 

could not be violated if you have rogue police officers or you have 

rogue prosecutors or you have people who are not willing to abide 

by the law. You could say that about almost every criminal provision. 

Mr. COLLINS. I believe, Mr. Chairman you are correct that it reflects a sort of zero-sum thinking. Every tool that you give to the 

Government can potentially be abused, and so every— 

53

Chairman HATCH. They almost come across like, well, with this 

Act this is going to be misused because these powers are given to 

the fight against terrorism, even though basically most of the powers have been in existence for domestic anti-crime purposes for a 

long time. 

Mr. COLLINS. And there are mechanisms in existing law in terms 

of judicial review and oversight of the Congress. 

Chairman HATCH. Sure. 

Mr. COLLINS. I would like to make, if I can—I see my time has 

expired—one further comment. 

Chairman HATCH. I have interrupt you. Go ahead. 

Mr. COLLINS. It is about Section 2 of the SAFE Act on roving 

wiretaps, because I think the theory of that provision is to incorporate the specification requirements that are existing in Title III 

into FISA. But I do not think that the translation works, and the 

reason why is a little bit technical, and I have alluded to it in my 

testimony. But I wanted to call attention specifically to it. 

There is a requirement in the FISA—it is Section 105(a)(3)(B)—

the court must find before issuing an order that there is probable 

cause that ‘‘each of the facilities or places at which the electronic 

surveillance is directed is being used, or is about to be used’’ by the 

target. So even though you cannot specify in advance every particular one, because that is only required under FISA ‘‘if known,’’ 

there still is this general requirement that there be some sufficient 

understanding on the part of the court as to where the interceptions will be made so that the court can find probable cause that 

the target will be using those and give the authorization. 

There is no comparable language in Title III to that. Indeed, the 

comparable provision of Title III, which is in Section 2518(3)(D), is 

waived in the case of a roving wiretap. There is a specific clause 

that waives it for roving wiretaps. It is not waived in FISA. It is 

instead this general requirement, and I think that that difference 

is an important one and justifies allowing a John Doe warrant, 

with a detailed description—and perhaps there can be discussion 

about whether or not there might be some additional specification 

of how good the description must be. But you could have a John 

Doe warrant with a roving wiretap situation where you have this 

probable cause requirement. I think that that is a different balance 

from Title III, but I think it is an adequate balance. 

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

for the record.] 

Chairman HATCH. Well, I appreciate both of you taking time to 

be with us. I am going to have to recess now, but we will keep the 

record open for written questions and any additional statements 

you would care to make. 

Mr. BARR. Could I mention, begging the Chairman’s indulgence, 

just one or two very, very quick points for the record? And I will 

be glad to supplement those in writing. 

In taking up Mr. Collins’ challenge, I do wish to go on record that 

I do believe that some of the provisions in the PATRIOT Act are 

constitutionally infirm. I think where you have, for example, as in 

Section 215, the Government now having the ability to secure evidence against individuals who would otherwise be covered by the 

Fourth Amendment reasonableness provision without showing any 

54

link whatsoever between that person and suspected criminal activity, I do believe that that is violative of the letter if not the spirit 

of the Fourth Amendment. 

With regard to roving wiretaps, I do believe, Mr. Chairman, 

under the present situation regarding use of the PATRIOT Act for 

roving wiretaps that it does sweep broadly, so that a person who 

might simply be in the facility—I think Senator Kyl in his earlier 

questioning referred to whether or not a person in an apartment 

complex could have their phone tapped if the Government simply 

believed that a target might be in that complex. I believe that 

clearly the roving wiretap provisions in the PATRIOT Act would 

allow for that scenario, and very clearly, a person against whom 

the Government has no suspicion whatsoever under the Fourth 

Amendment standard, or any standard, simply happens to have a 

phone that might be in proximity to a target known only by general 

description to the Government or a facility only known by general 

description to the Government could have their conversations listened in on. And I believe that that, too, would be violative of the 

Fourth Amendment. 

I believe the provision that has been talked a great deal about 

today, Mr. Chairman, regarding a court’s ability to modify a Section 215 application, while certainly provides the court to have 

some input into how the order is going to be executed, there still 

under Section 215 is absolutely no provision in the law for the 

judge to look behind the application. The judge, so long as the Government makes the general assertion to the library or to the pawnshop, the gun shop, or the medical office, whatever it is, that it is 

part of an ongoing terrorism investigation, no link to the particular 

person on whom the evidence is being sought, the judge cannot 

look behind that. And that is the problem with the so-called rubber 

stamping, that the judge cannot refuse to issue the order. The 

judge can modify it in some degree. 

And, finally, Mr. Chairman, just to reiterate, all of these provisions under FISA, I think it is important to recognize, are in addition to the whole range of powers that are and would remain under 

the SAFE Act fully available to the Government to go after terrorists, that were available to the Government to go after terrorists 

pre-PATRIOT Act, and simply because the Government might not 

have executed or used those powers consistently or made some bad 

policy decisions, as in the case of not seeking the access to 

Moussaoui’s computer, does not mean, I do not think, that we 

should not continually take a look at these powers and make sure 

that they fit properly within the bounds of the Constitution, as I 

believe that the SAFE Act would help ensure. 

Chairman HATCH. Thank you, Mr. Barr. 

Mr. Collins, you will have the last word. 

Mr. COLLINS. Okay. The Supreme Court has held that there is 

no Fourth Amendment right to privacy of a person in business 

records held by a third party. That is why business records in ordinary criminal investigations are obtained by grand jury subpoenas 

and not by warrants. Given that 215 is aimed at getting business 

records, the argument that it is constitutionally infirm is, I think, 

insubstantial. And the concern that roving wiretaps could be placed 

on a very vaguely defined set of instruments without any control 

55

or supervision of the FISA court as to how the items are placed or 

the surveillance is actually conducted is inconsistent with the language that I read from Section 105 of FISA, which, as I said, differs from Title III in a material respect and does, I think, limit the 

ability to place items and conduct surveillance other than in conformity with what it says. 

Chairman HATCH. Okay. 

Thank you. 

Let me just close with these remarks. I am simply not prepared 

to heighten the requirements for obtaining documents in terrorism 

cases beyond that which applies in ordinary criminal cases. If 

criminal investigators can get them in ordinary criminal investigations, we should not add to the requirements in terrorism investigations. I believe that is one of your major points. 

I am also not prepared to prohibit Federal judges from having 

the authority to decide that providing immediate notification of a 

search would result in the intimidation of witnesses or seriously 

jeopardize an investigation. I do not think we should strip that authority from Article III judges. 

I also do not believe that we should hinder our terrorism investigators with extra constitutional obligations beyond those regulations applicable in ordinary criminal investigations. 

In the crucial area of terrorism investigations, I do not think we 

should raise the hurdles once the Government has probable cause 

to believe a suspect is an agent of a foreign power. 

Now, there are so many other things I would like to say, and I 

will put my further remarks in the record. 

Let me just also put in the record a letter from ONDCP, the Office of National Drug Control Policy, and the DEA, the Drug Enforcement Administration, supporting Section 213 on delayed notifications—in other words, supporting the PATRIOT Act; a letter 

from the FOP, the Fraternal Order of Police, supporting Section 

213; a letter from the Department of Justice regarding al Qaeda 

using Internet services at public libraries; a letter from DOJ, the 

Department of Justice, supporting Section 215; a letter from DOJ 

supporting Section 213 with a delayed notice search warrant report. 

I will put in a resolution from the National Associations of Police 

Organizations representing 236,000 rank-and-file officers and 2,000 

police unions throughout the United States; a resolution from the 

Board of County Commissioners of Collier County, Florida, supporting the PATRIOT Act and its renewal; a resolution of the 

Pennsylvania Chiefs of Police Association supporting the PATRIOT 

Act; a resolution of the National Troopers Coalition supporting the 

PATRIOT Act and its renewal; and a resolution of the National 

Sheriffs Association supporting the PATRIOT Act. 

We have others, but I think I will let it go at that for today. 

This has been an interesting hearing to me, and I just want to 

personally express my gratitude to both of you for being here, for 

Deputy Attorney General Comey for being here, and, of course, the 

sincerity on the part of those who believe that there ought to be 

what I consider to be major changes in the PATRIOT Act. I understand the sincerity, but I think the overwhelming weight of evidence is that the PATRIOT Act is working very well. Now, that 

56

does not mean we cannot continue to look for ways of strengthening it or ways of carefully changing some terms. We are certainly 

in the process of trying to do that. And to that degree, both of you 

have been very helpful. I just want you to both know that and I 

appreciate both of you being here. 

We will keep the record open for one week for people to submit 

any questions in writing and, of course, any resubmissions of statements that you would care to make. 

So, with that, we will recess until further notice. 

[Whereupon, at 12:30 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.]

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