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93–622 PDF 2005

S. HRG. 108–787

PROTECTING OUR NATIONAL SECURITY FROM

TERRORIST ATTACKS: A REVIEW OF CRIMINAL

TERRORISM INVESTIGATIONS AND PROSECUTIONS

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

OCTOBER 21, 2003

Serial No. J–108–46

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

Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of Delaware ............. 7

Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia ..................... 7

Cornyn, Hon. John, a U.S. Senator from the State of Texas ............................... 9

prepared statement and attachment .............................................................. 117

Craig, Hon. Larry E., a U.S. Senator from the State of Idaho ............................ 14

DeWine, Hon. Mike, a U.S. Senator from the State of Ohio ................................ 5

prepared statement .......................................................................................... 121

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois .................... 16

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 13

prepared statement .......................................................................................... 122

Feinstein, Hon. Dianne, a U.S. Senator from the State of California ................. 11

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

prepared statement .......................................................................................... 132

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts ... 5

prepared statement .......................................................................................... 134

Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin ....................... 10

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 3

prepared statement .......................................................................................... 136

Schumer, Hon. Charles E., a U.S. Senator from the State of New York ............ 15

prepared statement and attachments ............................................................. 150

WITNESSES 

Fitzgerald, Patrick, U.S. Attorney, Northern District of Illinois, Chicago, Illinois ........................................................................................................................ 23

McNulty, Paul, U.S. Attorney, Eastern District of Virginia, Alexandria, Virginia ....................................................................................................................... 26

Wray, Christopher, Chief, Criminal Division, U.S. Department of Justice, 

Washington, D.C. ................................................................................................. 20

QUESTIONS AND ANSWERS 

Responses of Christopher Wray to questions submitted by Senators Biden, 

Kennedy, Feingold, and Schumer ....................................................................... 62

Responses of Christopher Wray, Patrick Fitzgerald, Paul McNulty to questions submitted by Senator Leahy ...................................................................... 83

SUBMISSIONS FOR THE RECORD 

Fitzgerald, Patrick, U.S. Attorney, Northern District of Illinois, Chicago, Illinois, prepared statement ..................................................................................... 124

McNulty, Paul, U.S. Attorney, Eastern District of Virginia, Alexandria, Virginia, prepared statement ................................................................................... 140

The White House, Office of the Press Secretary, August 27, 2004, news 

release ................................................................................................................... 155

Wray, Christopher, Chief, Criminal Division, U.S. Department of Justice, 

Washington, D.C., prepared statement .............................................................. 159

(1)

PROTECTING OUR NATIONAL SECURITY 

FROM TERRORIST ATTACKS: A REVIEW OF 

CRIMINAL TERRORISM INVESTIGATIONS 

AND PROSECUTIONS 

TUESDAY, OCTOBER 21, 2003 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:05 a.m., in Room 

SD–226, Dirksen Senate Office Building, Hon. Orrin Hatch, Chairman of the Committee, presiding. 

Present: Senators Hatch, Kyl, DeWine, Craig, Chambliss, 

Cornyn, Leahy, Kennedy, Biden, Kohl, 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. I want to welcome everyone to 

the first in a series of Judiciary Committee hearings that Senator 

Leahy and I and others on this Committee are organizing to examine the adequacy of the Federal laws designed to protect the American public against acts of terrorism on U.S. soil. 

The first responsibility of government is to protect its citizens. 

The Judiciary Committee has a special responsibility to see that 

our Nation’s laws and law enforcement network is up to the challenging task of thwarting terrorist attacks. I want to thank my colleague, Senator Leahy, for his cooperation and support in planning 

these important hearings. We are committed to working together to 

ensure that the Committee examines a number of important issues 

relating to our country’s war on terrorism. 

As we announced several weeks ago, the Committee’s inquiry 

will focus on the adequacy of Federal laws to help prevent and respond to acts of terrorism against the United States; whether additional tools, the reporting obligations, and oversight may be needed 

and the implications to security, privacy and civil liberties of current laws and any new proposals. We have tentatively scheduled 

our next hearing for November 5. That hearing will focus on how 

civil liberties have been affected by counterterrorism activities, and 

while we must act decisively to identify, stop and punish potential 

terrorists, we must be vigilant to respect traditional American civil 

rights and liberties. 

Over the recess, Senator Leahy and I may conduct field hearings 

to examine issues of local and national concern relating to the war 

2

on terrorism. When we return next year, we expect to schedule additional hearings. Senator Leahy and I welcome any suggestions 

from other members on topics that should be addressed and information that the Committee may need to conduct its inquiry. 

Let me also state that as part of this oversight inquiry, Senator 

Leahy and I plan to invite relevant witnesses to appear before the 

Committee to address important issues, including Attorney General 

Ashcroft, FBI Director Mueller, Department of Homeland Security 

Secretary Ridge and other appropriate officials. The administration 

has told me that it welcomes these hearings and will cooperate 

fully with the Committee’s inquiry. 

At the outset, I want to emphasize that I am committed to conducting a rigorous examination of these important issues. These 

hearings, in my view, can best serve the public by fairly and objectively assessing the key law enforcement issues relating to curtailing acts of domestic terrorism. 

We have all read or heard about claims being made by various 

interest groups concerning how well or how poorly the Federal Government has conducted its domestic counterterrorism program. 

This Committee’s inquiry will attempt to cut through the rhetoric, 

confusion and distortion to get to the facts necessary to find out if 

we are protecting our citizens’ lives and their liberties. 

I am sure that everyone on this Committee shares the common 

goal to protect our country from additional terrorist attacks. We 

are all committed to this goal and must do so with regard for fundamental freedoms and the security of our people. 

Our Committee has a historical tradition of joining together to 

examine, debate and resolve important national issues. We are 

once again faced with an important task which will have a profound impact on our country’s security and cherished freedoms. 

Two years ago, our country faced an unprecedented challenge. We 

suffered a devastating attack on our shores which resulted in the 

murder of over 3,000 of our fellow Americans. The President, Congress and our Nation rose to the challenge and worked together to 

ensure that we can prevail in the war against terrorism. Here in 

Congress, we have passed the PATRIOT Act and other laws in 

order to provide the tools, information and resources necessary to 

defeat the terrorist enemy, and while we have accomplished much, 

there is much more to be done. 

The threat of harm to our country remains. It is evolving and 

committed fanatics who continue to threaten our way of life. Today’s hearing will focus on the existing legal authorities used by 

the Government to investigate and prosecute terrorists for criminal 

offenses, so I look forward to learning how the existing authorities, 

some of which were enacted as part of the PATRIOT Act, facilitate 

criminal investigators’ and prosecutors’ ability to track down, arrest and prosecute terrorists around the world. 

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

At this time, I will turn it over to Senator Leahy for his opening 

statement. After that, I will ask each member of the Committee to 

make a short, two-minute opening statement if they so desire. 

Senator Leahy? 

3

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

SENATOR FROM THE STATE OF VERMONT 

Senator LEAHY. Well, thank you very much, Mr. Chairman, and 

as you said, the two of us do see these hearings as a bipartisan effort to review the effectiveness of our antiterrorism laws, and you 

and I have worked on similar things for well over 20 years, and I 

am delighted to be working with you on this. 

As you have said, of course, the Attorney General is going to 

have to participate in these hearings. I am disappointed that he is 

not here today. I think we have some very fine members of the 

staff of the Department of Justice and appointees of the Department of Justice. I do not want to denigrate their positions, but they 

are not the Attorney General. And it seems most senior administration officials do regularly participate in oversight hearings of the 

various Committees I serve on, but the Attorney General has appeared before this Committee only once this year and then for a 

very short time, which surprises me, because he has recently sent 

me a letter saying how important these kinds of oversight hearings 

are and how it is absolutely important that the Congress do oversight. 

I know he is a very busy man, but he has been able to make a 

lot of highly-publicized appearances all over the country in a public 

relations campaign on the PATRIOT Act, so I would hope that he 

would find some time to drop by here. There are a lot of Senators 

on both sides of the aisle who have questions for him, and, as I did 

when I was chairman, we accommodated his schedule, and I know 

that Chairman Hatch will do the same thing. 

Now, one of the focal points, of course, of the hearings will be the 

PATRIOT Act. We passed that 2 years ago this month after the 9/

11 attacks. Since its passage, the PATRIOT Act has raised concerns with citizens around the country, actually across the political 

spectrum, from the far right to the far left. I think anti-PATRIOT 

resolutions, I have been told, have been passed by more than 190 

communities in 34 of our 50 States. 

Now, the Justice Department, of course, as part of their PR does 

take a very dismissive attitude. According to the Justice Department, they said, quote, ‘‘half of these resolutions, half are either in 

cities in Vermont, very small population, or in college towns in 

California, it is a lot of the usual enclaves.’’ I think when you are 

talking about this showing up in 34 States, I think that is kind of 

an arrogant dismissal by the Department of Justice. I think it is 

beneath the dignity of the Department of Justice, and I cannot 

speak for the other 33 of those 34 States, but we see Vermont to 

be a very progressive State, certainly one of the most international 

of States, certainly the most law-abiding. I think we have the lowest crime rate of any State in the country. 

So we find it arrogant, dismissive, condescending, of the Department of Justice. Now, is an opportunity to engage in public discourse, one of the most essential rights of Americans, and I think 

it is great that American people, the public, raise these issues and 

talk about their liberties. The administration should not dismiss 

them. Peoples’ talk about their First Amendment rights or Second 

Amendment rights or Fifth Amendment rights or any others should 

not be dismissed in a condescending way by the administration. 

4

The communities represent actually millions of Americans, not 

just a few liberty and privacy conscious Vermonters, as the Justice 

Department insinuates. But I think if you impugn the people of 

these 34 states who are dedicated libertarians or United States 

Senators for asking questions or raising concerns does not advance 

the debate or instill public confidence in the Department of Justice 

or the vast power it wields. It achieves just the opposite. 

Now, having said that, I am a strong proponent of the First 

Amendment, and I want to add, of course, the Department of Justice and its spokespeople have an absolute right to say anything 

they want, no matter how stupid it might be. Now, in a democracy, 

there is always going to be an inherent tension between government power and privacy rights. The threat of terrorism—and this, 

I would say on behalf of everybody—the threat of terrorism does 

heighten that tension, and that is difficult for the Department of 

Justice, and I readily concede that. And then, when you overlay 

that with excessive Government secrecy and a lack of cooperation 

and accountability taken by the administration in dealings with 

the Congress and the public, you further compound the tension, the 

risk to our free society. 

I remember when the Republican Chairman of the House said 

that he might have to subpoena the Attorney General to get answers. Undue secrecy undermines the system’s built-in checks and 

balances. But it also corrodes people’s faith that the Government 

will protect their freedoms, and we have enormous freedoms in this 

country, and that is one of the reasons why we are the most powerful democracy ever known. I think the reporter is probably picking 

up all of our conversations here. I can move to a different microphone. 

But if we are going to protect those freedoms, we have to have 

confidence that the Government will respect them, and that is 

what is necessary. Now, we have another 2 years before the powers 

we granted in the PATRIOT Act expire, so it is not too soon for us 

to take a look at these powers: what is working? What is not? What 

can we do better? Obviously, the PATRIOT Act has become the 

most visible target of public concerns, but the next hearing in the 

series will address a broad array of civil liberties issues, including 

issues relating to the 9/11 detentions that the DOJ Inspector General talked about in his excellent report earlier. 

So, I would hope that people take it seriously. The witnesses here 

were selected by Senator Hatch more than two weeks ago, but I 

understand some of the testimony did not arrive until 5:30 last 

night. I would hope that you would actually take things seriously. 

I mean, if I sounded somewhat annoyed before about the condescending attitude toward Congress by the Department of Justice 

and the condescending attitude toward 270 million Americans, it is 

because of things like that. We have been setting time aside; we 

have been preparing for this. We let you know about this two 

weeks ago. And to have testimony sort of slipped under the door 

at 5:30 at night does not help. 

I recall what happened: Chairman Sensenbrenner canceled a 

hearing when this happened, so I am looking forward to hearing; 

I want to hear how the administration feels about some of the bills 

that other Senators and I have introduced like the Grassley-LeahyVerDate 0ct 09 2002 14:29 Mar 01, 2005 Jkt 093622 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\93622.TXT SJUD4 PsN: CMORC
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Specter Domestic Surveillance Act, the Grassley-Leahy FBI Reform 

Act, the First Responders Act, the PATRIOT Oversight Restoration 

Act that Senators Craig and Sununu, Durbin, Reed and myself put 

in. I think these are important things. 

But, Mr. Chairman, I commend you for doing this, and I think 

your idea of the possibility of field hearings is an excellent one and, 

of course, as always, I will work closely with you on that. 

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

Chairman HATCH. Well, thank you. 

We will turn to Senator DeWine and then Senator Kennedy. 

STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM 

THE STATE OF OHIO 

Senator DEWINE. Mr. Chairman, I just want to thank you very 

much for holding this hearing. I am looking forward to hearing the 

testimony from the witnesses, and I think that one of the things 

that we want to look at today and keep in mind is how much of 

the complaints that we hear has to do with the PATRIOT Act and 

how much has to do with other things. And I think that is one of 

the things that we need to talk about today and focus on. 

I also am anxious to hear, frankly, from people who are in the 

field: Mr. McNulty has been in the field now for a few years now 

and has had the opportunity to deal directly with the PATRIOT 

Act. I have had the opportunity to talk with two U.S. Attorneys in 

Ohio, and they have had the opportunity to implement the PATRIOT Act as well as Mr. McNulty. 

And so, I think people like the U.S. Attorneys who have to deal 

with this on a daily basis have a lot to tell us about how this actually has worked. We were involved in writing this PATRIOT Act 

with suggestions from the administration, but to get the reports 

back about how it actually works; where it has been helpful; maybe 

where it has not worked as well as we had hoped it was going to 

work is the type of testimony that this Committee needs and will 

help inform our opinion as we try to make a determination about 

where this law needs to be changed in the future. 

So again, Mr. Chairman, I thank you for holding this hearing 

today, and we look forward to the testimony. 

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

Chairman HATCH. Senator Kennedy? 

STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR 

FROM THE STATE OF MASSACHUSETTS 

Senator KENNEDY. Thank you, Mr. Chairman. Thank you and 

Senator Leahy for having this hearing. 

Rarely in recent years have the activities of the Justice Department been so often at the forefront of public discussion, so controversial and so much need of close scrutiny by Congress, particularly in times of threats to national security. Congress, as you 

pointed out, Mr. Chairman, and as Senator Leahy pointed out, we 

have a special obligation to prevent excessive restrictions on the individual freedoms that are the essence of democracy and that symbolize our country in the world. 

6

Two years ago, in the attacks on September 11, we learned the 

oceans can no longer protect us from terrorism that has plagued 

other nations. We learned that our law enforcement agencies and 

our intelligence agencies were not adequately organized, trained or 

prepared to identify terrorists and prevent them from striking. We 

learned, especially from the report of the Senate and House Intelligence Committees of the serious problems in analyzing information, sharing it between agencies at the Federal, State and local 

levels and even between Federal agencies. 

As the FBI Director told the Committee, no one can say whether 

the tragedy of 9/11 could have been prevented if those problems 

had been corrected before 9/11. But 9/11 was certainly a wake-up 

call to these agencies. They were on notice that, whatever the reasons for their failures to connect the many dots which their separate activities had uncovered before the terrorist attacks, they 

needed to change their ways. 

We still do not know whether the basic nuts and bolts improvements that might have prevented 9/11 have been made. We do 

know that by the end of the first year after 9/11, there had not 

been enough improvements to prevent the sniper attacks here in 

the Capital area, even though there were many dots that could 

have been connected. The witnesses today have little to say on that 

key issue. Instead, like the Attorney General, they insist that defending extreme measures which may well threaten basic freedoms 

more than they prevent acts of terrorism. 

Only the Attorney General can supply adequate answers to our 

questions, and I, like others, regret that he is not here to do so. 

He has not reported to the Committee since early March, yet, he 

has had time to barnstorm the country in an exercise that is far 

more a public relations, not a law enforcement, exercise. We need 

better answers to a few basic questions. 

Why should we sacrifice liberty in hopes of greater safety until 

the Department has addressed the nuts-and-bolts problems with 

law enforcement and intelligence identified by the Joint Intelligence Committees? How can the Department ask for intrusive 

new Federal antiterror powers when basic law enforcement procedures are not up to date? For example, 2 years ago, after 9/11, we 

know that 15 states still lack the readily available modern fingerprint technology which could quickly have connected the dots and 

helped prevent the fatal shootings of the D.C. snipers. We did not 

know the D.C. snipers, whether they were deranged individuals or 

potentially even terrorists trying to terrorize the community. 

What will the Department and the administration do in response 

to the impressive report of the Department’s own Inspector General 

and the unprecedented complaints by the International Red Cross 

about the continued detention without any due process of so many 

hundreds of citizens and noncitizens alike? Was the attempted intimidation of a dissenting diplomat by linking his wife’s covert CIA 

role a careless act by a freelancing White House aide or a shameful 

symptom of the administration’s bent on punishing its domestic enemies? 

Finally, how can the Department of Justice say with a straight 

face that it is necessary to ride roughshod over the basic Constitutional principles of the First, Fourth, Fifth and Sixth Amendments 

7

in order to meet the needs of law enforcement and then insist that 

a Second Amendment right to bear arms prevails over the obvious 

need of law enforcement to keep guns out of the hands of criminals 

and terrorists? In the meantime, we intend to do our best to obtain 

answers to these questions in this and future hearings and begin 

with the answers of our witnesses today. 

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

I thank the chair. 

Chairman HATCH. Thanks. 

Senator Chambliss? 

STATEMENT OF HON. SAXBY CHAMBLISS, A U.S. SENATOR 

FROM THE STATE OF GEORGIA 

Senator CHAMBLISS. Thank you, Mr. Chairman. I, too, appreciate 

you and Senator Leahy convening this hearing. Senator Kennedy 

and I, in our Subcommittee on Immigration, Border Security and 

Citizenship have held a series of hearings regarding the operation, 

particularly, of our visa system and some other integral parts of 

the war on terrorism, and we are seeing some significant improvements made in the way that business is being conducted between 

the Department of Homeland Security, the Justice Department, the 

State Department and all of our other Federal agencies who are integrally involved in this particular issue of fighting terrorism. 

Today, we have an opportunity to again conduct some oversight 

into an area that we knew was going to be controversial when we 

enacted it, because we did move into an area of the post-9/11 world 

that none of us had ever been involved in before. And I think it 

is going to be interesting, particularly, to hear from folks who have 

been out there on the front lines as to whether or not what we did 

is working the way we anticipated it would work but most significantly the way they need for it to work and whether or not we need 

to expand, retract or whatever; that is what we are here to find 

out, and we have got the right people here to tell us how it is operating on a day-to-day basis, and I look forward to hearing from all 

of these gentlemen. 

Thank you, Mr. Chairman. 

Chairman HATCH. Thank you, sir. 

Senator Biden? 

STATEMENT OF HON. JOSEPH R. BIDEN, JR., A U.S. SENATOR 

FROM THE STATE OF DELAWARE 

Senator BIDEN. Thank you very much. 

Let me begin by commending you, Mr. Chairman, for holding 

this hearing. To state the obvious, it is somewhat repetitious, it is 

critically important that we be vigilant about the new power that 

we have granted the Department in our function as an oversight 

function. The fact is we all know the threat—I apologize for my 

cold—the threat that we face now is different, and it is real. And 

by all accounts, the Justice Department and the Criminal Division, 

the U.S. Attorneys’ offices in particular have done a pretty good job 

in terms of implementing that law. The Department has obtained 

152 convictions for defendants like the would-be shoe bomber and 

the American Taliban John Walker Lindh as well as disrupted terVerDate 0ct 09 2002 14:29 Mar 01, 2005 Jkt 093622 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\93622.TXT SJUD4 PsN: CMORC
8

rorist cells in everyday American cities of Buffalo, Seattle, Portland 

and Detroit. And for that effort, I think the Department should be 

commended. 

I must pause, however, to take a page from what I thought that 

my friend, Senator DeWine was going to say. I think that some of 

the criticism of the PATRIOT Act is not so much about the words 

written—and now my words—but how they are enforced and how 

you guys and women use it. 

Back in 1995, some 8 years ago, so I have a clean—I am straight 

with you all—I stood in the well of the United States Senate imploring my colleagues to adopt a series of antiterrorism tools designed to deter and apprehend terrorists before they engaged in 

their acts. And at that time, I stated unequivocally that it simply 

did not make any sense to me that many of our law enforcement 

tools were not available to fight terrorism. 

Perversely, the FBI could get a wiretap to investigate the Mafia, 

but it could not get one to investigate a terrorist cell. And I stand 

by my 1995 position that that sort of outcome was absurd. 

Today, I stand by my support of the USA PATRIOT Act. It contained many of the provisions that I argued for back in 1995. Parenthetically, I should add that in 1995, it was my Republican colleagues, led in part by the now-Attorney General of the United 

States, who argued against those provisions that I opposed in 1995. 

But because of the tragic events of 9/11, we took another look, a 

fresh look, at those proposals and some others. 

That said, I am fully aware of the tide of criticism that has been 

directed at some of the PATRIOT Act’s provisions. However, as the 

Washington Post editorialized back in August, I believe that some 

measure of the criticism is both misinformed and overblown. While 

portions of the act are indeed sweeping and imperfect, it represents 

a good faith effort to find some compromise to date what we all 

agree to be a foremost threat facing the United States of America, 

and that is a more radical, a more radicalized enemy intent on inflicting harm on American citizens. 

That is not to say, however, that the Justice Department should 

be absolved of the responsibility for its missteps and, I believe, poor 

judgment. Frankly, what I imagine is most alarming to the American public is not only the possibility that government can gather 

more information in cases on national security, which does disturb 

a lot of Americans, but also the administration’s designation of U.S. 

citizens as enemy combatants. What is alarming is that we are denying them meaningful access to lawyers. What is alarming is the 

administration’s liberal use of the detention of immigrants after 9/

11, a practice condemned by the Inspector General of the Justice 

Department. 

And by the way, I am personally troubled by the Department’s 

lack of candor regarding the implementation of the PATRIOT Act’s 

provisions. At a time when government has increased authority to 

find out more information about individual citizens, the Department has been less and less willing to share basic information 

about its activities. The Department operates in a shroud of secrecy, refusing to cooperate with Congress’ basic request for information. At this rate, the administration, in my view, stands to 

squander the new tools that this body reluctantly granted it 2 

9

years ago. The Department’s implementation of the act, if not improved, will surely doom this legislation’s continued life. 

That is not a threat. I think it is simply a word of advice. And 

I predict to you that the act will be repealed if you guys do not get 

your act together. The Department’s apparent strategy of conceal 

and ignore will be to the Department and this Nation’s detriment. 

And the idea that the Attorney General of the United States has 

to be in Philadelphia meeting about a Mayer Street or whatever 

the hell, the heck, he is doing and not being willing to be here before this Committee is outrageous. It is absolutely outrageous that 

he would not be here, and I just want the record to reflect that that 

is my view, and I thank you. 

Chairman HATCH. Senator Cornyn? 

STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM 

THE STATE OF TEXAS 

Senator CORNYN. Thank you, Mr. Chairman, and I want to 

thank, as the other members of the panel have, the Chairman and 

the Ranking Member for convening this important hearing. I was 

not a member of this body on September 11 when the terrorist attacks occurred on our own soil, nor was I here when bipartisan majorities of the U.S. Congress overwhelmingly passed the USA PATRIOT Act several weeks later by a vote of 98–1 in the United 

States Senate and 357–66 in the House. 

I have, of course, reviewed the record, and I have taken note of 

the numerous Senators on both sides of the aisle who praised that 

act for strengthening our law enforcement and intelligence tools to 

fight terrorism while respecting and preserving the civil liberties of 

American citizens, and Mr. Chairman, I would like to ask that a 

list of some of those statements, representative statements, be 

made part of the record. 

Chairman HATCH. Without objection 

Senator CORNYN. I am also aware that there have been voices of 

consent, critical of both the act and of Congress for approving legislation that, in their view, deprives individuals of their civil liberties. Thank goodness we live in a country where dissent and free 

speech are matters of constitutional right, and as an advocate of 

open government, I firmly believe that only through free speech 

and open government can we be sure that our liberties are secure 

even during a time of war. 

There have indeed been wartime deprivations of civil liberties in 

this country in the past: the internment of Japanese-Americans 

during World War II, censorship of the press during World War I; 

these things happen. But we should remember that this has been 

an issue since the earliest days of our history, when the Alien and 

Sedition Acts of 1794, four laws enacted in the wake of hostile actions of the French Revolutionary Government on the seas and in 

the councils of diplomacy, including the infamous XYZ Affair. 

So I strongly believe it is important for us to monitor our government to ensure that civil liberties are always adequately protected, 

even as we take the steps necessary to secure ourselves against terrorism and to stop our enemies who would do us great harm. Mr. 

Chairman, I do think that, so we put this in proper context, we do 

take due note that the Congress and the administration, including 

10

the Department of Justice and all of those who are allied in the 

war on terror must be doing something right, since, thank goodness, this country has been spared from further terrorist attacks on 

our own soil since September 11, and I think we should always remember and put all of this discussion in that context. 

It is because I worry about civil liberties that I worry about 

hysterical claims about civil liberties abuses. Every false claim of 

a civil rights violation discredits every true claim of a civil rights 

violation, and I believe that that hurts us all. I look forward to 

hearing today’s testimony and to learning whether the USA PATRIOT Act actually has served the purpose that Congress intended, and that is to save lives and to protect Americans from terrorist attacks without harming civil liberties, as I believe and as 

a bipartisan majority of the 107th Congress believed that it would 

and that I believe the act does. 

Thank you, Mr. Chairman. 

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

Chairman HATCH. Thank you. 

Senator Kohl, we will turn to you. 

STATEMENT OF HON. HERBERT KOHL, A U.S. SENATOR FROM 

THE STATE OF WISCONSIN 

Senator KOHL. Thank you, Mr. Chairman. We are here this 

morning to review the Justice Department’s efforts to investigate 

and prosecute suspected terrorists under the PATRIOT Act. Many 

of us are uneasy with the perception generated by the PATRIOT 

Act, namely, that Federal law enforcement is more powerful, more 

intrusive and less concerned with Constitutional rights than ever 

before. 

This concern is shared by many Americans. In fact, a recent poll 

showed that 52 percent of Americans feel that the PATRIOT Act 

has gone too far in compromising Constitutional rights. With the 

increased power of the PATRIOT Act comes increased responsibility not to chill or infringe upon the civil liberties of law abiding 

citizens. We are concerned that the administration, perhaps, does 

not get this balance right. 

Although fighting terrorism was the rationale for enacting the 

PATRIOT Act, we are troubled with the aggressive application of 

this statute to non-terrorism cases. Critics contend that the administration is using terrorism to pursue a wider law enforcement 

agenda. Indeed, a Justice Department report confirmed that hundreds of non-terrorism cases were pursued under the PATRIOT 

Act. For example, the New York Times reported that one provision 

of the PATRIOT Act, specifically, a new section criminalizing 

threats to mass transportation systems was used by authorities to 

sentence a 20-year-old lovesick woman to 2 years in Federal prison 

for leaving threatening notes on a cruise ship simply because she 

wanted the boat to return to port so that she could see her boyfriend. 

Though such hoaxes should be taken seriously, we must ask if 

the PATRIOT Act was really intended to send such individuals to 

Federal prison. Arguably, the PATRIOT Act has made Federal law 

enforcement more invasive in the lives of Americans than at any 

11

other time in our history. For example, the PATRIOT Act allows 

the Treasury Secretary to require banks to keep even closer tabs 

over their customers. This mandate has rankled many banks and 

citizens alike, forcing them to question the need for these provisions in the war on terrorism. 

We need to be reassured that the good that the PATRIOT Act 

has brought outweighs the bad and whether there has been overuse or abuse of the new powers granted by this law. We should examine whether or not the PATRIOT Act needs to be reigned in. So 

we look forward to having these questions addressed by our witnesses here today and at future hearings, which will address the 

administration’s efforts to combat terrorism. 

Thank you, Mr. Chairman. 

Chairman HATCH. Thank you, Senator. 

Senator Feinstein? 

STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR 

FROM THE STATE OF CALIFORNIA 

Senator FEINSTEIN. Thank you very much, Mr. Chairman, for 

holding these hearings. Senator Kyl and I held an oversight hearing in the Terrorism and Technology Subcommittee on the full PATRIOT Act about a year ago in October, but this is the first hearing this Committee has held. And I think it is really very important to hold these hearings. I happen to agree with what Senator 

Biden said: the Attorney General really should be here. He sets the 

policy. 

I have tried to see what has happened in the complaints that 

have come in about the PATRIOT Act, and I have received to date 

21,434 complaints. Conversely, I have received six calls in favor of 

the act. When we took a look at the letters, post cards, and emails 

that came in, it was very revealing. This correspondence breaks 

down into three sets. The first set was really against PATRIOT II, 

draft legislation that would have expanded the PATRIOT Act. That 

bill was never formally sent to the Hill. My hope is that it is dead 

in the water. While a great bulk of complaints are against PATRIOT II, we have never seen a final version of PATRIOT II. 

Now, the rest of my mail is evenly divided regarding civil liberties in general and the National Security Entry-Exit Registration 

System in particular. That is the system which requires males from 

certain countries to be photographed, fingerprinted and interviewed. It has nothing to do with the PATRIOT Act. Now, of the 

194 communities across this country in 34 states that have passed 

resolutions or ordinances against the PATRIOT Act, 45 of them are 

in California. There are three types of these resolutions or ordinances. For the most part, though, they generally complain that 

the Act violates civil liberties, leads to profiling, and is reminiscent 

of past instances of civil rights violations. 

In fact, I have never had a single specific abuse of the PATRIOT 

Act reported to me. My staff emailed the ACLU and asked them 

for instances of actual abuses. They emailed back and said they 

had none. Additionally, there are complaints about specific sections 

of the PATRIOT Act. These do not assert any specific abuses, but 

they target individual sections. As you know, 16 sections of this bill 

were sunsetted after 5 years, and we sunsetted them largely beVerDate 0ct 09 2002 14:29 Mar 01, 2005 Jkt 093622 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\93622.TXT SJUD4 PsN: CMORC
12

cause we were concerned that there might be abuses, and we wanted to watch these sections and at the end of 5 years have the ability to take a look at those 16 sections and see if they were abused. 

Well, the targeted sections include Section 213—that is sneak 

and peek. Now, this section allows the court to delay a notice of 

a search warrant if the court finds reasonable cause to believe that 

providing immediate notification of the execution of the warrant 

would have adverse effect. Interestingly enough, according to the 

Director of the FBI, the sneak and peek authority provided in this 

bill has never been used against a library, I believe. In spite of 

this, Congressman Otter offered an amendment in the house to an 

appropriations bill that would block law enforcement from using 

this authority. 

But I think many miss the fact that section 213 is, for the most 

part, as I understand it, a codification of authority that was created 

by case law in the United States Court of Appeals for the Ninth 

Circuit in 1996 and the U.S. Court of Appeals for the Second Circuit in 1990. If I understand what we did in section 213, it was in 

some respects narrower than the authority that existed before the 

PATRIOT Act in the Ninth Circuit and the Second Circuit. In addition, we provided in the PATRIOT Act certain additional safeguards in the area of sneak and peek so that civil liberties are actually better protected now in California, Idaho, New York and in 

other states that fell under those jurisdictions than before the PATRIOT Act. 

Section 215, FISA business records. This is the provision about 

which the libraries are worried. A number of letters commented on 

it. And that section removes the agent of a foreign power standard 

for court-ordered access to certain business records under FISA and 

expands the scope of court orders to include access to other records 

and tangible items. 

I would like to hear from the witnesses today about that section 

and how it has been used. 

Another section mentioned in letters was 218. This section, together with section 504(a), allows coordination between intelligence 

and law enforcement, and it was the one that changed the standard required for a FISA order from primary purpose to significant 

purpose. I think I first suggested that amendment. The amendment 

helps lower the wall between intelligence and law enforcement. 

Another is section 314, which requires cooperative efforts to deter 

money laundering and allows the sharing of information by law enforcement and regulatory authorities and financial institutions to 

help detect terrorist financing and/or money laundering. And the 

final one is Section 411, which changes definitions related to terrorism and makes it easier to deport aliens who raise money for 

terrorist organizations and broadens the definition of terrorist organizations. 

Now, in my judgment, there is a lot of public concern out there 

about this bill. I find it interesting that of the over 21,000 comments I received—now, I generally wait until I get about 30,000 before I come to any specific conclusions—but of the 21,434 who have 

written or called, to have half really against a bill that has never 

been introduced is interesting, and to have a substantial number 

13

relate to the National Entry-Exit Registration System, which is not 

part of the bill, is also interesting. 

Now, what I have deduced from this is that there is substantial 

uncertainty, perhaps some ignorance, about what this bill does 

and, secondly, how this bill has been employed. So I look forward 

to these hearings as a way of clearing some of that up. 

I thank you, Mr. Chairman. 

Chairman HATCH. Thank you. 

Senator Feingold? 

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

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Thank you for agreeing to hold the series of oversight hearings 

on the administration’s counterterrorism efforts. My first priority 

and I strongly believe Congress’ first priority in a post-September 

11 America is to fight terrorism. Today, the Committee will hear 

the administration’s perspective on its counterterrorism initiatives, 

and I am eager to hear what the administration has to say. 

I also look forward to our next hearing, when I am told we will 

hear from experts outside the administration who believe that our 

government can do a better job fighting terrorism without sacrificing the values that make us the greatest democracy on Earth. 

I understand the hearing will be held on November 5, and I commend the Chairman and the Ranking Member for their collaboration in arranging those hearings. 

Mr. Chairman, I think we must be mindful that while there have 

been important successes in the war on terrorism, there are legitimate concerns, legitimate concerns, about whether some of the administration’s conduct has been fair, just and effective. According 

to the Justice Department’s own Inspector General, many of the 

over 750 men who were rounded up and detained on immigration 

violations in the aftermath of September 11 were haphazardly and 

indiscriminately labeled as terrorist suspects. But none were ever 

charged with a terrorism offense, and some were treated in an inexcusably harsh and unfair manner. I remember very well that 

those of us who raised questions about the treatment of these detainees at the time were accused of, quote, ‘‘aiding the terrorists,’’ 

unquote. 

Now, the Inspector General has vindicated our concerns but 2 

years too late to help those whose rights were violated. In addition, 

three men, two of whom are U.S. citizens have been designated 

enemy combatants and are currently detained by the military here 

in the U.S. They are locked up with no access to attorneys or family and no guarantee that they will ever be charged or have their 

day in court. This treatment raises questions that I think go to the 

very core of the Bill of Rights. 

Mr. Chairman, then, there is the PATRIOT Act. As I made clear 

during the debate on the bill 2 years ago, I supported 90 percent 

of the USA PATRIOT Act. But the bill went too far in some respects, and I am very pleased that there is a growing bipartisan 

support, including some of our colleagues from both sides of the 

aisle on this Committee, to modify the law to ensure that it is consistent with the Constitution and not be subject to abuse. 

14

There is too much confusion and misinformation about this issue, 

as the Senator from California just indicated. The first is the notion that I think I heard somebody say that the sneak and peek 

provisions are sunsetted, which they are not, and that they have 

not been used, which is not the case. They are being used, and they 

do need review. They do need to be sunsetted, and they do need 

to be modified. 

Secondly, I do acknowledge that the administration has indicated 

that they have not used the Section 215 library provisions, provisions that they described as essential to the fight against terrorism. 

Now, which is it? That they have never used them, or that they are 

essential? And what is the objection, then, to reasonable modifications if they have not even been used? 

Finally, the Senator from California effectively demonstrated the 

vast number of Americans that are raising questions about this 

bill. Of course, not everybody who raises those objections knows all 

of the details of the bill, just like the members of the Senate did 

not know the details of the bill when they voted for it. But they 

do sense that something is wrong. 

The way to handle that is not to refer to people who have concerns as hysterical. The way to handle that is to talk to the American people about their concerns, to carefully go through what is 

needed and what is not needed, what is being used, and what is 

not being used. I regard the administration’s attempt to 

marginalize and dismiss those who criticize this bill as highly objectionable and not consistent with the fundamental goal, and the 

fundamental goal, Mr. Chairman, is to bring the American people 

together as we fight terrorism, not to label people who have questions as marginal or hysterical. 

So, Mr. Chairman, I thank you for having this hearing, and I 

look forward to this one as well as the next one that is specifically 

on the USA PATRIOT Act. Thank you, Mr. Chairman. 

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

Chairman HATCH. Senator Craig? 

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

THE STATE OF IDAHO 

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

here basically to listen and to see what is happening within this 

law. As you know, I have recently joined with a group of my colleagues in crafting some reform to the PATRIOT Act that we are 

now calling the SAFE Act that we believe have some essential 

grounds for clear review before this Committee. 

But I must say that whether it is SAFE Act or PATRIOT Act or 

where we go, let me give you a new statistic. I just came from 

doing an interview on Social Security card issuances. I am Chairman of the Aging Committee. And it is frustrating to me: last year, 

we issued 12.4 million Social Security cards in this country, 1.2 

million, 22 percent, to noncitizens: no background checks, no indication that these were all legal, foreign aliens in our country; 1.2 

million. We have got problems everywhere when it comes to effectively tracking those who are in our country, handling them right 

15

and handling them reasonably and giving our law enforcement the 

appropriate tools to do so while protecting our civil liberties. 

Gentlemen, I am anxious to hear your testimony. 

Chairman HATCH. Well, thank you, Senator. 

Senator Schumer? 

STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR 

FROM THE STATE OF NEW YORK 

Senator SCHUMER. Mr. Chairman, thank you for holding these 

hearings. These hearings are entitled Protecting our National Security from Terrorist Attacks, a Review of Criminal Terrorist Investigations and Prosecutions. 

Well, the investigation that I am most interested in—it should 

come as no surprise—is that into the allegation that someone in 

the administration leaked the name of a covert CIA agent. It is, in 

my opinion, a dastardly crime, and it goes to the heart of our ability to deal with terrorism. 

Let me start by welcoming the three witnesses who are here this 

morning. It is unfortunate that the two people who can best answer 

questions about that investigation, Attorney General Ashcroft and 

John Dion, head of the Counterespionage Section, are not here 

today. It is a shame that Attorney General Ashcroft has chosen to 

stay away from the hearing, since he is a close ally of the President 

and has refused to recuse himself from the investigation thusfar. 

We do not have the slightest idea about the extent of his involvement. We do not know, for instance, if he is involved in determining what witnesses can be interviewed or whether a new line 

of questioning can be pursued. These are crucial questions that 

deal with the integrity of this investigation. 

Now, I sent a letter to Chairman Hatch, and we called the Justice Department asking that Mr. Dion be here today, because other 

than Attorney General Ashcroft, he is really the only one who can 

tell us what we need to know about who is running the investigation and how independent it really is. It is a shame that he, too, 

is not here today, but at least we will have the opportunity to ask 

Mr. Wray to shed some much-needed light here. 

There are a lot of questions that we need answered in this investigation. These do not deal with the specific facts of any ongoing 

investigation; rather, they deal with the structure and independence of the investigation, something that is well within this Committee’s purview and something I hope we will pursue with some 

degree of diligence. But here are some of the questions that I would 

like answered: first and foremost, who is really in charge of this 

investigation? While DOJ says that career prosecutors are running 

this investigation, it is quite clear that close associates and allies 

of the President are in the line of command and have not recused 

themselves. 

Does Mr. Dion have the power to take whatever investigative 

steps he deems appropriate? Or can he be blocked from subpoenaing documents, putting a witness in the grand jury or doing 

anything else he believes is essential to finding out who committed 

this dastardly crime? If someone with a conflict of interest or an 

apparent conflict of interest can block Mr. Dion from investigating 

this case the right way, that is a very, very big problem. 

16

I, for one, want to know what is being done about it. Why have 

we seen such unusual delays? Why did the Department of Justice 

accede to a White House request to delay telling employees to preserve evidence? And why has a special prosecutor not been appointed to run this investigation? 

I take the Justice Department’s criminal investigation into the 

leak of a covert CIA operative’s identity very seriously, because it 

is an act so vile and so heinous that it is a shock to the conscience. 

It demands a full and fearless investigation that is above politics, 

but so far, the way that this probe has been conducted falls short 

of that bar. These questions go to the heart of whether the public 

can trust that the investigation is being conducted in a responsible 

manner. It should not take a hearing to determine that, but that 

is what we are left with. 

Now, Mr. Chairman, I advised Mr. Wray’s staff that I would be 

asking these questions today, so there is no surprise here. We do 

not want to surprise anyone, catch anyone off guard. We just want 

the answers we have been seeking for weeks. This Committee has 

important oversight responsibilities, not only on the PATRIOT Act 

but about this investigation as well, and we owe a duty to the 

American people and our intelligence operatives, brave men and 

women on the front lines risking their lives for us, to ensure that 

this investigation is done right, and I look forward to getting some 

answers today. 

Chairman HATCH. Thank you. 

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

Senator Durbin? 

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

FROM THE STATE OF ILLINOIS 

Senator DURBIN. Thank you very much, Mr. Chairman. I want 

to thank those who are here before the Committee today, particularly Pat Fitzgerald, who comes to us from the Northern District 

of Illinois, and I was happy to support Senator Fitzgerald’s—no relation—nomination of Pat Fitzgerald. He has done an excellent job 

as our U.S. Attorney and may be one of the most knowledgeable 

people in this whole subject of terrorism. So I am looking forward 

to his testimony. Though we may disagree on a point or two, I certainly respect him and all of the other witnesses who are before us. 

But the point has been raised over and over again: there is an 

empty chair here today, a chair which should be filled by the Attorney General of the United States, who, frankly, has been a rare 

visitor to Capitol Hill when it comes to justifying his administration’s process and procedure that they are using to fight terrorism. 

It really strikes me as indefensible that we are here in the Judiciary Committee reviewing the most critical piece of legislation involving civil rights and liberties in America, and the Attorney General of the United States is too busy to be here. 

I do not understand that. I do not think it makes any sense, and 

I do not think it is fair. And it is not just a matter of his personal 

appearance. I have had an experience that other Senators have had 

that this Department of Justice is unresponsive to letters and requests for information. They really believe that they are above it 

17

all, that oversight is not something that they really have to submit 

themselves to. 

In the name of fighting terrorism, they are ignoring their basic 

Constitutional responsibility. Now, I am glad that the people who 

are before us today will be able to answer questions, but Attorney 

General John Ashcroft should be in one of those chairs before that 

microphone answering the questions that we have had raised by 

citizens all across America about the PATRIOT Act. And I think 

that the fact that he is not here is a sad commentary on this administration’s attitude toward its Constitutional responsibility. 

Put in historical context the PATRIOT Act: it was passed at a 

critical moment in the history of the United States. It was a moment of tragedy; it was a moment of fear. It was a moment when 

we moved, at the Government’s suggestion, to give our Government 

more powers to apprehend those responsible for crimes of terrorism. And there were misgivings on our part. Many of us on this 

panel wondered: have we gone too far? Have we given the Government more authority than we should have, more than it needs? 

Have we infringed on the Bill of Rights that we have all sworn to 

protect on both sides of the table? 

We were not sure, but because we were certain that we wanted 

to make America safe, we voted for this PATRIOT Act, and now 

come voices back to us asking questions about whether we did go 

too far. And I listened to Senator Feinstein, and I think she is 

probably right. If you ask the average critic of the PATRIOT Act, 

be specific, what is it about this law that you do not like, many are 

at a loss to be that specific. But keep in mind what is at play here. 

Who has the burden of proof when it comes to taking away the 

rights and liberties of Americans? It certainly is the Government’s 

burden to prove that. The individual citizen should not have to 

make that case. The Government ought to stand up and say this 

is why we are taking away your rights and liberties. This is why 

order is more important than liberty. 

They have that burden. And the fact that individuals writing us 

letters cannot give us chapter and verse as to exactly why they are 

troubled by the PATRIOT Act I think, frankly, shifts that burden. 

It says to the average person in the street, you have to come up 

with an explanation of why this Government is going too far, a 

Government through an Attorney General who refuses to be held 

accountable, refuses to submit himself to the oversight of this Committee. 

And listen to what that Government, what that Attorney General 

says of his critics: when he did appear before this Committee in a 

rare appearance, he said, quote, ‘‘to those who scare peace-loving 

people with phantoms of lost liberty, my message is this: your tactics could only aid terrorists, for they erode our National unity and 

diminish our resolve. They give ammunition to America’s enemies 

and pause to America’s friends. They encourage people of good will 

to remain silent in the face of evil.’’ 

And that was not the end of it. On September 19 of this year, 

another quote from Attorney General Ashcroft about the critics of 

the PATRIOT Act: ‘‘The charges of the hysterics are revealed for 

what they are: castles in the air built on misrepresentations supported by unfounded fear held aloft by hysteria.’’ That is what the 

18

Attorney General of the United States said to those Americans and 

those Senators and Congressmen questioning whether the PATRIOT Act went too far. 

And that, I believe, is why he is not at the table today, because 

if he were held to the same standard of proof of why this Government needs to take away our rights and liberties, I think he would 

be at a loss. 

Now, people on both ends of the political spectrum have come together, right and left, and said that there are at least three areas 

of this law that went too far. And the Government, in response, has 

said, well, we have not even used it. Well, it is 2 years after September 11, and if you have not used them, perhaps you do not need 

them. And frankly, those you have used, sneak and peek, for example, raise serious questions as to whether they infringe on our Constitutional rights. 

I hope, Mr. Chairman, the next time we have a meeting of this 

Committee, the Attorney General will not be too busy to come before us and be held accountable, to be subjected to the oversight 

that this Committee, I think, has a responsibility to exert on behalf 

of people all across America who believe as I do that the presumption is on the side of American citizens in protecting our rights and 

liberties, and the burden is on the Government to prove time and 

again that they have to infringe on those rights and to establish 

new law. 

Thank you, Mr. Chairman. 

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

Chairman HATCH. Well, let the record show that we did not invite Attorney General Ashcroft to this hearing. The purpose of this 

hearing is to have these law enforcement officials help us to understand some of these things better. He will be invited. He has said 

he will come. And I just want to make that record clear. 

Now, one other thing: you know, I listened to Senator Schumer, 

and I have to say that a leak concerning intelligence information 

or agents can never be condoned. I do not believe that there is anyone who disagrees with that proposition, and I join in Senator 

Schumer’s desire that the identity of the person who leaked this serious information be discovered. 

But I believe that the Department of Justice is the appropriate 

agency to look into this matter. Historically, the CIA notifies the 

Department of Justice— 

Senator LEAHY. Mr. Chairman, if I could just interrupt for just 

one second— 

Chairman HATCH. Sure. 

Senator LEAHY. We did request that Mr. Ashcroft come here to 

testify, and we did express the concern that, with all due respect 

to Mr. Wray, Mr. Fitzgerald and Mr. McNulty, this is usually the 

level we see for a staff briefing, not for the full Committee. 

Chairman HATCH. Well, let me just make it clear: I think these 

are three of the top law enforcement officials in the country who 

are on the front lines, and we decided to go with them first. But 

let us also make it clear, in all fairness to the Attorney General 

that we did not invite him. So I do not think that we should be 

19

pounding on the Attorney General for failing to appear here when 

he was not invited. And that is the point I am making. 

Now, with regard to leaks, approximately 50 times a year, every 

year, the Justice Department is asked to investigate complaints 

about the leak of classified information. The Department has career professionals dealing with these matters, and their professionalism and experience will ensure a competent and complete investigation. 

When you talk about career prosecutors, I am told that one of the 

most experienced career prosecutors in this area is John Dion, a career Justice employee who is heading this investigation. Now, consider that Mr. Dion has participated in the investigation and arrest 

of those responsible for breaching national security during both Republican administrations—the Walker spy ring, for example—and 

during Democratic administrations, like the Robert Hansen and Aldrich Ames cases. This is the quality of this man. He is obviously 

a man who follows the evidence wherever it may lead, and because 

of this experience, I cannot understand why anyone would suggest 

that the Department would appoint anyone other than Mr. Dion to 

look into this matter. 

He is a career Department prosecutor, and he has the authority 

to look at this. Now, Attorney General Ashcroft has directed this 

matter to be undertaken with the kind of thoroughness, promptness and professionalism that Mr. Dion has exhibited throughout 

his service and his entire career across a variety of administrations. Now, having John Dion here today would serve no real purpose other than propounding questions to him that he cannot answer because of the ongoing investigation, and more importantly, 

having him here would take away from actually conducting this investigation. 

Mr. Dion represents the nature of career employees within the 

FBI and the Department of Justice. The continuity of service within our law enforcement community through Republican and Democratic administrations is what makes the criminal justice system in 

this country the best that there is in the world today. 

Chairman HATCH. Now, I just wanted to set the record straight, 

because the purpose of this hearing is to get into some of these 

questions that people have raised and to get it straight from the 

horse’s mouth, from people who are prosecuting these matters. We 

have the chief of the Criminal Division today, Hon. Christopher 

Wray, who will begin our discussion. He is the chief of the—excuse 

me; just let me introduce them and then—he is the chief of the 

Criminal Division of the United States Department of Justice; Hon. 

Patrick Fitzgerald, the U.S. Attorney for the Northern District of 

Illinois, one of the top U.S. Attorneys in the country, as is Hon. 

Paul McNulty, whom we all know from having served up here on 

Capitol Hill, U.S. Attorney for the Eastern District of Virginia in 

Alexandria, Virginia. 

And I am interested in what you have to say, and then, we are 

going to have a series of these hearings, and we will have the Attorney General, the Director of the FBI and others in here to add 

to what you folks have to say and to answer any questions that 

anybody on this Committee will care to ask. And we will do that, 

and we will do that at the appropriate time. 

20

Senator SCHUMER. Mr. Chairman, just briefly— 

Chairman HATCH. Sure. 

Senator SCHUMER. —because you addressed me, and I just want 

to briefly—and I know the Committee’s time is valuable, address 

them. 

Chairman HATCH. Right. 

Senator SCHUMER. Two things: there are many leak investigations. There has not been, to my recollection, a leak of a covert 

agent’s name, number one; that is a crime. And second— 

Chairman HATCH. They are all crimes. 

Senator SCHUMER. —that it was alleged by a reputed columnist 

that it was done by high-level administration officials. We do not 

know who they are. That is quite different from a regular leak investigation. I have no doubt about Mr. Dion’s integrity. You are 

right: he is a fine career employee. But on a highly sensitive investigation like this, it may be and it may not be that his higher-ups 

have asked him to check with them before he does, that or the 

other thing. It might be Attorney General Ashcroft; it might be 

somebody else. 

Those questions—it is our obligation to find those out. Those do 

not interfere with the ongoing investigation. In fact, in fact, Mr. 

Chairman, with all due respect, that makes sure that we have a 

real ongoing investigation that gets to the bottom of this. To ask 

about the structure of an investigation is different from questions 

who are you questioning and what have they said, which I do not 

think that this Committee should do. 

So I would just hope that we could either bring Attorney General 

Ashcroft here, who I think speaks volumes by his absence, or, at 

the very minimum, or, at the very minimum, we bring Mr. Dion 

here to ask him those questions. And I think that is perfectly not 

only appropriate but within the role, within the obligation of this 

Committee, because let me tell you: at least in my State, in New 

York, this is not a partisan issue. I get questions from people of 

both parties, of all political persuasions, and all they want to do is 

get to the bottom of this. It does not matter who it was, as long 

as you find out who it is and punish them. 

Chairman HATCH. I understand, and you will be able to ask Attorney General Ashcroft those questions when he comes. 

Now, with regard to Mr. Dion, we will see, but it is an ongoing 

investigation, and let us just see where it goes. 

With that, we will turn to Mr. Wray. Then, we will go right to 

Mr. Fitzgerald and then to Mr. McNulty. And you each have 7 minutes. We would appreciate it if you could cover everything that you 

can in that limited period of time. And then, we will have questions. 

STATEMENT OF CHRISTOPHER WRAY, CHIEF, CRIMINAL 

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

Mr. WRAY. Mr. Chairman, members of the Committee, thank you 

for asking the three of us here today. I am pleased to be able to 

discuss with you the Justice Department’s efforts in the war on terror and how the PATRIOT Act has helped prosecutors and agents 

on the front lines of that war. 

21

Like many of you, I remember where I was on September 11 

when I first learned of the attacks on the World Trade Center and 

the Pentagon. I recall vividly the chill I felt as I watched the television footage of the wounded Manhattan skyline, and I will never 

forget the conversations that I had with my wife and children after 

learning of the tragedy, or the grim faces of my colleagues at the 

Justice Department, or the dense weight that settled in my stomach for the rest of that mournful day. 

Just as memorable, though, were the heavy burdens of the next 

few months. All of us in the Department jolted with a start and a 

quickened pulse every time our pagers went off, whether it was in 

the middle of the day or the middle of the night. Our adrenaline 

went racing with every report of white powder in someone’s mail. 

Every airplane pilot who did not promptly respond to radio calls 

brought a familiar cold knot to our stomachs, and we were determined not to miss something that would cost more innocent lives. 

So each of these incidents made us think with dread, not again. 

I also shared the frustration felt by our agents and prosecutors 

who were working around the clock to prevent more terrorist attacks and to apprehend those responsible for September 11. Those 

of us who had spent many years fighting non-terrorism crimes 

were incredulous to learn that the law barred us from using many 

of our trusted tools to fight terrorism. Faced with a sophisticated, 

well-financed and ruthless enemy determined to kill vast numbers 

of Americans, we could not pursue terrorists with the same methods we used against drug dealers. 

This was maddening, and as we continued to check our pagers 

and our cell phones, we knew that we could be and should be doing 

more. Thankfully, when confronted with this sober situation, Congress responded with the PATRIOT Act. After six weeks of intense 

scrutiny, negotiation and debate, Congress passed the Act by overwhelmingly bipartisan margins, and to those of us in the field, the 

Act was nothing short of a breakthrough. 

Now, prosecutors and agents can communicate far more easily 

with intelligence and military officials and coordinate their efforts. 

They can adapt to the sophisticated methods now used by terrorists. They can use tools that have long been available to fight nonterrorism crimes. They can punish terrorists and their supporters 

more severely. Such measures are an absolute necessity when all 

that the enemy seeks is a base hit, and we have to pitch a perfect 

game every single day. 

The PATRIOT Act removed the legal barriers that prevented law 

enforcement officials from sharing information with the intelligence 

and military communities. Before the Act, the law required these 

groups to form separate huddles that could not readily talk to each 

other, and naturally, the collective defense against terrorism was 

weaker than it should have been. And that information sharing 

post-PATRIOT Act has proven effective. It led to the indictment of 

Sami Al-Arian and other alleged members of the Palestinian Islamic Jihad in Tampa, Florida. PIJ is responsible or believed responsible for over 100 murders, including those of two young Americans, 20-year-old Alisa Flatow and 16-year-old Shoshana BenYishai. 

22

Intelligence information sharing also assisted in the investigation 

of Ilyas Ali in San Diego, California, who was charged with conspiring to exchange hashish for anti-aircraft missiles for sale to Al 

Qaeda. The PATRIOT Act also brought the law up to date with 

current technology, so we no longer have to fight a digital-age battle with antique weapons. Terrorists, like other criminals, now use 

modern technology to conduct their activities. To us, the PATRIOT 

Act simply leveled the playing field by allowing investigators to 

adapt to these measures. 

The PATRIOT Act has also given prosecutors and investigators 

stronger tools with which to deter and disrupt terrorist activity. By 

increasing the maximum sentences for a number of terrorism-related offenses, the Act ensures that terrorists and their supporters 

are punished appropriately and, just as importantly, leads to more 

information and cooperation from those linked to terrorism. 

Another important tool that a number of the members of the 

Committee have already mentioned has been the delayed-notice 

search warrant. This tool allows investigators to delay, not to deny, 

notifying the target of a search for a limited time while the courtapproved warrant is executed. The use of this tool has long been 

upheld by courts in investigations of organized crime and drug offenses. The PATRIOT Act simply codified the case law in this area 

to provide certainty and consistency in terrorism and other criminal investigations; for example, in a recent narcoterrorism case, 

one court issued a delayed-notice warrant to search an envelope 

that had been mailed to the target of the investigation. 

By getting that kind of a warrant, it allowed the officials working 

on the case to continue investigating without compromising a wiretap. That search ultimately confirmed that the target was funneling money to an affiliate of the Islamic Jihad terrorist organization. 

It is easy to be lulled into complacency about the terrorist threat, 

and as September 11 recedes in time, it is natural for it to begin 

to resemble some hazy, horrible nightmare. But as we know, and 

as Congress recognized when it passed the PATRIOT Act, this was 

not a bad dream. Every morning, officials in the law enforcement, 

intelligence and military communities are confronting the threat on 

a very real basis. There are many who will gladly take the place 

of the September 11 hijackers, who are just as intent on killing 

many more innocent Americans. And the fervor and organization of 

our enemy requires us to be vigilant. Figures like Osama bin 

Laden continue to exhort their followers to fulfill their holy duty 

of killing Americans. One such message, as the Committee knows, 

from bin Laden, aired just this past Saturday. 

And terrorists have gained footholds everywhere, even in our 

own backyards. They now operate from places like Idaho and 

Lackawanna, New York, and Portland, Oregon, and Tampa, Florida. 

The Department has enjoyed key successes in the war on terrorism. Since the attacks of September 11, we have charged 284 defendants as a result of terrorism investigations. To date, over 150 

of them have been convicted. We have broken up terrorist cells in 

Buffalo, Charlotte, Detroit, Seattle and Portland. Through interagency and international cooperation, over half of Al Qaeda’s leadVerDate 0ct 09 2002 14:29 Mar 01, 2005 Jkt 093622 PO 00000 Frm 00026 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\93622.TXT SJUD4 PsN: CMORC
23

ership worldwide has been captured or killed. And more importantly, since September 11, 2001, we have not seen another major 

terrorist attack on American soil. 

For this blessing, we can thank not only our dedicated front line 

agents and prosecutors but also the enhanced capabilities that the 

PATRIOT Act affords them. I should say that the Act has not gone 

unnoticed amongst the terrorists themselves. As the Attorney General pointed out last week, they are, in fact, explicitly complaining 

about the Act. Jeffrey Battle is a member of the Portland terrorist 

cell who recently pleaded guilty, and the investigation revealed 

that he was explaining to one FBI informant during the course of 

the activity that his enterprise was not as organized or well-financed as it should have been because, and I quote, ‘‘we don’t have 

support.’’ 

Because of the PATRIOT Act, defendant Battle complained, ‘‘everybody is scared to give up any money to help us.’’ And I would 

respectfully submit that this Committee and the Congress can and 

should be proud of results like that. I want to assure the members 

of the Committee that the Department is well aware of its responsibility to uphold the rights of every American while protecting the 

country from terrorist attacks. Congress itself embedded a number 

of procedural safeguards in the PATRIOT Act, including the fact, 

and I cannot emphasize this enough, that almost everything that 

the Department does under the Act is reviewed by an independent 

Federal judge. 

To date, no provision of the Act has been held unconstitutional 

by any court. We also observe comprehensive constitutional, statutory and administrative rules that guide all Justice Department investigators and prosecutors. The PATRIOT Act, in our view, from 

the front lines, successfully balances our National security with our 

civil liberties, and the Department is committed to protecting the 

freedoms that we all so dearly cherish. 

Mr. Chairman, I thank you again for inviting us here and for giving us the opportunity to discuss how the PATRIOT Act is being 

used every day in the field to fight terrorism. I would also like to 

thank the Committee for its continued leadership and support. And 

after you hear from my colleagues, Mr. Fitzgerald and Mr. McNulty, I would be happy to take a shot at any questions that you all 

would like to ask us. 

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

for the record.] 

Chairman HATCH. Thank you, Mr. Wray. We appreciate your testimony. 

Mr. Fitzgerald, we will turn to you. 

STATEMENT OF PATRICK FITZGERALD, UNITED STATES ATTORNEY, NORTHERN DISTRICT OF ILLINOIS, CHICAGO, ILLINOIS 

Mr. FITZGERALD. Thank you, Mr. Chairman and members of the 

Committee. I am very happy to be invited here today, really for two 

different reasons. One is I think it is very, very important that we 

get the record straight as to what has led to the PATRIOT Act and 

how it has been put into effect. 

24

Something that Senator Feinstein mentioned, I think, is very 

true: there is much misinformation and confusion out there. In 

talking to the community in Illinois, I can tell you that many people have genuinely-held concerns about the PATRIOT Act that are 

based upon misinformation that is in the public domain. Everything that we can do to set forth what is and what is not in the 

PATRIOT Act I think would be helpful to the American people. 

And the second important reason is I would like to thank this 

Committee and Congress on behalf of the prosecutors in the field 

and the FBI agents working these cases for finally ending the wall 

that was part of the PATRIOT Act. I come to this Committee having worked for 7 years on terrorism cases before the PATRIOT Act 

and can give the Committee, I think, a sort of before and after 

view. 

The most important thing the PATRIOT Act did was to end the 

wall that blocked criminal and intelligence investigators from talking to each other. And let me give you a concrete example: in New 

York, FBI agents, criminal agents, and prosecutors work together—

I was part of the team—in 1996 when we began the investigation 

of Osama bin Laden. And here were the ground rules: we could 

talk to the FBI agents working the criminal case; we could talk to 

the New York City Police Department; we could talk to other Federal agencies in the Government, including the intelligence community; we could talk to citizens; foreign police; and foreign intelligence, including spies. 

We did that. We went overseas to talk to people. We could even 

talk to Al Qaeda. We took Al Qaeda members and associates, and 

we hauled them before a grand jury and asked them questions, and 

I will describe some of that today, because usually, that is not public, but it has since become public. And beyond that, we talked to 

Al Qaeda members who agreed to defect, and we debriefed overseas 

and worked with us. 

It is amazing that we could talk to Al Qaeda, but we had a group 

of people we were not allowed to talk to. And those were the FBI 

agents across the street in Manhattan working the parallel intelligence investigation. We could not talk to them. And we knew 

then, and we know now, that any system that allows prosecutors 

to talk to just about anyone in the world, including Al Qaeda, but 

not the FBI agents investigating the same case was broken. And 

what the PATRIOT Act did was to shatter that dysfunctional wall 

that prevented us from doing our jobs. 

Let me give you a concrete example of how that came into play, 

involving a person named Ali Mohamed. On August 7, 1998, two 

embassies, two American embassies, one in Nairobi, Kenya and one 

in Dar es Salaam, Tanzania, were bombed nearly simultaneously, 

10 minutes apart. It was quickly clear to us that Al Qaeda was involved. And the criminal investigation team deployed to Africa did 

some investigative steps, made some arrests over there and then 

returned to the United States. 

At that point in time, we knew about a person named Ali 

Mohamed, who was a U.S. citizen living in California. He had become a U.S. citizen after serving in the American Army from 1986 

to 1989. We knew he had links to Al Qaeda and knew the people 

over in Nairobi who had carried out the bombing but had not left 

25

the United States effectively for about 5 years. He was a person of 

interest to our investigation. 

We subpoenaed him to a grand jury in Manhattan, brought him 

into the grand jury, where he lied, and he left the building. We 

knew that he had plans to fly to Egypt, and we had a decision to 

make that day: do we arrest him, or do we let him go? We had to 

make that decision without knowing what was on the other side of 

the wall. We did not know what evidence we would have from the 

intelligence investigation. 

And as we sat and made that decision, we got lucky. We decided 

to arrest him that night and not let him leave the country. After 

we made that decision, which we made with only knowing part of 

our hand because of the wall, we later received the evidence that 

had been obtained in the intelligence channels, from the intelligence investigation in California, and we found a search had happened which recovered many documents, including handwritten 

communications with Al Qaeda members that, had we known 

about, would have made our decision a lot easier. 

Later on, as a result of further investigation, Ali Mohamed plead 

guilty, and he admitted in court that he is the one that largely 

trained the Al Qaeda network in terrorism techniques, in intelligence, in counterintelligence techniques. He trained bin Laden; 

Ayman Al-Zawahiri, the number two; Muhammad Atef, the former 

military commander, and many others. 

Chairman HATCH. That is Ali Sheikh Mohamed? 

Mr. FITZGERALD. This is Ali Mohamed. His middle name is not 

Sheikh. It is Ali A. Mohamed from California. 

And he trained those members. He also conducted the surveillance of the American Embassy in Nairobi back in 1993 and 

showed surveillance photographs to Osama bin Laden afterwards. 

As part of his plea, he admitted that had he not been arrested in 

New York in September 1998, he intended to rejoin Osama bin 

Laden overseas in Afghanistan. Had we made the wrong decision 

because we had not seen what was on the other side of the wall, 

instead of being in a jail, Ali Mohamed could be in cave in Tora 

Bora or who knows where else, were he with Osama bin Laden 

right now. 

And the notion, when I hear in the public debate that the PATRIOT Act too quickly took down the wall in a rush after 9/11, I 

bang my head against a desk and say it was too late. For 10 years, 

we worked under this sort of broken system where we were not allowed to know what each other were doing. So I applaud this Committee for taking down the wall and allowing those cases to proceed. 

I will rely upon my written record and compare now what we do 

post-PATRIOT Act. Before, when we had two teams connecting the 

dots separately, at the risk that they did not put their dots together, now, we do not have that broken system. In Chicago, I 

work with the SAC, the Special Agent in Charge of the FBI, Tom 

Kneir, and his agents and my staff, and we sit down and decide 

what is the FBI looking at? Who are the terrorist suspects? What 

intelligence are they gathering? We compare notes on what criminal cases we are doing, and we decide if we have information that 

we can put together. 

26

We make a decision about whether or not criminal charges can 

be brought. Then, we make an informed policy decision about what 

cases should be brought. We can turn around and decide that it is 

better for national security to let an intelligence investigation proceed, or we can decide that we are safer taking this person out of 

existence, putting them in jail so that they cannot operate and hoping to get information out of them. 

That seems logical and simple, to decide what is the best for our 

country based upon full information, and it is. It was not that way 

before the PATRIOT Act, and I applaud this Committee and the 

Senate for having enacted it. 

With that, I will rely upon my written statement and be happy 

to answer any questions at the end of the testimony. 

[The prepared statement of Mr. Fitzgerald appears as a submission for the record.] 

Chairman HATCH. We will put the full written statements in the 

record. 

Let me just add back in 1996, when we passed the Hatch-Dole 

Anti-Terrorism Effective Death Penalty Act, I tried to get a number 

of these provisions into law then. Senator Biden mentioned that he 

had worked on that as well, which he had. 

We were stopped then by the far left and the far right complaining about American civil liberties, which, as you have pointed 

out, have been protected in the PATRIOT Act. And the same arguments were used then. But had we had those provisions that are 

currently in the PATRIOT Act, we might very well have interdicted 

and caught these terrorists on 9/11. And that is something we cannot know, but it is something that will haunt me the rest of my 

life, that we were unsuccessful in getting that through, in getting 

a lot of these ideas through back in 1996, even though that was 

a major step forward in the fight against terrorism in this country. 

But we are grateful to people like the three of you for the work 

that you are doing. I just wanted to make that point, because there 

are a number of us who have really tried to get these tools to law 

enforcement through the years but were stopped by the extremists 

on both ends, both extremes, who seem to be dominating the debate in the media today. 

Mr. McNulty? 

STATEMENT OF PAUL MCNULTY, UNITED STATES ATTORNEY, 

EASTERN DISTRICT OF VIRGINIA, ALEXANDRIA, VIRGINIA 

Mr. MCNULTY. Thank you, Mr. Chairman and members of the 

Committee. I am glad to have the opportunity to be here today to 

discuss what is happening in the Eastern District of Virginia in the 

war on terrorism, and I am proud to report that the men and 

women in my office are fully devoted to this cause and have sacrificed countless hours, precious time away from home and family, 

to do all they can to prevent terrorism and to prosecute terrorists 

and those who support them. 

Of course, the top priority in the Eastern District is terrorism. 

We have developed a strategic plan to ensure that we have the 

most proactive and comprehensive effort in pursuit of this top priority. 

27

An early step in our strategic planning process was to examine 

the actions of the September 11 hijackers and determine what we 

could do to prevent future terrorist acts of a similar nature. We discovered, among other things, that the terrorists obtained fraudulent identification, received large financial resources to sustain 

themselves for long periods of time, and breached security at the 

airports. 

These facts have played a significant role in the development of 

our district’s strategic objectives in counterterrorism. Mr. Chairman, we have six objectives: first, identify the terrorist threats. 

What Mr. Fitzgerald talked about in terms of the exchange of information between U.S. Attorneys’ offices and the FBI is part of that 

effort to serve that objective: identify the threats. Two, eliminate 

material support to terrorists. Three, restore the integrity of our 

identification, financial and immigration systems. Four, protect the 

vital infrastructure of Eastern Virginia. Five, successfully prosecute terrorists. And six, protect our National security information. 

Generally speaking, these objectives can be summarized in the 

goal of identifying and disrupting terrorist networks in the United 

States. The challenge is to find and stop terrorist killers among us 

before they can carry out their plans. 

Now, crime prevention, by its nature, is difficult to measure. 

How do you quantify that which does not happen? But by aggressively attacking the method and means of terrorism, I believe we 

have been effective in preventing it. Shortly after I took office more 

than 2 years ago, I created a terrorism national security unit with 

more than a dozen experienced prosecutors assigned full-time to 

terrorism cases, and this group of dedicated individuals, working 

with many other people in law enforcement, have disrupted the activities of terrorists and their supporters. We have closed off whole 

avenues that terrorists have used in the past to sustain themselves 

in the United States. We have clamped down on illegal money remitters, gone after credit card bust-out schemes, and made it harder for people to pretend to be somebody they are not or to pretend 

that they are legally in this country. 

In short, our objective has been to make it much more difficult 

for terrorists to operate. Let me briefly highlight some of our initiatives: in the area of identification document fraud, we are seeking 

to unmask the terrorists by stopping the large-scale purveyors of 

fraudulent documents and by strengthening the integrity of our 

Nation’s identification system. Identification document fraud is pervasive, and Virginia appears to be a hub of this activity. If a person 

is willing to pay the price, fraudulent identification can be obtained 

for any purpose, no questions asked. 

Identification document fraud is big business. A pair of defendants dealing in fraudulent immigration documents, labor certificates, made no less than $6.3 million in the space of 18 months, 

including $1 million in cash seized from a suitcase under one of the 

defendants’ beds. Identification document fraud directly undermines our homeland security. It creates huge holes in our immigration and naturalization controls. It helps terrorists enter and remain in our country, and it facilitates other crimes, such as credit 

card fraud, mortgage fraud or bank fraud. 

28

And this is no abstract concern. Seven of the September 11 hijackers obtained genuine Virginia identification cards by submitting false proof of Virginia residency to the DMV. 

Now, with regard to financing, as I said earlier, terrorists need 

financial support. Sleeper cells cost money. Mr. Wray’s earlier 

anecdote about admissions by one defendant is very telling. And in 

order to dry up potential sources of terrorist financing, we now 

take cases to develop informants and cooperators who may provide 

valuable information. Criminals who smuggle cigarettes or sell 

bogus baby formula, for example, may provide information about 

terrorist financiers. We investigate such cases because the money 

from these scams sometimes heads back to terrorists. 

Similarly, we now examine suspicious activity reports from financial institutions that too often went unread for lack of resources. 

We seize money from and prosecute unlicensed money remitters 

and money couriers at the international airports, and we scan 

bankruptcy reports to detect credit card fraud among individuals 

claiming that they ran up hundreds of thousands of dollars in credit card debt but cannot pay it back because, in reality, they transferred it to Pakistan. 

We have been very aggressive in our investigation of terrorist financing, especially on money sent from America to support terrorism overseas. Based on an indictment that has been recently unsealed, I can tell you that tens of thousands of dollars were sent 

from organizations and individuals in Northern Virginia to Salaam 

Al-Arian, who presently awaits trial in Tampa, Florida, on terrorism charges involving the Palestinian Islamic Jihad. 

I am also pleased to tell you that we recently obtained our first 

conviction in this wide-ranging financial support investigation. 

Soliman Biheiri, the founder of a company known as BMI, was convicted of immigration fraud. In the course of a related investigation, a BMI accountant contacted an FBI agent and told him that, 

quote, ‘‘funds the accountant was transferring overseas on behalf of 

the company may have been used to finance the embassy bombings 

in Africa.’’ 

But preventing document fraud or drying up financial resources 

is not enough. We must also take away opportunities for terrorists 

to strike. Recent news reports about box cutters on airplanes reminds us that we must be vigilant about who has access to secure 

areas of our Nation’s airports, maritime ports, power plants and 

military bases. Last year, we established a task force to investigate 

28,000 holders of secure area access badges at Reagan National 

and Dulles Airports. In the end, approximately 120 of them were 

charged with various crimes, including making false statements, 

Social Security fraud and immigration fraud. Another 20 badge 

holders were arrested by INS on administrative charges. 

Finally, Mr. Chairman, the dedicated men and women in my office must be equipped with the proper tools and resources for this 

fight. Our success is dependent on it. The USA PATRIOT Act, in 

my view, is an integral part of our efforts to identify terrorists and 

disrupt their activities in the United States. It provides law enforcement with important tools to enhance our Nation’s domestic 

security and to prevent future acts of terrorism. 

29

We used a PATRIOT Act provision to obtain a court order, for 

example, and a search warrant from a single United States District 

Court in a complex, multi-state financial investigation of terrorists’ 

financial networks. This provision in the PATRIOT Act greatly expedited the investigation and saved precious time that would have 

been spent obtaining warrants in other districts. And that tool is 

something we make frequent use of, being able to centralize location for seeking warrants that have a nationwide reach. 

Another example: delayed notification search warrants. These 

warrants have been used in drug cases for years, and the PATRIOT Act now allows this tool to be used in terrorism cases. In 

one recent case, the court authorized a delayed notice of a business 

in Virginia. Surreptitious entry permitted law enforcement agents 

to copy numerous records without removing them related to the offenses under investigation. Pursuant to the court order, a copy of 

the warrant was not left on the premises of the business at the 

conclusion of the search. We believe that proceeds of the drug trafficking activities supported operations of Islamic extremist organizations, including Al Qaeda. 

Without this authority, the investigation, as well as the safety of 

cooperating witnesses, would have been seriously jeopardized. And 

by the way, that notice has now been made. 

In conclusion, Mr. Chairman, the word from the front lines of the 

domestic war on terrorism is hopeful. We are making progress in 

prosecuting terrorists and disrupting the criminal activity that supports them. And the PATRIOT Act has played a significant part in 

the successes we have enjoyed to date. 

Thank you, and I look forward to your questions and discussing 

these issues with you. 

[The prepared statement of Mr. McNulty appears as a submission for the record.] 

Chairman HATCH. Well, thank you so much. We have appreciated all three of you being here and patiently listening and also 

contributing here. 

Let me ask each of you the same question. We start with you, 

Mr. Wray. From a law enforcement perspective, is our country in 

a better position today to prevent acts of terrorism than we were 

on September 10, 2001? Tell us if we are; tell us why. 

Mr. WRAY. Thank you, Mr. Chairman. My answer to your question is that absolutely, we are in a better position today to fight 

against the enemy that would do us harm, in no small part because 

of the PATRIOT Act. The information-sharing wall that has been 

overcome that Mr. Fitzgerald talked about and I think all three of 

us made reference to, in particular, is really a sea change in how 

law enforcement, intelligence and military officials, lawyers and 

agents, all interact with each other. It means that the Government’s effort is an integrated, coordinated one in a way that I can 

only say from having been in the Department before September 11, 

been in the Department during September 11, and been in the Department after September 11, is just a really dramatic and very 

positive change. I think the American people would be proud of the 

cooperation and coordination that that provides. 

Another crucial thing I would add is that some of the greater 

penalties that the PATRIOT Act provides, especially on material 

30

support, have been used to get greater cooperation. One of the complaints that you used to hear a lot when people were trying to figure out what went wrong is that we did not have enough sources 

of human intelligence—that we had lots of electronic interceptions 

of different sorts, but it was ambiguous and oblique, and we could 

not really tell what it meant. 

But one of the best ways to get inside any organization is to get 

cooperators, to get human intelligence. And to do that, you need leverage, and the PATRIOT Act provided us with useful leverage in 

getting cooperation. I would mention, for example, the recent Detroit terrorism prosecution, which is a nice little juxtaposition. You 

had two defendants, Koubriti and Elmardoudi, who were both convicted of the same offense, but the conduct of one of them went beyond the time frame of the PATRIOT Act. Therefore, he was covered by the PATRIOT Act, and he now faces a significantly greater 

penalty as a result of that. 

So in conclusion, I think that we are in much better shape than 

we were, but we have, obviously, a long way to go, and we look forward to being able to continue to work with this Committee in the 

future. 

Chairman HATCH. I think you mentioned since the PATRIOT 

Act, how many suspected terrorists have been apprehended, and 

how many have been convicted? 

Mr. WRAY. We have charged, I believe, about two hundred and 

eighty something defendants as a result of terrorism investigations. 

Chairman HATCH. These are within the United States of America? 

Mr. WRAY. All charged within the United States, some convicted 

for crimes that targeted Americans overseas, but the charges are 

here in the United States. 

Chairman HATCH. How many convicted? 

Mr. WRAY. A little over 150 so far. 

Chairman HATCH. That is a remarkable record. 

Mr. Fitzgerald, do you care to add anything here? 

Mr. FITZGERALD. I would just reaffirm that I think we absolutely 

are safer today because of the PATRIOT Act, if nothing else due 

to the taking down of the wall. That is the single greatest change 

we needed, and it was made. 

Chairman HATCH. Thank you. 

Mr. McNulty? 

Mr. MCNULTY. Yes; without question. People have been stopped 

in their planning who may have gone undetected in the past. Iman 

Ferris, for example, has pleaded guilty in Eastern Virginia. This is 

a gentleman who was scoping out the Brooklyn Bridge as a future 

target for Al Qaeda. Major sources of money have been dried up. 

Just extremely large sums, accounts have been frozen, and many 

of the groups that were involved in financing have been slowed or 

stopped in their actions, and the systems and vulnerabilities that 

I discussed in my testimony have been improved. There is still a 

long way to go there, but it is harder to get certain kinds of fraudulent identification than it was before, because we are more aware 

of that weakness in our system. 

So there have been a number of relatively minor, in the sense of 

comparison to prosecuting a live terrorist, but important systems 

31

issues that I think have been improved to make a difference as 

well. 

Chairman HATCH. All right; now, all of your testimonies are replete with references to the PATRIOT Act. Please help the Committee and the general public by telling us what happens at the 

operational level when a suspected terrorist is arrested. Are they 

charged under the PATRIOT Act or under other statutes? Please 

explain how the post-September 11 PATRIOT Act works with regard to pre-existing criminal statutes. 

Do you want to start? 

Mr. WRAY. Thank you, Mr. Chairman. 

When a defendant, say one of these 280 that I mentioned, is arrested in the course of a terrorism investigation, they generally 

would not be charged with a crime under the PATRIOT Act per se. 

There are some who would be charged with material support, 

which was a crime that existed before the PATRIOT Act but was 

improved and enhanced by the PATRIOT Act. Some of them would 

also be charged under a provision—I think it is 373—which goes 

to unlicensed money transmitters or hawalas, because a lot of what 

is going on in the effort to prevent further terrorist attacks is the 

targeting of fundraising and support that exists. 

However, the PATRIOT Act is used quite frequently in the 

course of the investigations that lead up to those charges. So, in 

other words, you might have a defendant who was charged with 

false statements or some kind of identity theft or something of that 

nature who would never be charged with a terrorism offense at 

that time. But in the course of the terrorism investigation that led 

to that charge, PATRIOT Act tools, investigative tools, would have 

been used. 

Chairman HATCH. Do you care to add anything? 

Mr. FITZGERALD. I would simply add that there are people probably using the PATRIOT Act and not aware that they are, because 

when you are a prosecutor, you take out Title 18, and I start at 

Section 1 and read to the back to make sure I look at every possible option. 

So if you use one of the material support statutes or a money 

laundering statute, you may not recognize that that has been modified by the PATRIOT Act, because as a field prosecutor, you do not 

care which tool you are using. You want the right one. But I think 

what Chris said is the most important point is you may be having 

an arrest because of the PATRIOT Act because the information is 

being shared. 

Without the information being shared, you may not know to arrest someone in the first place. Once you make the arrest, you pick 

whatever statute works, whether it is 100 years old or 1 year old. 

Chairman HATCH. Let me just say, a lot of people fail to recognize that a lot of the things that we put in the PATRIOT Act were 

already in law with regard to prosecuting hardened criminals, drug 

lords, et cetera, et cetera. What makes the PATRIOT Act so much 

more dangerous when it is basically just codifying the law enforcement that we were able to use against mobsters and racketeers and 

others who commit heinous crimes in our society? 

Mr. WRAY. Mr. Chairman, I do not think the PATRIOT Act is 

dangerous, and I think you have focused exactly on the right issue. 

32

There is, as several members of the Committee recognized, a level 

of confusion in the discourse about the PATRIOT Act and what is 

part of the PATRIOT Act and what is not. 

Chairman HATCH. Would it be fair to say that we just bring the 

PATRIOT Act up to the level, in most cases, of what already is the 

law with regard to other violent crimes? 

Mr. WRAY. There are a number of illustrations of that in the PATRIOT Act. For example, the wiretap provisions are a classic example of that. 

Chairman HATCH. Pen register trap and trace provisions. 

Mr. WRAY. Exactly. 

Chairman HATCH. Getting the phone numbers in and out of a 

terrorist’s phone; you could not do that before the PATRIOT Act. 

You could not knock down this wall and have discussions between 

the various segments of law enforcement. You could go on and on, 

I guess. Give me some other illustrations, if you care, please. 

Mr. WRAY. Well, the other thing is that some of the provisions 

that are criticized are actually efforts to bring the intelligence investigators closer to the criminal powers. But in some cases, the 

ability to investigate a person for credit card fraud is easier to use 

on the criminal side than it would be to investigate the same person for a bombing. 

Chairman HATCH. Well, as a matter of fact, sometimes, it is a little bit more difficult using the PATRIOT Act, because you have 

more onerous provisions in the PATRIOT Act than you have to 

meet than there are under current criminal laws; is that not correct? 

Mr. WRAY. Yes. If you were looking for business records, if I suspected a person was engaged in credit card fraud, I or any one of 

130 prosecutors in my office could issue a subpoena in very short 

order without judicial oversight before the issuance of the subpoena 

to obtain those business records— 

Chairman HATCH. Sure. 

Mr. WRAY. —based upon a showing of relevance. But if an agent 

were doing it to investigate a terrorist bombing plot in Chicago, he 

would have to make a showing in Washington to get the approval 

to do so. So whenever FISA court approval is required for something or a higher-level approval, you are looking at a higher standard than is required for a person investigating a criminal case. 

Chairman HATCH. Right; and then, with regard to the library situation that has been blown out of proportion in most of the newspapers in this country, it has never been used, but you can use it 

for violent crime. That is the ability to go after business records, 

including library records, that was used in the Unabomber case, 

right? 

Mr. WRAY. That is correct. 

Chairman HATCH. And in other cases as well. 

Mr. WRAY. Yes. 

Chairman HATCH. So all we are doing is giving the same rights 

to go after terrorists that we have already in existence to go after 

violent criminals. 

Mr. WRAY. And even to go after nonviolent criminals involving 

loss of money. If there is a Federal violation for loss of money, 

those powers are still available. 

33

Chairman HATCH. And before the PATRIOT Act, you could not 

do those things with regard to terrorism or suspected terrorism. 

Mr. WRAY. Correct. 

Chairman HATCH. Well, my time is up. We are going to limit everybody to exactly 10 minutes. I let everybody go over on their 

statements, which everybody did, and we will start with Senator 

Leahy. 

Senator LEAHY. Thank you, Mr. Chairman, and I have found 

both the discussion and the answers interesting. Incidentally, Mr. 

McNulty, you may want to be careful using the example. I understand the temptation about what we have seen recently with the 

box cutters and all. I think if anything, that should be an example 

of sheer embarrassment for our Government. Those things sat 

there that long. There were many who feel that the prosecution of 

the person who put it there is more to cover the fact that the Government dropped the ball. I am not suggesting that that is the reason at all, but that is not one of the brightest lights of things we 

have seen recently. 

Mr. Wray, on October 14 of this year, a few days ago, the FBI 

announced it is going to recruit more language translators because 

of the FBI’s expanding coverage into areas that require translation 

support. It is interesting the timing of that. Two years ago, I authored the provision in the PATRIOT Act that was designed to help 

the hiring of more translators by the FBI. Section 205 granted 

them the authority to expeditiously hire translators. I did that because of the reports about getting involved in material that sat 

there that was never translated. 

Now, in July 2002, last year, whistleblowers in the FBI said they 

are still not doing anything on the FBI translation program. So I 

asked the Attorney General specific questions. President Bush had 

signed into law this act. Section 205 was the law. Why was it not 

being followed? 

A year later, the Attorney General got around to answering my 

letter; actually, on July 17 of this year, and said the FBI’s success 

in recruiting, vetting and hiring linguists has eliminated the need 

to implement the provisions set forth in Section 205 of the act. In 

other words, the Attorney General said we do not have to follow 

what you wrote into the law. 

That is fine. I have heard that before. But, so, on July 17, the 

Attorney General, 2 years later and 1 year after I asked the question, said we do not have to follow that part of the law, but on October 14, he said that, well, now, we do have to hire more translators. Is there an inconsistency there? Is that section now, finally, 

after 2 years being followed? 

Mr. WRAY. Senator— 

Senator LEAHY. Just curious. 

Mr. WRAY. I am sorry. 

Senator LEAHY. I said just curious. 

Mr. WRAY. I am not intimately familiar with the FBI’s current 

translator hiring program. I certainly share your concern that 

translators are a vital part of our terrorism investigations and that 

the speed with which we need to move, which I know you recognize, is directly affected by that. 

34

Senator LEAHY. You are familiar with the Department of Justice 

and their handling, and in July, we were told by the Department 

of Justice we did not need to follow this section. Now, apparently, 

we are. Is there an inconsistency in that? I do not care about the 

FBI. I am talking about the Department of Justice generally. 

Mr. WRAY. And in the instance of the particular correspondence 

that you are describing about this provision, I am not familiar with 

those particular letters, so I cannot speak to it. 

Senator LEAHY. All right. 

Mr. WRAY. It does sound like there has been a delay in responding to you, and that is unfortunate. 

Senator LEAHY. One of the reasons we would kind of like to have 

the Attorney General come here. But I will repeat it for the record, 

and I expect an answer back. This has been on the books for 2 

years. We were told in July we do not have to follow the law, and 

then, about a week ago, we are told that we need the law. I just 

want to know which is accurate. 

Now, the Attorney General has announced that the Department 

has not used Section 215 of the PATRIOT Act to obtain records 

from libraries or from anyone else, for that matter. But in a letter 

to the House Judiciary Committee dated June 13 of last year, the 

Department stated that the FISA court order under Section 215 

could conceivably be served on a public library or bookstore then 

added that the more appropriate tool would be a national security 

letter. 

So the FBI could seek the production of certain library records. 

I am speaking now not in specifics but just in the law. The FBI 

could seek the production of certain library records using NSLs, national security letters; is that right? 

Mr. WRAY. Senator, the national security letters do provide for 

production of some records. They do not cover as many types of 

business records. 

Senator LEAHY. I understand. I understand the difference. I was 

there at the drafting of this legislation. Go ahead. 

Mr. WRAY. And the other relative disadvantage to national security letters over the FISA business records request is the relative 

speed with which one can compel production. 

Senator LEAHY. Has the FBI served any NSLs on libraries since 

September 11? 

Mr. WRAY. Not that I am aware of. 

Senator LEAHY. And they have not used Section 215. 

Mr. WRAY. That is correct. That number was recently declassified. 

Senator LEAHY. Now, I know that in your answers to the chairman’s question, you were talking about the number of people being 

convicted of terrorism, and it sounded like a pretty good conviction 

record. Actually, we find in 2003, there were 616 defendants convicted in cases classified as terrorism, in fiscal year 2003, 616 defendants convicted in cases classified as terrorism cases. That is a 

pretty high number. I suppose we are doing one heck of a battle. 

But then, it says only 236 were sentenced to prison terms, and the 

median prison sentence was 2 months. 

Are we putting a whole lot of cases in under the rubric of terrorism that really do not belong there to make the statistics look 

35

good? You do not have to answer that, but let me ask you this: has 

the Department of Justice notified U.S. Attorneys around the country to reclassify as many cases as they can to make them terrorism 

cases and not routine immigration cases or whatever? 

Mr. WRAY. The Department has, over the course of the last year 

or so, tried to make significant improvements in the accuracy of its 

record keeping on investigations, specifically terrorism investigations. One thing that I would say about— 

Senator LEAHY. Is that a way of saying—is that a bureaucratic 

way of saying that they have reclassified a lot of cases that were 

not called terrorism, and now, they are called terrorism? 

Mr. WRAY. No, it is not. 

Senator LEAHY. Okay. What does it mean? 

Mr. WRAY. What it means is that there are a number of terrorism investigations—and I think each of my colleagues could 

speak to this as well from their respective districts—but there are 

a number of terrorism investigations where the decision is made at 

the charging stage to charge the defendant with a non-terrorism 

crime in order to protect, in particular, national security and classified information that may be exposed, sources and methods and 

that sort of thing, that may be jeopardized by the criminal discovery that would ensue if we were to charge the terrorism offense. 

So sometimes—in fact, fairly frequently—the judgment is made 

that a lesser non-terrorism offense, a fraud offense, that sort of 

thing, will be charged as a result of a terrorism investigation in 

connection with somebody whom intelligence links to terrorist organizations. 

Senator LEAHY. But, Mr. Wray, let us be serious about this. A 

few months after September 11, when there was—just about the 

time that there had been a lot of criticism that maybe the Department of Justice had dropped the ball; in fact, one of the senior Republican Senators had said that had they connected the dots, the 

Department of Justice connected the dots, we might have avoided 

September 11. I do not know if I would draw that conclusion or not, 

but there was criticism there. And then, all of a sudden, everything 

is reclassified, and lo and behold, we are just getting more terrorism convictions than we had ever seen. Nothing seems to have 

changed that much but more terrorism convictions. 

And then, we find that the average sentence or the median sentence is 2 months. Now, real terrorists are not getting two-month 

sentences. I mean, the Department of Justice is not going to stand 

for that. I point that out because it is great to say look at all of 

these huge new convictions we are getting in terrorism, but two 

month sentences? I mean, this is like looking at the, you know, 

look at the enormous job we have done on bank robberies. We got 

the guy who stole $800. 

Mr. Fitzpatrick, you have a tremendous career investigating and 

prosecuting terrorism cases in the civilian judicial system: U.S. 

Embassy bombing case, prosecutions of Sheikh Omar, Abdel 

Raman, Ramsey Youseff, and so on. Since September 11, the administration has decided some terrorism suspects will not be given 

a trial in Federal court but will be designated as enemy combatants: Jose Padilla, Yaser Hamdi, Ali al-Marri; two of those cases, 

of course, originated in Illinois. 

36

Do you think Padilla and al-Marri could have been prosecuted 

successfully within our civilian judicial system? 

Mr. FITZGERALD. I do not know the facts of those cases to give 

you an honest opinion, and to be blunt, I never like to speak about 

other people’s cases if I do not know the facts. I can tell you, obviously, that I understand it is a heavy decision the President has 

to make to make a decision, do we go with what is the ordinary 

criminal process versus a special case. And I recognize people are 

concerned that we would like to do things in the regular judicial 

system. But I also recognize that the President has to look at situations sometimes where there may be very good reason to believe 

that if the person is allowed to walk around on the street, that they 

can kill, and there may not be the ability to use information as evidence in a courtroom and that the answer is not to let a citizen 

wander the street through Times Square and everywhere else because we cannot prevent that from happening. 

But I cannot tell you— 

Senator LEAHY. You had no role in the Padilla case? 

Mr. FITZGERALD. I was on the periphery of Padilla, because he 

had come through Chicago; went back to New York as a material 

witness, so he was briefly in Chicago, so I knew about him. And 

then, he went back to New York, and Southern New York was looking at him, and then, I learned about the decision after it was 

made by the President. 

And if I could just answer just one brief thing on the last question you asked Mr. Wray, I certainly was given no directive from 

Washington to sort of pump the numbers on the terrorism side. 

Senator LEAHY. I appreciate that, and as I said, Mr. Fitzgerald, 

I have a great deal of respect for you and the work that you have 

done in the past. It is not in the abstract; it is in the concrete, and 

we have all benefitted by that. Thank you. 

Thank you, Mr. Chairman. 

Chairman HATCH. Thank you. 

Senator LEAHY. I will submit other questions for the record. 

Chairman HATCH. Thank you, Senator. We will all submit questions to the record if desired. 

Senator DeWine? 

Senator DEWINE. Thank you, Mr. Chairman. 

Mr. McNulty, Mr. Fitzgerald, you both are on the front line in 

the war on terrorism, but you also run offices and run the gamut 

of criminal prosecution. Since September 11, we have asked the 

FBI to do really a sea change in how they approach things, and 

they are obviously doing a lot more preventive work in regard to 

terrorism. 

When the FBI testifies here, I ask them what are you doing less 

of? And so, I am going to ask you what are you doing less of? What 

are you prosecuting less of? If I looked at your office records for the 

last couple of years, what do I see less of? What are you prosecuting, Mr. McNulty, less of than you were a couple of years ago? 

Mr. MCNULTY. Well, I do not know if the statistics would actually bear that out. 

Senator DEWINE. Or anecdotally will be fine. 

Mr. MCNULTY. Yes, but my sense is, of course, that we struggle 

more now to get the resources we need in generally speaking the 

37

white collar area. And I think if you talk to my colleagues around 

the country, they would acknowledge that with the FBI’s first priority in terrorism and the considerable effort that each field office 

is making to do all that they can to detect and disrupt and to prevent future acts that we have had to try to be a little more innovative when it comes to finding investigative resources for the wide 

range of frauds that we may have been able to have resources for 

in the past. 

I work closely with the Washington Field Office of the FBI. They 

have additional burdens. When the anthrax attacks occurred, that 

office was diverted in its resources to try to deal with that investigation. So these are real problems that each SAC struggles with. 

I might add, by the way, that we are meeting as a group this week 

together, the Special Agents in Charge and all of the U.S. Attorneys, to work through these very questions to find out how we can 

do more with sometimes less in certain categories for investigations. 

Senator DEWINE. What about drugs? 

Mr. MCNULTY. Drugs? We have not seen a real problem there. 

Now, the FBI’s role in drugs has been largely through the OCDF 

program in the past; continues to be. I mean, they have had, certainly, a substantial number of investigations in drug trafficking 

activity that has not only been in OCDF, but that has been a key 

focus. And because of the DEA’s commitment there and the task 

forces with local law enforcement, I think the Director of the FBI 

would say that he has probably fewer agents today doing drug investigations, but I have not seen, in the Eastern District of Virginia, that be a problem. 

Senator DEWINE. You are not seeing that change? 

Mr. MCNULTY. I am not seeing a change in the number of our 

cases. Our cases, we have more drug cases now than we had before 

9/11. 

Senator DEWINE. Really? 

Mr. MCNULTY. Yes; part of this goes back to an effort just by the 

prosecutors and other resources to lean forward even more and 

make that a priority. 

Senator DEWINE. Mr. Fitzgerald? 

Mr. FITZGERALD. I have not seen a decrease in our caseload. In 

the office, we did receive additional resources for terrorism. I think 

our caseload in the year after 9/11 went up about 50 percent. So 

we have not seen a change in volume. I can say, working with the 

FBI, that the FBI has reallocated resources to terrorism. It has not 

hurt in the drug area because they have done it smartly. As Paul 

said, they work through OCDETF, and they work through HIDTA, 

which are task force programs, and they have made it an emphasis 

to make sure that where the FBI agents are participating, it is because they are adding value and letting DEA take more of a role. 

So in the drug area and in the violent crime area, the FBI has 

scaled back smartly. In the white collar area, it is still one of the 

top priorities of the office, and it is the same with the FBI, so we 

get their attention to focus on the biggest cases we have. The concern that I have is that the medium-level cases in white collar, not 

just because some resources have to go to terrorism, but we have 

taken some of their best agents in the white collar area because we 

38

need to go after terrorism financing. I think it is a smart move, because the best way to fight terrorism is to dry up the money. 

We do want to make sure we keep up the experience level. Separate from that, there is a demographic, I think, in a lot of law enforcement agencies where there are a lot of agents who have a lot 

of experience in white collar crime who are coming of age to retirement, and we lose those people to the private sector. There is a 

brain drain, because they cannot draw a second pension. So irrespective of 9/11, we are seeing that in IRS and other agencies, 

where we are losing lots of experienced white collar investigators. 

So that is an issue out there. 

But by and large, I think the FBI is dedicating lots more resources to terrorism. They have done it smartly and efficiently, particularly in the drug area. We are still going after white collar 

cases, in fact, harder, but I think long-term, we should look past 

9/11 and look at the demographic of the brain drain on all law enforcement agencies in the white collar area. 

Senator DEWINE. Mr. McNulty, Mr. Fitzgerald, what is your 

total—and then, I will move on—but what is your total number of 

assistant U.S. Attorneys? How does that compare? How has it 

changed in the last 2 years? 

Mr. MCNULTY. Well, I had substantial growth in the Eastern 

District largely as a result of the terrorism resources, but I have 

120 attorneys and probably another 30 or more Special Assistant 

United States Attorneys. And we have grown about 25 percent as 

an office in the last 2 years because of increased positions for terrorism prosecution and some gun positions and cyber-crime positions. 

Senator DEWINE. Mr. Fitzgerald? 

Mr. FITZGERALD. In Chicago, we had not had growth basically in 

about a decade. In the last year, we have grown by 11 assistants, 

I think, to about 149. We picked up nine assistants for terrorism 

and I think two for cyber-crime and an additional gun position. 

Senator DEWINE. All right; you both have described some of the 

benefits of the new PATRIOT Act. You have described how it has 

worked effectively. Could you describe for us any area that it has 

not worked or any area that needs to be improved? 

Mr. FITZGERALD. I think it needs just to be understood better by 

the public. So much of what people are angry about does not concern the PATRIOT Act or does not involve it. Sometimes, you hear 

about the expression of a tree falls in the woods, and no one hears 

it; with the PATRIOT Act, a tree has not fallen, but lots of people 

hear it loudly. And I mean that, that people legitimately have concerns about the PATRIOT Act, about parts of it that are simply not 

there, and I think I have been trying in Illinois to meet with community forums and educate people on what the act does and does 

not do, because there is a great misapprehension there. 

I think a lot of what people are concerned about, they should not 

be concerned about, but nevertheless, they are. We need to address 

that. 

Senator DEWINE. Mr. McNulty? 

Mr. MCNULTY. Nothing comes to mind that is a problem. I certainly agree strongly with Pat’s point about the disconnect between 

much of the rhetoric we hear and then what we are actually doing, 

39

and the use of the PATRIOT Act provisions, so many of the things 

that are talked about are not even within the scope of the PATRIOT Act. 

So, but nothing comes to mind as being a weakness or a problem 

that we have run into with the act. 

Senator DEWINE. Mr. Fitzgerald, you mean none of your assistants come to you and ever say they cannot understand why these 

Senators or Congressmen did not get this, and why they did not 

write this a little differently? That is kind of a little hard for me 

to believe that they—you know. I think I used to do that when I 

was a lowly county prosecutor, wonder why the stupid state legislature did not write the law differently, you know. I know I did that. 

Mr. FITZGERALD. They do come to me and say why do they not 

fix this law, but I do not think because it is such a patchwork quilt, 

people can figure out which law comes from the PATRIOT Act and 

which does not. So they say here is what ought to be fixed, or here 

is what we need, but they are not going back saying if you look at 

Section 3, such and such, in the PATRIOT Act, why did they not 

change this comma? 

There are some fixes that may be needed to some statutes that 

are modified by the PATRIOT Act that may need further modification, but they are not coming in and complaining about the PATRIOT Act as a problem. 

Senator DEWINE. So you do not have any advice for us, I guess? 

Mr. MCNULTY. On the PATRIOT Act or on terrorism laws? 

Senator DEWINE. You have the opportunity today to talk about 

anything you want to. 

Mr. FITZGERALD. I just think that we need to look at terrorism 

financing, because those cases are hard to prosecute in a way that 

money laundering is hard to prosecute, squared, because in money 

laundering cases, you need to prove that the person laundering the 

money knew that it was going to a specific crime such as drugs. 

In terrorism financing cases, when people move money overseas, 

then, that money is used for a violent act, you often not only have 

to prove that the person facilitating the movement of money knew 

about the crime committed, but you may or may not have to deal 

in court with the defenses of the person overseas, such as if they 

were a freedom fighter who thought that they were authorized by 

law to fight. There are many issues like that that make terrorism 

financing cases harder to prosecute than even money laundering, 

and that is because they make us prove that the person supported 

terrorism. 

It is hard to prosecute, under the current law, someone who 

sends money overseas just to support violence, without putting the 

terrorism label on it. There may be areas of conflict overseas where 

there is violence going on where our country may or may not take 

a position, but we should not have private citizens on our soil funding fighting, particularly since some of those fighters may turn out 

to be Al Qaeda fighters who may be fighting in a regional conflict 

today and be coming after us tomorrow. 

So I think there is a need to look at terrorism financing laws to 

see whether there ought to be a law against just supporting violence, not in a terrorism context, not having the terrorism penalties, but allowing us to stop people from funding violence from 

40

our soil as private citizens. That can lead to death overseas and 

can also lead to the further training of Al Qaeda. 

Chairman HATCH. Senator, your time is up. 

Senator DEWINE. Thank you very much. 

Chairman HATCH. Senator Kennedy? 

Senator KENNEDY. Thank you very much, Mr. Chairman. 

Thank you. I guess, Mr. Wray, you have spoken about the need 

to give law enforcement the necessary tools to prevent acts of terrorism. One measure that is clearly necessary in today’s America 

is the Undetectable Firearms Act. That act makes it illegal to make 

or possess a firearm that is not detectable by walk-through metal 

detectors or the type of x-ray machines commonly used at airports. 

As you know, the act is set to expire in December. 

To my knowledge, the administration has not taken any steps to 

see that this critical law is renewed. Tomorrow, I will introduce a 

bill to renew the Undetectable Firearms Act, make it permanent. 

Will the Justice Department support the bill? 

Mr. WRAY. Senator, I agree that the issue of weapons being undetected is an important one. I would be happy to review the legislation and get back to you on that. I am not familiar with the legislation as it now stands. 

Senator KENNEDY. Well, it is time-sensitive, so we would appreciate it. 

I join Senator Schumer—I know he has been the leader on these 

issues in the Senate, but I join him in sending the letters to the 

Department about the leak investigation, and I heard our Chairman speak on this issue earlier. 

As far as we can tell, Mr. Wray, you are the Presidential appointee directly supervising the career attorney in charge of this inquiry, Mr. John Dion, the chief of your counterespionage section. So 

can you tell us who is the highest official in the Department who 

is getting briefed on the progress of the inquiry or has any decision 

making power over it? 

Mr. WRAY. Senator, as you mentioned, John Dion— 

Senator KENNEDY. Dion? 

Mr. WRAY. Dion, right. I am sorry. 

Senator KENNEDY. No, you were right. 

The Chief of the Counterespionage Section, who is a 30-year veteran of the Department specializing in this area, is the one who is 

the head of the investigation and who has the day-to-day responsibility for it. He reports, in turn, to Bruce Schwartz, who is also a 

career prosecutor, a Deputy Assistant Attorney General in the 

Criminal Division, and together, they report to me as the head of 

the Criminal Division. And although I am a political appointee, I 

have spent the bulk of my career as a prosecutor in the system, 

both in this administration and in the U.S. Attorney’s office before 

this administration. 

Senator KENNEDY. So you are— 

Mr. WRAY. I am sorry? 

Senator KENNEDY. Go ahead. 

Mr. WRAY. And then, I, in turn keep the Attorney General apprised of the progress of the investigation. But the day-to-day responsibility for the investigation, the day-to-day management of 

the investigation, the decision making in the investigation, is done 

41

by the career prosecutors and agents who have the expertise in this 

area. 

Senator KENNEDY. So the Attorney General has not recused himself? 

Mr. WRAY. The Attorney General has said that he keeps all options open, but at this time, he has not recused himself. 

Senator KENNEDY. So what role is he playing? 

Mr. WRAY. As I said, he is kept apprised of the progress of the 

investigation, and he has communicated, in no uncertain terms, his 

commitment that this investigation be done thoroughly, fairly, professionally and impartially. 

Senator KENNEDY. So he is ultimately the one who will make the 

decision on whether to appoint a special prosecutor or not? 

Mr. WRAY. I believe that the law on special prosecutor, on special 

counsel, I think is the correct term, reserves that power specifically 

to the Attorney General under the regulations and the statute that 

applies. 

Senator KENNEDY. And he has not felt that it is necessary for 

him to recuse himself in this matter? 

Mr. WRAY. As I mentioned, the Attorney General has said specifically that he keeps all options open as the investigation progresses but that he, like I, has tremendous confidence in the career 

prosecutors and agents who are the people who have been doing 

these kinds of investigations for years. 

Senator KENNEDY. Well, we all have that confidence, and there 

is no reason not to have confidence in others that are making decisions. But that is not what we wanted to know; what the line of 

authority—let me just ask you, and then, I want to move into another subject. Are you the person at the Department, then, dealing 

with the White House Counsel or anyone else at the White House 

in the investigation procedures? 

Mr. WRAY. Do you mean generally or in the context of this particular investigation? 

Senator KENNEDY. With regard to this investigation. 

Mr. WRAY. The lawyers handling the case, the prosecutors handling the case, are the ones who interface with all of the folks with 

whom they interact in the course of the investigation. 

Senator KENNEDY. So they are the lead person for dealing with 

the White House Counsel would be Mr. Dion, then? 

Mr. WRAY. And Mr. Swartz. 

Senator KENNEDY. Those two would be the ones? 

Mr. WRAY. Right, they are the career prosecutors handling the 

investigation. 

Senator KENNEDY. Let me ask you, because the time—I am concerned about the Department’s commitment to address the abuses 

identified by the Inspector General, Glenn Fine, in his June 20, 

2003, report on the treatment of immigrants detained after 11. In 

your statement, Mr. Wray, you encourage all Americans to read the 

Website, lifeliberty.gov, to learn about, quote, ‘‘how the PATRIOT 

Act protects our Nation’s security or protects the personal liberties 

we so dearly cherish.’’ 

On that Website, the Justice Department has posted an article 

by writer Heather McDonald titled ‘‘Straight Talk on Homeland Security.’’ The posted article says the following about the IG’s report: 

42

‘‘Fine report, however measured in its language. It is ultimately as 

much a misrepresentation of the Government’s post-9/11 act as the 

shrillest press release from Amnesty International. It fails utterly 

to understand the terrifying actuality of 9/11. Fine’s cool and sensible recommendations read, frankly, like a joke in light of the circumstances at the time.’’ 

Do you agree or disagree with Ms. McDonald’s characterization 

of the IG’s report, and why in the world is this being posted on the 

Justice Department’s own Web, and does this violate the anti-lobbying law in terms of the PATRIOT Act? 

Mr. WRAY. Senator, I do not— 

Senator KENNEDY. Are we using Department of Justice money 

for this kind of activity, are we? 

Mr. WRAY. Senator, I do not administer the Website. I would 

say— 

Senator KENNEDY. First of all, do you agree or disagree with the 

characterizations? 

Mr. WRAY. What I believe is that Inspector General Glenn Fine 

is a career professional who, like others, has made constructive 

criticism of the Department’s efforts, and I believe that the Department has made a responsible effort to address those recommendations. I think it is important to note that, as the Inspector General 

himself recognized, all of the detainees in question were held legally. They were all in violation of the laws of this country, and 

they were held legally. And as the Inspector General has also recognized in another report of his, that illegal aliens, when bonded 

out as opposed to detained, abscond at an astonishingly high rate. 

And so, it is not surprising that the career agents and prosecutors 

working on the matters at the time in the immediate wake of September 11 felt it appropriate to seek detention, which again, was 

found fully lawful by the Inspector General. 

Senator KENNEDY. I am not going to debate the IG’s report, but 

why is this article posted on the Justice Department’s own 

Website? 

Mr. WRAY. I am sorry; as I said, Senator, I do not administer the 

Website. I know there is a lot of useful information on there. But 

I cannot speak to the particular decision to put that particular article on the Website. 

Senator KENNEDY. Well, just because my time is up, the IG’s report was a detailed and thoroughly substantiated report issued by 

one of the Department’s most respected attorneys. And yet, on the 

date the report was issued, the Department’s spokesman issued a 

statement declaring the Department made no apologies for any of 

its actions or policies. 

Mr. Chairman, my time has expired. 

Chairman HATCH. Thank you, Senator. 

We will turn to Senator Cornyn. 

Senator CORNYN. Thank you very much, Mr. Chairman. 

Thank you, gentlemen, for being here today. I think some of the 

questions that have come up with regard to the detention of immigrants here under our immigration laws have been raised by Senator Kennedy and others, and just to be clear, those are provisions 

of law that have nothing to do with the PATRIOT Act; is that correct, Mr. Wray? 

43

Mr. WRAY. Yes, Senator Cornyn, the provisions under which the 

individuals who are the subject of the Inspector General’s report 

were detained under the immigration laws and not under any provision to do with the PATRIOT Act. I appreciate your flagging that 

issue, because it goes to a subject that several members of the 

Committee mentioned in their opening statements, as did my colleagues and I, that there is a level of confusion in the public discourse about what is and is not part of the PATRIOT Act. The PATRIOT Act, for better or for worse, has become sort of a shorthand 

for every kind of complaint or criticism that everyone would have 

with respect to anything to do with terrorism. And I think Senator 

Feinstein acknowledged that very persuasively in her statement. 

Senator CORNYN. Well, I think we all recognize the difference between constructive criticism and Congress doing its important job 

of oversight and reserving the right to change our laws if, in fact, 

the laws we have passed do not apply or are not being administered in the way that we intended, perhaps, or we find other gaps 

that need to be filled. But I think there is an important difference 

between constructive criticism and shooting the messenger. 

As I pointed out in my statement, the PATRIOT Act, passed 

overwhelmingly by both branches of Congress; was signed by the 

President, endorsed by members on both sides of the aisle, as it 

should have been, in my opinion. But I am always amazed that 

where some refer to such phrases as extreme measures being taken 

by the Department of Justice, usually in the persona of John 

Ashcroft, in order to perhaps question his motives or perhaps even 

vilify him, to criticize the PATRIOT Act, and I worry not that people criticize but that they do so when perhaps misinformed of what 

the facts are, and, of course, that is the purpose, one of the purposes of this hearing here today. 

And just to make one point, another point, clear, has any provision of the PATRIOT Act, since Congress passed it some 2 years 

ago, been held in violation of the Constitution, Mr. McNulty, Mr. 

Fitzgerald? 

Mr. MCNULTY. I will defer to Mr. Wray. I am not aware of any, 

Senator. 

Senator CORNYN. Mr. Fitzgerald? 

Mr. FITZGERALD. No. 

Senator CORNYN. Mr. Wray? 

Mr. WRAY. No, Senator, none has. 

Senator CORNYN. And among the two provisions of the act that 

people cite the most often that cause them concerns, and here, 

again, I understand why concerns are expressed, but just to be 

clear, Section 213 that deals with delayed notification of search 

warrants, let me ask Mr. Fitzgerald, is it not true that that delayed 

notification of search warrants occurs with judicial review and approval; is that correct, sir? 

Mr. FITZGERALD. Yes, as it did before the PATRIOT Act, under 

existing legal authority. 

Senator CORNYN. So Mr. Ashcroft, sitting in his office in the Department of Justice, does not decide the issue sort of sneak-andpeek search warrants without some independent judicial officer, 

some judge who has been confirmed by the United States Senate 

after nomination by the President has had a chance to review it 

44

and determine that good cause exists for issuance of a delayed notification; is that correct, sir? 

Mr. FITZGERALD. That is exactly right. 

Senator CORNYN. And likewise, under Section 215, which authorizes searches for business records and other items under the Foreign Intelligence Surveillance Act, Mr. McNulty, is it not the case 

that, indeed, before those searches take place that Article III 

judges on the Foreign Intelligence Surveillance Court, in fact, have 

to review the application and approve it? 

Mr. MCNULTY. That is right. 

Senator CORNYN. I will tell you one thing that does concern me 

and that has sort of come up, and I know a couple of times, we 

have talked about immigration. Mr. McNulty, you have discussed 

it, and it continues to be a concern, and just most recently, Senator 

Craig, I believe, in his Committee on Aging this morning reviewed 

a recent General Accounting Office report that has to do with the 

issuance of Social Security numbers to non-citizens. And I believe 

the figure was, in 2002, some 12.4 million Social Security numbers 

were issued; 1.3 million of those were issued to non-citizens, an 

alarming percentage. 

And I believe, Mr. McNulty, you talked about one of the concerns 

in the efforts to fight the war on terror that our law enforcement 

officials, including your office, is focusing on is ID document fraud. 

Could you please just address whether you would be similarly concerned with the issuance of Social Security numbers to non-citizens? 

Mr. MCNULTY. Well, I do not have a position on that policy 

change, but I certainly am concerned about anything that would 

undermine the integrity of identification systems generally speaking, and I do not know if that would actually cause that to happen. 

We are seeing just the widest range of identity document fraud, of 

just from birth certificates to Social Security cards, driver’s licenses, you name it. Often, the vendors provide all of those documents fraudulently for various prices. 

And we also look at Social Security fraud and the use of numbers 

either that have been fraudulently established or have been stolen 

from someone else. We look at that very aggressively. We look at 

those individuals who give those numbers to obtain commercial 

driver’s licenses or FAA pilot’s licenses and then try to trace back 

who those individuals are to prosecute them for that fraud. 

So it is a very widespread and significant problem, and I am not 

really in a position to comment on that particular policy change 

that I know is being debated in many places in the country. 

Senator CORNYN. Well, just as you are concerned about those 

who fraudulently produce fake identification for those who are not 

entitled to receive that as an official document, would you be concerned about the U.S. Government, including the Social Security 

Administration, issuing Social Security numbers and cards to those 

who are not legally entitled to have those? 

Mr. MCNULTY. Well, again, our primary concern from the law enforcement is to make sure that someone is who he or she says they 

are. It is the question of matching up the true identity with the 

number or document, whatever it might be. That is more of the 

focus we have from a law enforcement perspective rather than who 

45

actually is the possessor of that number. That is a different question for us. 

Senator CORNYN. I understand your very carefully-stated answer, 

and I am not trying to get you in trouble with your superiors or 

others. But what I am merely trying to point out is that false identification, whether it is sold by someone who is in the business of 

illegally manufacturing those documents, perhaps, to those who 

would threaten us and perhaps kill our citizens, that, I believe, is 

as much a problem as it is when the Federal Government, perhaps 

through neglect, oversight, or otherwise, issues a Government document which is the primary identification card for American citizens to people who are not entitled to them. 

And I would say that, you know, the more I hear about how 

much of our documents are abused, how much we do not seem to 

have a good handle on the number of people who, frankly, are here 

in this country illegally and who are under final orders of deportation, some 300,000 at last count, when we do not know where they 

are, or whether it is the fact that perhaps 8 to 10 million people 

are living illegally in this country now, and we simply do not know 

for sure where they are and their purpose for being here just adds 

to my concerns about what we need to do in terms of comprehensive immigration reform. 

Because I think until we get a handle on that, we cannot truly 

say we have done what we need to do in terms of homeland security. 

Let me just—I know my time is just— 

Chairman HATCH. Your time is up. 

Senator CORNYN. It is up? 

Chairman HATCH. Yes. 

Senator CORNYN. Thank you, Chairman. 

Chairman HATCH. Senator Feinstein? 

Senator FEINSTEIN. Thank you very much, Mr. Chairman. I may 

have misspoken in my earlier comments. And for the record, I just 

wanted to correct them. I want to be clear that there is not a sunset on Section 213, which is the delayed notification provision, also 

known as the sneak and peek. In addition, I do not know how it 

has been used in every instance, but I do not believe that it would 

have been used against libraries. It is obviously Section 215 which 

the libraries are concerned about, because it permits the government to seize computers and other tangible things. It is my understanding from Mr. Ashcroft’s public statement that that section has 

never been used against libraries. 

Does anyone have a different view of this that is sitting here? 

Mr. WRAY. No, Senator Feinstein, you are correct. 

Senator FEINSTEIN. Okay; thank you. I wanted to correct that. 

Now, I want to just confine my questions to specifics of the bill, 

if I could, or of the act. Section 412 of the act states that if an alien 

has been detained solely under this 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 additional periods of up to 6 months. 

Now, according to a booklet put out by the Justice Department 

called the ‘‘USA PATRIOT Act: Myth versus Reality,’’ to date, the 

Attorney General has not used Section 412 but believes it should 

46

be retained for use in, quote ‘‘appropriate situations.’’ Is that true? 

What would the appropriate situations be? And if it has not been 

used, should we keep it in the act? Because I think this is a cause 

of some of the concern. 

Mr. WRAY OR MR. Fitzgerald, whoever wants to take it? 

Mr. FITZGERALD. Sure; thank you, Senator. 

First, to my understanding, it is correct that it has not been used 

to date, and obviously, but I can tell you that one of the most vexing problems from the field is how we deal with terrorist immigrants. Going back 10 years to the first World Trade Center bomber, the mastermind, Ramsey Yousef, came off of a plane at John 

F. Kennedy Airport. My recollection was that he was one of 30 illegal aliens getting off of that flight. My understanding is that we 

have the capacity to only house a couple of people from that flight. 

He came off. He had a fake Iraqi passport with a loosely-fitting 

photograph in it. He was wearing a silk suit, puffy shirt, and slippers, and he was told, basically you are paroled into the country. 

You are admitted here because he claimed he needed political asylum because he feared persecution by Saddam Hussein. 

He is then given a document that says, basically, we trust you 

to show up at the Federal Building in 6 months for a hearing. And 

he comes in; he was represented pro bono by a very prominent New 

York attorney thinking that they were vindicating civil liberties. 

And he blew up the World Trade Center, and he left. 

The concern I always have with immigration is we have the person who is sitting at the borders making these decisions that if 

they keep everyone out, they are changing the fabric of our country. If they let someone in who blows something up, it is on their 

head. If a person comes in that we do not have a prosecutable case, 

and he or she is stopped at the border, at an airport, and perhaps 

we have very good intelligence information that we cannot use—

maybe it is a very sensitive technique; maybe revealing it would 

burn a source; maybe it comes from a country that says you cannot 

use this information in court. 

Yet, they are sitting there at the border. We do not want to parole them in to let them walk around the country, and it may well 

be that they are coming from a country that we would return them 

to that would refuse to take them precisely because they are so 

dangerous. So we could have a ticking time bomb landing on our 

shores whom our immigration policies will not let us expel; our National security policy will not let us let them in. In that circumstance, I do not know why, you know, we need to have the Attorney General have the ability to say I will invoke that provision 

if necessary. 

Senator FEINSTEIN. Thank you. I want to move on, because I 

think you have answered it, really, quite adequately. 

The PATRIOT Act also changed the definitions of pen registers 

and trap and trace devices to include devices that track dialing, 

routing, addressing or signalling information. And this change allows the tracking of email and Internet usage rather than just 

phone calls. The act also requires that pen registers and trap and 

trace devices not capture the contents of any communication. How 

extensively have you used pen registers and trap and trace devices 

47

to track email and Internet use? And how does DOJ ensure that 

these devices do not capture the contents of any communication? 

Mr. WRAY. Senator Feinstein, you are obviously correct that the 

provision specifically goes out of its way to instruct the folks on the 

front lines to avoid the collection of content. The provision has been 

used in the investigation, for example, in the murder of Wall Street 

Journal reporter Daniel Pearl. It has also been used in a number 

of cases involving terrorist co-conspirators. One interesting non-terrorism case in which it was very useful was a case in which a man 

had lured a 13-year-old girl from her home and then sexually 

abused her in his home in Herndon, Virginia. He had emailed an 

obscene picture of his victim to another person in another state, 

and through the use of this technique, it ultimately led to the rescue of the child from the individual’s home. He has subsequently 

been sentenced to 19 years in prison. 

As far as the efforts that we take to ensure, as you mentioned, 

that content not be collected, my former boss, Larry Thompson, the 

former Deputy Attorney General, issued a memorandum a little 

while back that was very explicit and went into detail instructing 

prosecutors in the field to minimize the possible collection of content; to refrain from using any content that was inadvertently collected; and to coordinate with Main Justice to ensure that we did 

not have people using it in an inconsistent or unintentionally irresponsible manner. 

Senator FEINSTEIN. To help stop terrorism by disrupting terrorist 

financial networks, the act also includes a title, namely, Title III, 

which focuses on money laundering, and it provides for increased 

information sharing, which was a real concern that we had, because of the stovepipes that existed. The provisions in this title 

would allow suspicious activity reports received by Treasury to be 

shared with intelligence agencies, and also authorize the sharing of 

surveillance information between law enforcement and intelligence 

agencies. 

I am really very concerned about this. With Al-Hazmi and AlMidhar, I think the absence of that ability to share information resulted in them not being picked up before 9/11. So anything you 

could tell us about how suspicious activity reports are being shared 

with the FBI and whether this has actually aided FBI investigations would be useful and how it is being shared by the FBI with 

the rest of the intelligence community. 

Mr. MCNULTY. I could speak, Senator, to the review of suspicious 

activity reports as an initiative within my office and other offices, 

I am sure. And it will not go directly to the heart of the sharing 

with FBI, but it is connected to that. 

We have begun to very actively review those reports. Previously, 

they did not really get reviewed simply because of resources. There 

were so many being filed, but there were so few people in the position to be able to review. And now, we have just made a point of 

it to review them throughout the Eastern District of Virginia and 

to look at opportunities to either, because of the leads that we can 

see from the reports that would lead us to questions about large 

sums of cash, to follow up and to use other authorities like civil forfeiture authorities to deal with that. 

48

That effort to review those reports is done in cooperation with 

the FBI, and the FBI field offices have agents working beside IRS 

agents and Assistant United States Attorneys in the review, so 

that information can be shared, and those leads, then, will get fed 

into the counterterrorism or the joint terrorism task forces and the 

counterintelligence agents. 

Chairman HATCH. Senator, your time is up. 

Senator FEINSTEIN. Could Mr. Fitzgerald just quickly—quickly— 

Chairman HATCH. Sure. 

Senator FEINSTEIN. —respond? 

Chairman HATCH. Sure. 

Mr. FITZGERALD. I cannot answer with the level of specificity you 

would like, but I can tell you that we formed recently, about a year 

ago, a money laundering asset forfeiture section where I put one 

of my top lawyers in charge of focusing on money and the trail and 

gathering information. We work with Customs now, ICE, in that 

area. We work with the Bureau. We work with DEA. We focus on 

bulk cash smuggling, which is also a provision that was in the PATRIOT Act, and we just brought aboard a retired IRS investigator 

to work as a financial analyst, and we are having them work together with a former terrorism expert who is now on staff. 

As to the specific SAR sharing, I cannot give you the details. I 

could try to find that out, but we are definitely understanding that 

the movement of money and the laundering of money is key to this 

battle, and getting all the people together under sort of one program is part of that, and she has been sort of crafting a structure. 

Chairman HATCH. Thank you. 

Senator Kyl? 

Senator KYL. Thank you very much. I was intrigued at a press 

conference last week, the Attorney General discussed the plea 

agreements that were reached with the members of the Portland 

terrorist cell that received quite a bit of publicity, and specifically, 

he mentioned the PATRIOT Act as assisting in the shutting down 

of that cell. 

I suspect—Mr. Wray, this question is for you—but can you describe how that worked, how the PATRIOT Act assisted specifically 

in that particular case? 

Mr. WRAY. Thank you, Senator Kyl. I would be happy to, because 

I think it is a true success story, and it is precisely the sort of victory in the field that I think illustrates the use of the Act. 

One way in which it assisted is the way in which we have already heard so much about in a more general sense, which is the 

information sharing provisions. The information sharing between 

law enforcement and intelligence that the Act provided in that particular investigation allowed a really unprecedented level of coordination between the law enforcement criminal investigators and a 

parallel intelligence investigation. 

One of the things that the PATRIOT Act helped us do, for example, was find and arrest one of the defendants, Ahmed Bilal, who 

was a fugitive. It also helped us to determine when was the precisely correct moment to take down the criminal investigation—

that is, when to go overt, as we in the field tend to call it. One of 

the ways we were able to calibrate that was by monitoring the ongoing intelligence investigation, which we could now do. We did not 

49

have the wall that Mr. Fitzgerald described as existing before the 

PATRIOT Act. So that was of tremendous value. 

In addition, Section 220 of the PATRIOT Act, a different provision, which provides for nationwide search warrants of ISPs, or 

Internet service providers, was useful in that particular case because the Portland judge, who was the judge most familiar with 

the case, was able to issue the search warrants for the defendants’ 

email accounts from providers in other districts, which dramatically sped up the investigation and reduced all sorts of unnecessary 

burdens on other prosecutors, agents and courts. 

The last way is the way to which I alluded briefly in my opening 

remarks, which is that one of the defendants, in a conversation 

with an undercover FBI informant, complained that he was not 

getting the financial support he was looking for, because the PATRIOT Act was chilling people’s willingness to send his organization money. 

So for all of those reasons, we think the PATRIOT Act was very 

useful in that particular investigation. 

Senator KYL. Thank you. Is that the fellow—he did not refer to 

the PATRIOT Act. He just said that law that Bush wrote. Is that 

the quotation that I have seen? 

Mr. WRAY. That is right. His name is Jeffrey Battle, and he complained about that law that Bush wrote, which he said prevented 

people from giving him the support that he needed. 

Senator KYL. Right; this was in a phone call, I guess, that was 

picked up between he and one of his cohorts; is that correct? 

Mr. WRAY. It was with an FBI informant. 

Senator KYL. Yes; well, that was good news. 

Now, did you mention—was it Section 220 that you just referred 

to or 219 on the nationwide search? 

Mr. WRAY. In this particular case, Section 220— 

Senator KYL. Okay. 

Mr. WRAY. —the one for— 

Senator KYL. Okay; well, I wanted to also ask you about Section 

219, which permits the issuance of nationwide search warrants in 

these terrorist investigations, and I wondered how you could describe the benefit to the issuance of a nationwide search warrant 

as opposed to going to the District judges where the property is located. 

Mr. WRAY. In general, having a multidistrict criminal investigation, as many, maybe even most, terrorist investigations are, will 

require the execution of search warrants in districts in a number 

of locations. And in the pre-PATRIOT Act environment, it is not to 

say that we could not get search warrants, but in effect, you could 

have a situation where an investigation that was primarily grounded, for example, in Mr. McNulty’s district, might require the execution of a search warrant in Mr. Fitzgerald’s district. In the pre-PATRIOT Act environment, pre-Section 219, Mr. McNulty would have 

to have one of his lawyers hunt down somebody in Mr. Fitzgerald’s 

office, get him up to speed on what the investigation was about, 

find an agent there unless the agent working in Mr. McNulty’s district was going to fly all the way out to Chicago to do it, then go 

find a magistrate judge in Chicago, walk through the whole process 

with that judge, so you would have sort of just those two districts. 

50

You would have twice as many prosecutors, twice as many agents, 

twice as many judges all to get a search warrant that, but for geography, could easily have been done out of the one district responsible for the matter. And so, Section 219 has been a tremendous 

help in that regard. 

Senator KYL. Mr. Chairman, I just want to make an observation. 

I think of Paul Charleton, who I suspect all three of you know, the 

U.S. Attorney for Arizona, who has been before this Committee before, and I happen to know Mr. McNulty, and I have been very impressed with Mr. Fitzgerald. And it just strikes me that following 

on some of Senator Cornyn’s comments that those who attempt to 

denigrate the PATRIOT Act and sometimes personalize it to Attorney General Ashcroft really need to be thinking about the service 

that these three gentlemen and people like the U.S. Attorney in Arizona, Paul Charleton, have provided, to their country in aid of the 

protection of our freedoms and helping to provide our safety. 

I think we owe a debt of gratitude to these people and all of the 

folks that they work with for assiduously adhering to the law, upholding the rule of law, but helping us to maintain our freedom by 

going after truly bad people. And these sometimes rather flippant 

accusations and expressed concerns about the law that we have 

passed here almost unanimously and sometimes seemingly derogatory references to the Attorney General I think do not do justice 

to the hundreds and hundreds of people who work for or with the 

Attorney General who do their jobs every day, who serve the public 

with great distinction, and I am pleased that these three gentlemen 

could be before us today, because I think it puts a face to the people who are doing this job for us, and I want to express my appreciation to each of you and ask you to please pass that sentiment 

on, because I think we all share that sentiment here, to those who 

work with you, because sometimes, it seems kind of lonely. You 

seem like you are getting beat up. It is not your fault. You are trying to do your job, and you are doing it for all of us. 

And I would like to have you convey that to your colleagues. 

Thank you, Mr. Chairman. 

Chairman HATCH. I second those remarks. 

Senator Feingold? 

Senator FEINGOLD. Mr. Chairman, first, I would like to make one 

clarification for the record. In his written testimony, Mr. Wray implied that this Committee passed the PATRIOT Act. There were, 

of course, discussions between the administration and some members of this Committee, especially the Chairman and the ranking 

member, but this Committee did not mark up and pass the legislation. The bill went straight to the floor only a few weeks after 

being sent up to us. 

And I would just quickly respond a bit to what Senator Kyl just 

said, first agreeing with regard to my tremendous appreciation for 

your service to our country and the fact that you are working on 

the top priority, which is to stop people from committing terrorist 

acts against Americans. 

But I do have to say, Mr. Chairman, that the flippant remarks 

did not begin with those criticizing the USA PATRIOT Act. It 

began with remarks of people like the Attorney General suggesting 

that anyone who questioned the act was somehow aiding the terVerDate 0ct 09 2002 14:29 Mar 01, 2005 Jkt 093622 PO 00000 Frm 00054 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\93622.TXT SJUD4 PsN: CMORC
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rorists. That is what started this kind of reaction in this country, 

and frankly, generated fear. 

My goal here is to take this down a few notches. I am very struck 

by Mr. Wray’s answer to the question: what aspects of the USA 

PATRIOT Act have been helpful? You cited three things: the information sharing, the Section 220 ISPs and the support for financial 

organizations, none of which have been at the core of the concerns 

that I have raised or groups around the country have raised. They 

may be down the list. 

But what we have here is sort of two ships passing in the night, 

people suggesting concerns about the bill, and then, the reaction is, 

well, you know, those parts of the bill are not the ones that have 

really helped. And it strikes me that there really could be common 

ground, as has been suggested by two members of this Committee 

that I have joined with, Senator Craig and Senator Durbin, about 

fixing the things that are the most troubling to people. So somehow, we have got to get away from this USA PATRIOT Act is all 

good, or it is all bad, and get down to the facts and the actual situations where we can fix the bill, in my view. Having been the Senator that voted against it, I believe it is fixable, and it needs to be 

done. 

Mr. Fitzgerald, in response to a question from Senator Hatch, 

you said it can be more difficult under the PATRIOT Act to get access to library records or credit card records. If you suspected credit 

card fraud, you said you can pull out a subpoena from your drawer. 

You do not need to go to a court. But I assume that you are referring to a grand jury subpoena, correct? 

Mr. FITZGERALD. Yes. 

Senator FEINGOLD. And the recipient in that case, of course, that 

means the recipient has the ability to challenge that subpoena before a judge and is not prevented from disclosing to others that he 

or she has received a subpoena, whereas, I think you would agree, 

under Section 215, a recipient is prohibited from even disclosing 

that he or she has received it, and a judge approves the subpoena 

request because a crime has not been committed. So no grand jury 

would have been convened. 

Section 215 is used in FISA investigations, not criminal investigations. Was my statement there correct? 

Mr. FITZGERALD. Yes, I would just qualify it slightly in that you 

can, in certain circumstances, in the right to financial privacy provision, tell some banks not to disclose the existence of a subpoena. 

So if you are looking for business records for a bank in the grand 

jury context, you can serve a subpoena, where, to my understanding, for certain offenses, the bank cannot disclose the existence of the subpoena to protect the investigation. 

Senator FEINGOLD. But insofar as libraries are concerned, my 

statement was correct. 

Mr. FITZGERALD. Yes. 

Senator FEINGOLD. Mr. Wray, I would like to continue on Section 

215 of the PATRIOT Act. Your written testimony discussed this 

provision in the context of library records, but, of course, it also applies to an FBI request for any records or tangible things, not just 

library records. It could include a request for medical records from 

doctors and hospitals, purchasing records from credit card compaVerDate 0ct 09 2002 14:29 Mar 01, 2005 Jkt 093622 PO 00000 Frm 00055 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\93622.TXT SJUD4 PsN: CMORC
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nies or even membership lists from the NRA, the ACLU, social 

clubs or charitable organizations if the FBI alleged that the information was sought in connection with a terrorist investigation; is 

that not right? That is all that has to be done by the FBI? 

Mr. WRAY. Under Section 215, in addition to all of the internal 

approval requirements, there would have to be a certification to the 

FISA judge either that the information requested was to obtain foreign intelligence information not concerning a United States person 

or to protect against international terrorism or clandestine intelligence activities. 

In addition, the statute explicitly, although one could argue that 

this was not necessary, but it went an additional step and preserves First Amendment rights by expressly providing that the FBI 

cannot conduct investigations of United States persons solely on 

the basis of activities protected by the First Amendment. 

Senator FEINGOLD. Solely on the basis of activities protected by 

the First Amendment. 

Mr. WRAY. That is the language of the— 

Senator FEINGOLD. Other than that, my statement of what kinds 

of things are potentially obtainable was correct, was it not? 

Mr. WRAY. It does cover broad categories of documents, and that 

was one of the advantages of the provision. 

Senator FEINGOLD. The administration recently disclosed, and 

you stated again in your testimony today, that Section 215 has not 

been used. But the concern that I have is that the provision, as 

currently written, presents the potential for being used in inappropriate ways. If the provision has not yet been used, what objection 

does the administration have to modifying the provision, as some 

of my colleagues and I have proposed, to protect the privacy and 

liberty of law-abiding Americans? 

And, for example, where is the harm in requiring the FBI to put 

a little more work in its application for a subpoena to the court or 

to put it in prior—that they would have had to put in prior to the 

PATRIOT Act, especially where the benefit is, in my view, greater 

judicial oversight to protect against potential fishing expeditions 

and also, of course, to reassure the public that the privacy of lawabiding citizens is not going to be violated? 

The administration says it has no interest in the reading habits 

or other aspects of the lives of ordinary Americans. If that is so, 

why can we not fix this provision, which you have not even used, 

in the modest way that we have suggested? 

Mr. WRAY. Senator, I believe that the provision in question already requires FBI agents to go further than they would, for example, in coming to Mr. McNulty or Mr. Fitzgerald or myself for a 

grand jury subpoena, so there is a heightened level of obligation on 

the part of the agents in terms of the paperwork and the showing 

that would have to be made internally and also to satisfy a judge 

than would have to happen in a grand jury context. 

The fact that the provision has not been used, I would submit, 

is a reflection—and this is true of a number of provisions—that we 

try to use these provisions sparingly, only in those instances where 

we feel that that is the only tool that we can use. But it is not hard 

for me to come up with, for example, based on the kinds of experiVerDate 0ct 09 2002 14:29 Mar 01, 2005 Jkt 093622 PO 00000 Frm 00056 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\93622.TXT SJUD4 PsN: CMORC
53

ences we go through every day, examples where it would be extremely valuable to us to have this provision kept intact. 

For example, you could easily have—and this is a hypothetical 

based on the kinds of things that come up on a day-to-day basis 

at the FBI and the Justice Department and CIA and other places—

you could have a foreign intelligence service that has a raid in a 

safe house overseas somewhere and, in the course of that raid, 

comes up with records that, for example, that might be rental car 

records or job applications or tenancy documents of some sort. It 

might even be a library book, for example, from the D.C. Library. 

And it is not unusual for foreign intelligence services in situations like that to not want to declassify the information, not want, 

in sharing the information with our Government, to let us subject 

that information to the criminal investigation process so— 

Senator FEINGOLD. What about the modifications that we have 

suggested to this Section 215 in my bill and the Craig-Durbin bill 

would prevent you from getting at that? I do not think there is any 

way in which the requirement of—some showing of relevance is basically what we are asking for. Obviously, in that scenario, you 

would have that. So I am asking again: what is it about the modifications that we have proposed that will not satisfy that kind of 

scenario, your concerns? That is what we need to get at here, not 

just have people say that, you know, the provision is all bad or all 

good, but how do we address your legitimate concerns while, at the 

same time, requiring what is, in fact, not required right now? 

You have suggested that somehow, the judge has to review this 

and find some kind of a showing. The fact is that there is no showing required. All you have to do is assert that it is sought in connection with, and the judge is basically required to sign off. It is 

not a discretionary situation. 

Mr. WRAY. I am sorry; I would be happy to take a look at the 

language that you have proposed, and I am sure the Department 

would be happy to get back to you on that. I do think it is worth 

noting that no one has identified any instance in which the provision has been abused, and, of course, we have already talked about 

the fact that it has not been used. 

Senator FEINGOLD. It has not been used. 

Mr. WRAY. That is right. Nor am I aware of any instance in 

which anyone has complained of abuse, for example, of a grand 

jury subpoena for the same sorts of records. And, of course, the 

showing there is far less than is required to— 

Senator FEINGOLD. Well, we have already talked about the difference, and you have admitted the difference, between a grand 

jury situation—at least Mr. Fitzgerald did—and the lack of protections for the person in the other context, where they cannot discuss 

it. 

Chairman HATCH. Your time is up. 

Senator Schumer? 

Senator SCHUMER. Thank you, Mr. Chairman, and I thank the 

witnesses for their patience. 

As you know, Mr. Wray, I have told you in advance that I would 

be asking you questions along this level, and I know that Senator 

Kennedy touched on it a little bit, and I appreciate your answering 

them rather than just saying we do not know anything. 

54

Now, just to reiterate: Senator Ashcroft—Attorney General 

Ashcroft has not recused himself; is that correct? 

Mr. WRAY. I believe the Attorney General has said explicitly that 

he has kept open all options and, as the investigation develops, will 

continue to keep all options open. 

Senator SCHUMER. But as of now has not recused himself. 

Mr. WRAY. I am not aware of any decision to recuse himself. 

Senator SCHUMER. Okay; now, you mentioned previously that he 

is being kept apprised of the role of the investigation, I think; those 

were your words. Who is apprising him of this? 

Mr. WRAY. As the head of the Criminal Division, I am responsible for keeping both the Attorney General and the Deputy Attorney General, who I hope will soon be joining us from your home 

state— 

Senator SCHUMER. He is a good man. 

Mr. WRAY. —Mr. Comey, with whom I have had great experience, as have my colleagues on this panel. I look forward to working with him. But it is my responsibility to, on major investigations, of which this is, of course, one, to keep the leadership informed. 

Senator SCHUMER. Right; so, first, you brief the Attorney General 

on what is happening. Are there others who talk to him as well? 

Mr. WRAY. I certainly could not speak to everyone who speaks 

with the Attorney General. However, I am responsible for the division which is handling the investigation, and I report directly to 

the Attorney General. 

Senator SCHUMER. Has Mr. Dion spoken, to your knowledge, at 

all to the Attorney General about this, either at his request or the 

Attorney General’s request? 

Mr. WRAY. I am not aware of any such conversations. Mr. Dion 

has been told by me, and I have relayed to him the message from 

the Attorney General, that this investigation is to be conducted 

fairly, impartially, aggressively, and professionally, consistent with 

all of the expertise and experience and track record that Mr. Dion 

has demonstrated over his career. 

Senator SCHUMER. I would just simply like to know, and you can 

respond in writing, which is the custom of this Committee. I would 

ask you to tell me who has the Attorney General talked to about 

this investigation other than yourself, particularly Mr. Dion, anyone else engaged in the investigation. Could you get me that in 

writing, please? 

Mr. WRAY. Well, I would be happy to take a look at your question. I want to be careful to maintain the confidentiality of deliberations within the Department, which is consistent with its practice. 

Senator SCHUMER. I am not asking for the details. I am asking 

just for the structure, which I think we are perfectly entitled to do. 

Mr. WRAY. I would be happy to walk you through the structure— 

Senator SCHUMER. Right. 

Mr. WRAY. —again, which is that Mr. Dion is the Chief of the 

Counterespionage— 

Senator SCHUMER. I understand. 

Mr. WRAY. —Section. He reports to Deputy Assistant Attorney 

General Bruce Swartz— 

55

Senator SCHUMER. Swartz. 

Mr. WRAY. —who is the deputy over that section and a few others. Both of them, then, report to me. 

Senator SCHUMER. Right. 

Mr. WRAY. And then, I report to the Deputy Attorney General 

and the Attorney General. 

Senator SCHUMER. Let me ask you this: you keep the Attorney 

General apprised. Can you give us some—how detailed is it? How 

often does it occur? 

Mr. WRAY. I do not have a really good way of quantifying that 

for you. 

Senator SCHUMER. Do you talk to him every day about it? Every 

week? 

Mr. WRAY. Certainly not every day. 

Senator SCHUMER. Every week? 

Mr. WRAY. Well, the investigation has only been Pending for a 

little while, but I would say again that I think he is kept apprised 

to the level consistent with other major investigations, and again— 

Senator SCHUMER. Could you tell us what that means? Does that 

mean that he knows the names of witnesses being interrogated? 

How many witnesses are being interrogated? Whether there is 

grand jury? Could you answer those? 

Mr. WRAY. I could not answer those. 

Senator SCHUMER. Why not? 

Mr. WRAY. I could only tell you that I think the Attorney General 

is apprised of the progress of the investigation sufficiently to fulfill 

his responsibilities. I would not want to speculate as to what is or 

is not in the Attorney General’s head. 

Senator SCHUMER. No, I did not ask that. You are the one briefing him. Do you mention specific names of witnesses who might be 

interviewed? Have you ever done that? 

Mr. WRAY. Again, I think it would be better for me not to discuss 

the deliberations of the Department. I can say that this investigation is being conducted fairly, professionally, impartially, and aggressively, consistent with the manner in which I think you would 

expect and I think others would expect. 

Senator SCHUMER. Mr. Wray, this is not a typical investigation, 

for the obvious reasons that we all know, and I am not asking you 

to tell me who. You should certainly not tell me, even if I should 

ask. But when I ask you does he get specific names of who is being 

interviewed and details of what those interviews brought about, I 

think we are entitled to that answer. In fact, the American people 

are entitled to that answer. 

Can you again—I am going to ask you once again: can you tell 

me if, at any time in your conversations with him, you have given 

him names of people who have been interviewed? 

Mr. WRAY. I think it is fair to say that in the course of my discussions, I have given him the levels of detail that would be consistent with any briefing on a major investigation, and that would, 

I believe, include names of individuals. 

Senator SCHUMER. Okay; thank you. I appreciate that. And how 

about details or general thrust, not specific details, of what they 

say? 

Mr. WRAY. Well, again, I think consistent— 

56

Senator SCHUMER. I am not familiar with how an associate Attorney General for the Criminal Division briefs an Attorney General on these. I am not saying it is the same or different as any 

others. So, just, what level does he know? He knows the names of 

some people. Does he know that there have more than one interview? It went for a long period of time? Does he know whether they 

were cooperative? Whether this one looks like a good lead, and this 

one does not, those types of things? 

Mr. WRAY. Again, I am not trying to be difficult, but I think it 

is hard for me to speak to what the Attorney General does and 

does not know. 

Senator SCHUMER. I did not ask that. I asked you what you tell 

him. 

Mr. WRAY. When I brief the Attorney General, I brief him with 

the level of sufficient detail for him to understand meaningfully 

what is going on in the investigation. 

Senator SCHUMER. Okay; so, he knows the detail—he knows, not 

the details, but he knows, to quote you, meaningfully what is going 

on in the investigation? 

Mr. WRAY. I think one way to think of this would be— 

Senator SCHUMER. But that is correct, right? 

Mr. WRAY. —I am sorry. In the chain of command, with each ascending level within the Justice Department’s hierarchy, there is a 

gradually descending level of detail, so that you have Mr. Dion 

working on the investigation— 

Senator SCHUMER. Sure. 

Mr. WRAY. The level of command of mastery of the investigation, 

as it comes up from him to the next person, then, to me and then 

on up to the Attorney General, gradually declines with time, as one 

would expect. 

Senator SCHUMER. Okay, well, I appreciate your letting me know 

that, and so, there is meaningful detail and names, and that does 

answer my basic question there. 

I have another question, and this is do you know about—many 

of us have been concerned with some of the delays that they said, 

well, we are going to get some documents, et cetera, and then, got 

them later; do you know, were there communications between the 

White House and the Department of Justice about the leak before 

the official evidence preservation request was made? 

Mr. WRAY. Senator, I— 

Senator SCHUMER. Are you aware of any? 

Mr. WRAY. I want to be careful here. It is very important to me, 

as I know it is to you, that this investigation be handled professionally and consistent with—as they say, by the books. And one 

of the ways in which we, as career prosecutors, handle investigations by the books is not to discuss the details, which is one of the 

things that you are asking about, of an active, ongoing investigation. 

I can assure you that it has been made painfully clear to everyone involved that no punches are to be pulled in this investigation. 

Anybody who thinks that we are going to be pulling any punches 

in this investigation does not know the lawyers and the agents 

working on this investigation very well. 

57

Senator SCHUMER. Okay; let me ask you, though; I am not asking, again, for, from what I have understood, it is sort of bad practice; it is not what a good prosecutor would do to sort of convey 

ahead of time we are going to ask for these documents and then 

ask for them. Usually, they sort of try to go wshht! and try to get 

everything that they can. I am not a prosecutor, so I have had to 

ask other people. I have never been. 

And so, if the people who potentially were investigated knew 

ahead of time that their documents would be asked for, again, that 

is not professional practice as I understand it, certainly not good 

prosecutorial practice, and I think it is legitimate for me to ask: 

can you answer that question? Did any of the witnesses, potential 

witnesses or people who have become witnesses since, know that 

they were going to be asked for documents before they actually 

were? 

Mr. WRAY. Again, I think I have to respectfully submit that the 

investigation is being handled, to my knowledge, in every respect 

professionally— 

Senator SCHUMER. That does not answer my question. 

Mr. WRAY. I would like to finish responding if I might. The prosecutors and agents working on this investigation have been handling it—in my estimation, based on my experience both as a prosecutor and as a defense attorney—fully consistently with all good 

judgment, expertise, professionalism, integrity and so forth. I am 

not aware of any instance in which things have been handled otherwise, and I believe that the American people can have full confidence that they are handling it in that fashion. I know I do. 

Chairman HATCH. Senator, your time is up. 

Senator SCHUMER. I would just make one comment, Mr. Chairman. 

Chairman HATCH. Well— 

Senator SCHUMER. First, I would ask unanimous consent that 

Mr. Wray be allowed to respond to some questions in writing. 

Chairman HATCH. Well, of course. We will keep the record open. 

Senator SCHUMER. And second, I would just say, at least to me, 

the fact that the Attorney General, who is, again, a close associate 

of the President’s in many ways, knows the details or knows some 

of the people who have been called and the general thrust of what 

has been asked. I find that troubling, and right here and now, you 

can convey it to him—I will—I would urge that the Attorney General recuse himself. That will satisfy, I think, the American people. 

Thank you, Mr. Chairman. 

Chairman HATCH. Senator Durbin? 

Senator DURBIN. Thank you, Mr. Chairman, and thanks to the 

witnesses before the Committee. 

Mr. Wray, when the PATRIOT Act came before us, and the issue 

of wiretaps came up, a point was made, I think very effectively, 

that the wiretap law in the United States had been written at a 

time before cell phones and before a lot of other forms of telecommunication and that if we were going to be successful in using 

wiretaps to go after those who were responsible for 9/11 or those 

who would do similar things that we had to reform this law and 

bring it up to date. 

58

I thought that was a very compelling argument and was one of 

the explanations I gave to people who asked me why I voted for 

the PATRIOT Act. It strikes me, though, that we have to not only 

make certain that our law reflects new technology but also to do 

everything we can to make certain that there is no abuse of the 

power of the Government to wiretap; specifically, that innocent people would not have their conversations wiretapped. 

In that light, can you tell me why, when it comes to these roving 

wiretaps, you believe that it is unreasonable to ask the Government to identify the target of the wiretap or the place to be wiretapped? 

Mr. WRAY. Senator, in the connection with roving wiretaps, the 

people who are the subjects of those sorts of investigative tools are 

people who, by definition, are those with whom we have had the 

most trouble tracking and intercepting. And therefore, the Government has had considerable concerns about making sure that the 

details of and the applications of the technique in question are kept 

as confidential as possible in order not to jeopardize the investigations. 

Senator DURBIN. So let us get down to the bottom line. If you are 

going to wiretap someone, if you are going to tap their phone, you 

do not call them in advance and say incidentally, your phone is 

going to be tapped. That would defeat the whole purpose. So the 

target of the wiretap is certainly kept in the dark if this is going 

to be successful. 

Why is it unreasonable for the Government to disclose to the 

court when asking for a roving wiretap the name of the person that 

they want to tap? 

Mr. WRAY. I would have to look at the particular situation that 

you are describing. It is my experience that roving wiretaps have 

consistently been handled effectively in investigations; that they 

have been used fairly sparingly; and that they have not been 

abused. 

Senator DURBIN. Well, I would just say this: the bill that we have 

introduced, Senator Craig and myself, a very unlikely duo for legislation on Capitol Hill, this is one of the provisions, and it is beyond 

me to understand why the Government should not say to the court 

Durbin is the one we want to wiretap. Now, I do not know if it is 

going to be his cell phone or his home phone or his office phone, 

but we are going after Durbin. 

Now, you are not going to tell him that, but the court ought to 

know that. Currently, the roving wiretap does not require that disclosure, that Durbin is the person. And all we are saying as part 

of our SAFE Act and revision of the PATRIOT Act is that that is 

not an unreasonable thing to do to make certain that in your quest 

to get information about Durbin, you do not pick up Schumer and 

Feingold and all of the others on the Democratic side. 

So the point I am making here is I do not think this is an unreasonable thing to do. The point made by Senator Feingold, I think, 

is equally valid. When we are talking about subpoenaing business 

records or records from libraries or book stores, what we are asking 

for the Government to do is perhaps to provide some specificity to 

the court so as to avoid subpoenaing documents of innocent people. 

Should that not be one of our goals here, not only to give you the 

59

tools of prosecution but to always measure them against the rights 

and liberties of innocent people that may be infringed if the Government goes too far? 

Mr. WRAY. Senator, I certainly agree that our efforts in protecting the lives and liberties of Americans should be always done 

fully within the bounds of the Constitution. I understand that you 

and Senator Craig have proposed legislation on the so-called John 

Doe roving wiretaps that you are reforming to, and I gather that 

the Department is in the process of formulating a response. 

Senator DURBIN. I sent a copy of it to Mr. Fitzgerald, too, so that 

he could see what we were up to, because I announced this in the 

City of Chicago, and I would like to go to a question to Mr. Fitzgerald. 

You made a point and a very valid point about the difficulty you 

had in prosecuting cases when there was one camp called intelligence and one camp that was dealing with the prosecution 

through the FBI, domestic law and the like. It is a very important 

point, and I am glad that, although the PATRIOT Act may have 

addressed this, whatever was holding up this line of conversation 

and dialogue has finally changed for the better. 

But I want to ask you a question: we heard from the GAO, and 

this was the subject of a hearing by Senator Cornyn of Texas, that 

nine different agencies still develop and maintain a dozen terrorist 

watch lists, including overlapping and different data and inconsistent procedures and policies on sharing. 

Now, the law that created the Department of Homeland Security 

required the Department to consolidate these watch lists, and the 

Bush administration has promised that it would happen, and it has 

not. So when we talk about the wall between intelligence and the 

ordinary prosecution of crime in America, there are walls that still 

exist, creations of the bureaucracy of this administration. Would 

you concede that point? 

Mr. FITZGERALD. Well, I do not know when the bureaucracy got 

created. There has been bureaucracy created for a long time. So I 

do not want to get into the political— 

Senator DURBIN. Inherited by this administration, then. 

Mr. FITZGERALD. And I do not want to do one of these that is not 

my job, but my friend Mike Garcia over at Homeland Security and 

his colleagues have to deal with the issues there. I think that the 

difference is, all I know is in going about doing the business of 

being a prosecutor, what the PATRIOT Act did for us was tear 

down the wall where we could not communicate. 

Senator DURBIN. I do not want to push you into an area that 

may not be your area of understanding and expertise. 

Mr. FITZGERALD. And I recognize that there is lots of work to be 

done and lots of areas in making sure that we coordinate— 

Senator DURBIN. Progress has been made. Tom Ridge is a great 

appointment. I think Bob Mueller is doing a fine job. There is no 

doubt in my mind about that. But the interoperability of computers 

and the sharing of information on terrorist lists, there is still a 

wall, and that wall can be broken down, and it does not take a law, 

a new law, to have it happen. It can happen within the administration, and it is too slow in coming. 

60

Mr. Wray, my last question to you is on this criminal leak involving Ambassador Wilson’s wife. Have you been party to any conversations with the Attorney General and discussed the necessity 

or the possibility of his recusing himself from this case? 

Mr. WRAY. Senator, I respectfully cannot discuss the substance 

or details of my deliberations with the Attorney General. I can tell 

you that the Attorney General has said, I believe publicly, that he 

has kept all options open and will continue to keep all options 

open, but that in the meantime, he has directed that this investigation be handled thoroughly, professionally, and completely. It is an 

active, ongoing investigation. And I will say that having seen and 

known the prosecutors and agents working on this matter—the 

lead prosecutor has 30 years’ experience in this area and the lead 

agent, who has about the same number of years—that you would 

be inspired by their professionalism and work ethic and integrity. 

Senator DURBIN. Mr. Wray, we are all students of and creatures 

of the law, and we are familiar with two terms: impropriety and 

appearance of impropriety, and I think what we are dealing with 

here, whether the people on the case are the very best professionals 

that the Government could possibly have involved is just a question, a lingering question, as to whether the Attorney General is 

too close to the people who are being subjected to this investigation. That is the sole reason for asking for an independent prosecutor, not questioning Mr. Dion, Mr. Schwartz, yourself or anybody involved in it but the fact that there is an appearance which 

lingers over this. There are statements that have been made by 

some to diminish this. 

Can I ask you: do you consider this criminal leak to be of a serious nature? 

Mr. WRAY. Absolutely, Senator. I consider any leak of classified 

national security information to be a very serious matter and nowhere more so than when we are talking about the identities of the 

men and women of our intelligence community. I think that is the 

spirit with which everyone in this matter, from top down, has been 

approaching this matter. 

I will say that when it comes to the issues you are raising about 

appearance, that I would hope that the American people could have 

the confidence that I have in the people working on this investigation. I will also say that it is difficult for me to discuss the kinds 

of issues you are raising, because it necessarily is based on assumptions about who the targets and subjects of the investigation 

are. That is the direction in which you would then be making judgments about how the matter should be handled. 

Senator DURBIN. My thanks to the panel and thank you, Mr. 

Chairman. 

Chairman HATCH. Thank you, Senator. 

I want to compliment this panel. You have sat there and answered all of the questions and have helped us all to understand 

even more how important the work is that you are doing and, 

frankly, how important the PATRIOT Act is in helping you to get 

the work done for the people of America to protect us. 

There are so many false statements being made against the PATRIOT Act, and they are generally done by the two extremes: from 

the far left to the far right. And it is disgusting to us who have 

61

worked so hard to enact that Act. And the media just grabs those 

radical statements as though they are fact, but I think you have 

helped to clear away the brush to a degree here today, to a large 

degree, and frankly, I think one of the most telling statements is 

that the PATRIOT Act has been upheld in every court of law that 

it has appeared in so far and with good reason: had we had the 

PATRIOT Act, we may never have had, have suffered 9/11, because 

we would have had the tools to maybe catch these people. 

Now, that does not mean it is perfect and that we will not have 

terrorist acts in the future, but I will tell you one thing: at least 

you will have some tools that anybody with brains, I think, would 

conclude are important for law enforcement to have in order to protect this Nation. And I personally resent some of the misconstructions and false statements and intellectual babbling that goes on 

about the PATRIOT Act, and I think you folks, being on the front 

lines have helped us to understand that better than any group that 

has appeared before this Committee since we began discussing the 

PATRIOT Act. 

And a lot of people fail to recognize that the PATRIOT Act 

passed 98 to 1 in the United States Senate and virtually unanimously in the House. So we want to make sure you have the tools 

to protect our Nation. We want to make sure you have the tools 

to go after these criminals and these terrorists, and we certainly 

want to bring the fight against terrorism, the tools against terrorism, up to the level and dignity of the fight against violent crime 

or even pornography and child molestation. 

Those are important areas of the criminal law. Why would we 

not elevate the tools for law enforcement with regard to terrorism 

to that level? It just makes common sense. But the laws were not 

there when 9/11 happened, and I particularly feel badly about it, 

because when we put the Hatch-Dole Anti-Terrorism Effective 

Death Penalty through in 1996, it was very disappointing to me 

that some on the far left and the far right prevented us from giving 

you some of these tools that might very well have protected us on 

9/11 and saved upwards of 3,000 lives. 

So your testimony here today is very important. Now, we are 

going to keep the record open for written questions that must be 

submitted within 7 days, and you will have 30 days in which to respond to those questions. Now, I have agreed that if, there are further matters arise that we can extend that seven-day period for 

asking questions, but basically, we should be able to ask all of the 

questions that need to be asked in the next 7 days, and you will 

have 30 days to answer those questions. 

I want to thank all three of you. You are heroes to me and heroes 

to this country, and we appreciate the good, hard work that you are 

doing. 

And with that, we will recess until further notice. 

[Whereupon, at 1:23 p.m., the Committee adjourned.] 

[Questions and answers and submissions for the record follow.]

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