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21–023 PDF 2005

IMPLEMENTATION OF THE USA PATRIOT ACT:

SECTIONS 201, 202, 223 OF THE ACT THAT

ADDRESS CRIMINAL WIRETAPS, AND SECTION

213 OF THE ACT THAT ADDRESSES DELAYED

NOTICE

HEARING

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

MAY 3, 2005

Serial No. 109–20

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://www.house.gov/judiciary 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL ISSA, California 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

ADAM SMITH, Washington 

CHRIS VAN HOLLEN, Maryland

PHILIP G. KIKO, Chief of Staff-General Counsel 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

HOWARD COBLE, North Carolina, Chairman

DANIEL E. LUNGREN, California 

MARK GREEN, Wisconsin 

TOM FEENEY, Florida 

STEVE CHABOT, Ohio 

RIC KELLER, Florida 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

LOUIE GOHMERT, Texas 

ROBERT C. SCOTT, Virginia 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ANTHONY D. WEINER, New York

JAY APPERSON, Chief Counsel 

ELIZABETH SOKUL, Special Counsel on Intelligence 

and Homeland Security 

JASON CERVENAK, Full Committee Counsel 

MICHAEL VOLKOV, Deputy Chief Counsel 

BOBBY VASSAR, Minority Counsel 

(III)

C O N T E N T S 

MAY 3, 2005

OPENING STATEMENT 

Page 

The Honorable Howard Coble, a Representative in Congress from the State 

of North Carolina, and Chairman, Subcommittee on Crime, Terrorism, and 

Homeland Security ............................................................................................... 1

The Honorable Robert C. Scott, a Representative in Congress from the State 

of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, 

and Homeland Security ....................................................................................... 2

WITNESSES 

The Honorable Michael J. Sullivan, United States Attorney, District of Massachusetts 

Oral Testimony ..................................................................................................... 6

Prepared Statement ............................................................................................. 8

Mr. Chuck Rosenberg, Chief of Staff to Deputy Attorney General, U.S. Department of Justice 

Oral Testimony ..................................................................................................... 14

Prepared Statement ............................................................................................. 16

Ms. Heather Mac Donald, John M. Olin Fellow, The Manhattan Institute 

for Policy Research 

Oral Testimony ..................................................................................................... 20

Prepared Statement ............................................................................................. 21

The Honorable Bob Barr, former Member of Congress, Atlanta, Georgia 

Oral Testimony ..................................................................................................... 24

Prepared Statement ............................................................................................. 25

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Robert C. Scott, a Representative in 

Congress from the State of Virginia, and Ranking Member, Subcommittee 

on Crime, Terrorism, and Homeland Security ................................................... 47

Letter from the Honorable William E. Moschella, Assistant Attorney General, 

U.S. Department of Justice to the Honorable Arlen Specter ........................... 52

Report from the Office of the Inspector General entitled ‘‘Report to Congress 

on Implementation of Section 1001 of the USA PATRIOT Act,’’ March 

11, 2005 ................................................................................................................. 59

Report from the U.S. Department of Justice entitled ‘‘Delayed Notice Search 

Warrants: A Vital and Time-Honored Tool for Fighting Crime,’’ September 

2004 ....................................................................................................................... 79

Letter from the Honorable William E. Moschella, Assistant Attorney General, 

U.S. Department of Justice to the Honorable Howard Coble ........................... 88

Article submitted by Heather Mac Donald, John M. Olin Fellow, The Manhattan Institute for Policy Research, entitled ‘‘Straight Talk on Homeland 

Security,’’ City Journal (Summer 2003) ............................................................. 95

(1)

IMPLEMENTATION OF THE USA PATRIOT 

ACT: SECTIONS 201, 202, 223 OF THE ACT 

THAT ADDRESS CRIMINAL WIRETAPS, AND 

SECTION 213 OF THE ACT THAT ADDRESSES 

DELAYED NOTICE 

TUESDAY, MAY 3, 2005

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

COMMITTEE ON THE JUDICIARY, Washington, DC.

The Subcommittee met, pursuant to notice, at 10 a.m., in Room 

2141, Rayburn House Office Building, the Honorable Howard Coble 

(Chair of the Subcommittee) presiding. 

Mr. COBLE. Good morning, ladies and gentlemen. At the outset 

I will apologize. I just told Mr. Scott and Mr. Beckert I have fallen 

victim to the April-May pollen attack. So pardon my raspy, gravelly 

voice, but we’ll try to get through it 

Today the Subcommittee on Crime, Terrorism, and Homeland Security will hold a hearing on criminal authorities for surveillance 

and search warrants. We are examining three sections of the PATRIOT Act that are sunsetting, and one section that is not, but has 

become controversial. Sections 201 and 202 of the PATRIOT Act 

create new wiretap predicates. Wiretap predicates are serious 

crimes enumerated in the Federal Criminal Code, but fall under 

one of the limited circumstances for which Congress authorized the 

use of a wiretap or electric surveillance. 

Sections 201 and 202 in no way change the strict limitations on 

when wiretaps may be used, as Congress dictated in title III of the 

Omnibus Crime Control and Safe Streets Act of 1968. That Act outlines what is and what is not permissible with regard to wiretapping and electronic eavesdropping. 

Title III restrictions go beyond fourth amendment constitutional 

protections and include a statutory suppression rule to exclude evidence that was collected in violation of title III. Section 223 of the 

PATRIOT Act added additional safeguards against abuse by 

amending the Federal Criminal Code to provide for administrative 

discipline of Federal officers or employees, as well as for similar actions to be brought against the United States for damages by a person aggrieved by such illegal disclosures. 

Section 213 provides courts the discretion to delay notifying a 

suspect whose property is the target of a search. Some have 

deemed this section controversial, but I believe that any conVerDate 0ct 09 2002 14:17 Jun 27, 2005 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\050305\21023.000 HJUD1 PsN: 21023
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troversy has been caused by inaccurate information. I realize that 

my view may not be shared by my good friend Mr. Barr, and perhaps others, but nonetheless, I’m concerned with the level of rhetoric that has been disseminated about this section, which has been 

a long-standing, vital tool for law enforcement. 

Many in the public sector may be shocked to know that section 

213 does not create a new title search warrant; rather, it merely 

standardized the special circumstances upon which a court may authorize delayed notice to a target of a search. Because of alarmist 

rhetoric in many cases by some, the public also may not be aware 

that courts have been authorizing delayed notice for search warrants for several decades. In fact, this section does not affect the 

standard that requires a judge to find probable cause of criminal 

activity prior to issuing a search warrant. 

I would also like to note that the Administrative Office of the 

U.S. Courts found that in a 12-month period that ended in September of 2003, the Court, the Federal courts, handled 32,529 

search warrants. While I don’t have numbers for the same period 

for the number of times courts authorized delayed notice for those 

search warrants, I do have numbers for a similar duration of 14 

months, between April of 2003 and July 2004. Over that period the 

number of times courts authorized delayed notice was 61. So 61 

search warrants with delayed notice out of 32,000 plus comes to 

about, I think, .2 percent. These numbers are discussed in a Department of Justice April 4, 2005 letter, which, without objection, 

I would like to introduce into the record. 

Throughout these hearings many have argued that the sunset 

provision of the act has required the Department to be on its best 

behavior for implementing the PATRIOT Act. I would like to point 

out that this section, sunset, has been used very rarely, and the inspector general for the Department of Justice has not found any 

abuse of this section or any other sections of the PATRIOT Act in 

the six reports it has sent to the Congress. So even without a sunset allegedly forcing the Department to behave, section 213 has not 

been abused. The Government and Federal judges in whom the authority rests under the statute appear to have judiciously used this 

provision. 

Having said this, I look forward to hearing testimony from our 

panel, and I am now pleased to recognize the distinguished gentleman from Virginia, the Ranking Member, Mr. Bobby Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. And thank you for holding the hearing on these important sections. 

We’re considering section 213 of the USA PATRIOT Act, the infamous delayed notice or ‘‘sneak and peek’’ authority extended under 

the act. This lets police secretly go into someone’s home or place 

of business to look around for evidence and not necessarily seize 

anything. In addition to the observations, pictures or other recordings such as CDs or floppy disks can be taken, and they can record 

things off of your computer. Under ordinary circumstances, notice 

of the search would be given through the officers showing up at 

your door to conduct the search. With sneak and peek, notice is not 

given until sometime after the search, such as when an arrest or 

physical seizure of property has taken place. Even before section 

3

213, courts allowed sneak and peek searches, with probable cause 

and reasonable circumstances justifying the delayed notice. 

The U.S. Supreme Court has not ruled on the sufficiency of 

sneak and peak warrants under the fourth amendment, but there 

have been several circuit court decisions, the second, fourth and 

ninth circuits, for example, and while these courts have not set a 

specific standard for such searches and notices, they have ruled 

that search and notice must be reasonable and should not exceed 

7 days without additional reasonable foundation separate and 

apart from the original delay. Although this provision is not one of 

the sunsetted provisions under this PATRIOT Act, it is the provision of the act which has received the most congressional attention 

since its enactment. 

Sneak and peak was not in the bill approved unanimously by 

this Committee in the weeks following 9/11, and during the last 

Congress the House actually passed by a wide margin an amendment to the Department of Justice appropriations denying the use 

of funds to implement any sneak and peek warrants. It did not 

pass the Senate, so it did not become law, but it did show by a wide 

margin that that amendment did pass the House. 

Sneak and peek warrants are anathema to our traditions of privacy and notice under the fourth amendment. 

Now, one of the problems with section 213 is that it does not set 

a time limit on how long the notice can be delayed. Another problem is this catch-all provision that allows the court to approve a 

sneak and peak warrant without there being really dire or exigent 

circumstances. 

Under the court-approved sneak and peak warrants under section 213—under sneak and peak warrants before section 213, the 

warrants were approved only where it was deemed necessary to 

prevent such things as endangering life or physical safety, flight 

from prosecution, or destruction of evidence. Under section 213, an 

addition to these circumstances, a sneak and peak warrant can be 

issued to prevent a case from being, quote, otherwise seriously 

jeopardized or a trial from being unduly delayed. 

Within the 155 sneak and peak warrants the Department of Justice concedes to have issued under section 213, recent information 

reveals that 92 of them have been under this catch-all provision. 

Of course, when the Department talks about section 213, as with 

all PATRIOT Act provisions, it talks about how important it is to 

protect us from terrorism. Yet it is clear that these extraordinary 

powers, such as sneak and peek, are used for more than just terrorism cases, and just how much more is one of the issues we need 

to explore. With this broad use, including the garden variety 

crimes, makes it even more imperative that we keep a close watch 

on these provisions. 

So, Mr. Chairman, this is another situation where if we don’t 

eliminate the extraordinary power for Government to pry into our 

private lives and affairs, we certainly ought to make sure that we 

structure that authority to ensure it is not the subject of abuse, or 

that the safeguards don’t degrade over time. So I look forward to 

the testimony of our witnesses to see how we might accomplish 

that. 

Mr. COBLE. I thank the gentleman from Virginia. 

4

Lady and gentlemen, it is the practice of the Subcommittee to 

swear in all witnesses appearing before it, so if you all would 

please stand and raise your right hands. 

[Witnesses sworn.] 

Mr. COBLE. Let the record show that each of the witnesses answered in the affirmative. 

We are blessed today, ladies and gentlemen, with a very fine 

panel. Our first witness is Mr. Michael J. Sullivan, United States 

Attorney for the District of Massachusetts. Mr. Sullivan has been 

active in instituting task forces that enable the Federal Government, along with State and local governments, to combat potential 

terrorist attacks. 

Prior to serving as U.S. Attorney, Mr. Sullivan was a District Attorney of Plymouth County, and was a member of the Massachusetts House of Representatives. He is a graduate of Boston College 

and the Suffolk University School of Law. 

Our second witness is Mr. Chuck Rosenberg, Chief of Staff to 

Deputy Attorney General James B. Comey. Mr. Rosenberg previously served as counsel to Attorney General John Ashcroft, and 

prior to that as counsel to FBI Director Mueller. Prior to joining 

the FBI, Mr. Rosenberg was an Assistant District Attorney. He is 

an alumnus of the Tufts University, Harvard University and the 

University of Virginia School of Law. 

Our next witness is Ms. Heather Mac Donald, a John M. Olin 

Fellow at the Manhattan Institute and a contributing editor to City 

Journal. Prior to joining the Manhattan Institute, Ms. Mac Donald 

clerked for the Honorable Stephen Reinhardt, U.S. Court of Appeals for the Ninth Circuit, served as an attorney-advisor in the Office of the General Counsel of the U.S. Environmental Protection 

Agency, and served as a volunteer with the Natural Resource Defense Fund in New York City. 

Ms. Mac Donald received her B.A. in English from Yale University, graduated summa cum laude with a Mellon fellowship to 

Cambridge University, where she earned an M.A. in English, and 

studied in Italy through a college study grant. She also is a graduate of Stanford University School of Law. 

Our final witness is Mr. Bob Barr, the Honorable Bob Barr, represented the Seventh District of Georgia at the U.S. House of Representatives, and is an alum of this Committee. Good to have you 

back on the Hill, Bob. 

Mr. BARR. Thank you, Mr. Chairman. 

Mr. COBLE. He is the 21st Century Liberties Chair for Freedom 

and Privacy at the American Conservative Union, and provides advice to several organizations, including the ACLU. 

Mr. Barr served as the United States Attorney for the Northern 

District of Georgia from 1986 to 1990, and he was also an official 

with the CIA and practiced law for many years. Now I don’t have 

this in my statement, Mr. Barr, but if my memory serves correctly, 

you did your undergraduate work at USC, and was awarded a law 

degree from Georgetown. 

Mr. BARR. The real USC. 

Mr. COBLE. I was going to say in my district USC would be the 

University of South Carolina, but in your case it is, indeed, Southern California. 

5

Now I have not talked to Mr. Delahunt. Mr. Delahunt, would you 

like to introduce Mr. Sullivan furthermore? 

Mr. DELAHUNT. Of course. I had the pleasure to serve with Mr. 

Sullivan for—I think our terms overlapped as district attorneys in 

Massachusetts for maybe a year or two, and he was coming along 

just fine, Mr. Coble. And then, of course, he won the approval of 

the President and has served well in the U.S. Attorney’s Office. 

And I want to welcome you, Mike, to this hearing. 

And I also have to acknowledge our former colleague and friend 

Bob Barr, who we served together for—how many years was it, 

Bob? 

Mr. BARR. It seems like about 40 or 50, but a little bit less than 

that. 

Mr. DELAHUNT. That’s my memory, too. While we had some disagreements in terms of a number of issues, we also shared, you 

know, a consensus on some significant issues, particularly in the 

course of the Committee’s proceedings dealing with the PATRIOT 

Act. And I think it really reflected well on the full Committee that 

at least the first version of the PATRIOT Act—and Bob Barr had 

much to do with that final result in a piece of legislation I think 

we all took great pride in. And I remember, of course, serving with 

Bob Barr during the impeachment proceedings; again, we had disagreements, but he is a man of keen intellect, and I consider Bob 

a friend. 

Mr. COBLE. Thank you, Mr. Delahunt. 

Mr. Delahunt knows this, and this has absolutely nothing to do 

with the PATRIOT Act, but I am a long-time Celtic and Patriot 

fan, however, I did not cheer for the Patriots when they beat the 

Carolina Panthers in the Super Bowl several years ago. 

Mr. SCOTT. Mr. Chairman, I would like to say a word about our 

former colleague, too, because when we went through the PATRIOT Act originally, we had some late nights—many of us worked 

late nights to try to get that into a form that we could come to 

some agreement on, and Mr. Barr was one of those that spent as 

many late nights and long meetings as anybody else. And as the 

gentleman from Massachusetts has indicated, we put together a 

package that passed this Committee unanimously, and the gentleman from Massachusetts has also put that in historic context. 

That was just a few months after the impeachment process where 

this Committee in some view did not distinguish itself in terms of 

partisan cooperation, but coming up with a version of the USA PATRIOT Act that passed this Committee unanimously, I think, was 

quite a feat. Unfortunately, somewhere been the Committee and 

the floor our good work got lost, but Mr. Barr was one of those that 

worked long and hard to try to come together. 

Mr. COBLE. I want the record to show that I earlier told Mr. Barr 

that we miss him on the Hill—I don’t want to be the only guy here 

not praising Mr. Barr. 

Folks, it’s good to have you all with us. We also have been joined 

by the distinguished gentleman from Ohio Mr. Chabot. Good to 

have you here with us today. 

Mr. CHABOT. Thank you, Mr. Chairman. 

Mr. COBLE. Folks, we try on this Subcommittee to operate under 

the 5-minute rule, as you all have been previously notified. The 

6

panels that appear before you all, when the amber light appears, 

the ice on which you are skating is becoming thin, you have a 

minute to go; and then when the red light appears, your time has 

expired. So if you could stay within the 5-minute time frame, we 

would be appreciative. 

Mr. Sullivan, why don’t you kick it off. 

TESTIMONY OF THE HONORABLE MICHAEL J. SULLIVAN, 

UNITED STATES ATTORNEY, DISTRICT OF MASSACHUSETTS 

Mr. SULLIVAN. Thank you very much, Mr. Chairman. And thank 

you for your support of both the New England Patriots and the 

Boston Celtics. I want the record to reflect I’m also a fan of the Patriots and the Celtics and the Boston Red Sox, and certainly the 

Boston Bruins. 

Mr. Chairman, Ranking Member Scott, Members of the Subcommittee, my good friend Mr. Delahunt, I want to thank you for 

the invitation to appear before you today to discuss several important provisions of the USA PATRIOT Act. I want to address sections 201 and 202 of the act which provide law enforcement with 

the ability to use preexisting wiretap authorities to investigate certain crimes that terrorists are likely to commit, such as those involving weapons of mass destruction, material support to terrorists 

and foreign terrorist organizations, and important cybercrime and 

cyberterrorism offenses. I will also address section 223. 

All three of these sections are currently scheduled to sunset at 

the end of 2005. If section 201 and 202 are allowed to sunset, we 

will lose valuable tools that allow law enforcement to investigate 

a full range of terrorism-related crimes. Paradoxically, these tools 

would be unavailable in criminal investigations and offenses involving chemical weapons, cyberterrorism, and weapons of mass 

destruction, but would be available to investigate traditional crimes 

such as drug offenses, mail fraud and passport fraud. This would 

be a senseless approach because it’s absolutely vital that the Justice Department have all the appropriate tools at its disposal to investigate terrorism crimes. 

I’m here to ask you to make permanent sections 201 and 202, 

and also 223 of the USA PATRIOT Act. 

In the criminal law enforcement context, Federal investigators 

have long been able to obtain court orders to intercept wire communications and oral communications to investigate numerous criminal offenses listed in the Federal wiretap statute. The list of offenses include traditional crimes including drug crimes, mail fraud 

and passport fraud. Prior to the enactment of the USA PATRIOT 

Act, however, certain extremely serious crimes that terrorists are 

likely to commit were not among them. This prevented law enforcement authorities from using many forms of electronic surveillance 

to investigate these criminal offenses. As a result, law enforcement 

could obtain, under appropriate circumstances, a court order to 

intercept foreign communications in a passport fraud investigation, 

but not a criminal investigation of terrorists using chemical weapons or murdering a United States national abroad. 

Section 201 of the USA PATRIOT Act ended this anomaly in the 

law by amending the criminal wiretap statute when Congress 

added the following terrorism-related crimes to the list of wiretap 

7

predicates: chemical weapons offenses, murders and other acts of 

violence against United States nationals occurring outside of the 

United States, the use of weapons of mass destruction, violent acts 

of terrorism transcending national borders, financing transactions 

with countries that support terrorism, and material support for terrorists and terrorist organizations. There are also two other offenses that Congress subsequently added to the list. 

Section 201 of the USA PATRIOT Act preserved all of the preexisting standards in the wiretap statute. 

Just as many traditional terrorism-related offenses were not listed as wiretap predicates before the passage of the USA PATRIOT 

Act, neither were many important cybercrime or cyberterrorism offenses, offenses concerning which law enforcement must remain 

vigilant and prepared in the 21st century. Section 202 of the USA 

PATRIOT Act eliminated this anomaly by allowing law enforcement to use preexisting wiretap authorities to investigate felony offenses under the Computer Fraud and Abuse Act, and brought the 

criminal code up to date with modern technology. 

As with section 201, section 202 of the USA PATRIOT Act preserved all the preexisting standards in the wiretap statute. If section 202 were allowed to expire, then investigators will not be able 

to obtain wiretap orders to investigate many important cybercrime 

and cyberterrorism offenses, resulting in a criminal code that is 

dangerously out of date compared to modern technology. 

As for section 223, a person now harmed by willful violation of 

the criminal wiretap statute or improper use and disclosure of information contained in the Foreign Intelligence Surveillance Act 

may now file a claim against the United States for at least $10,000 

in damages, plus costs. Most everyone who has reviewed this section agrees it is a valuable tool and should be renewed. 

I want to thank you again for the opportunity to discuss section 

201, 202 and 223 of the USA PATRIOT Act. These provisions are 

critical to the Department’s efforts to protect Americans from terrorism. From my experience as a prosecutor, I know firsthand how 

valuable wiretaps are to investigations and prosecution of serious 

criminal offenses. There is no logical reason why these valuable 

tools should not be extended to law enforcement to protect our citizens from terrorism-related offenses as well. 

I would be happy to answer any questions you may have. 

Mr. COBLE. Thank you, Mr. Sullivan. 

[The prepared statement of Mr. Sullivan follows:]

8

PREPARED STATEMENT OF MICHAEL SULLIVAN


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Mr. COBLE. And Mr. Rosenberg. 

TESTIMONY OF CHUCK ROSENBERG, CHIEF OF STAFF TO 

DEPUTY ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE 

Mr. ROSENBERG. Thank you, Chairman Coble, Ranking Member 

Scott, Members of the Subcommittee, Mr. Delahunt and Mr. 

Chabot. It’s a pleasure to be here today, and I appreciate the opportunity to speak to the Subcommittee about what I believe to be 

a very ordinary tool that has been gravely misunderstood and 

misperceived. I speak of section 213 of the PATRIOT Act, which 

codified and gave us a single uniform national standard for the execution of delayed notification searches. 

Delayed notification searches are nothing new. I said they’re 

rather ordinary; I should also say they’re rather old, we’ve had 

them for decades. The authority to execute delayed notification 

searches dates back many, many years. Implicitly, a Supreme 

Court case in 1967, Katz v. United States, and more concretely, to 

a 1979 Supreme Court case which recognized that the fourth 

amendment does not require in all instances immediate notification 

of a search. 

In the wake of that 1979 Supreme Court case, circuit courts 

throughout the country, in the second, in the fourth and the ninth 

circuit, had slightly varying standards on how you would obtain a 

delayed notification search, what was required, and how long the 

period of delay would be. And what this Congress gave us in section 213 again was a single standard, so there was uniformity 

through the country. 

Let me clear up one large misperception. Under the fourth 

amendment, to execute a search warrant a Federal prosecutor, an 

agent, had to demonstrate to the satisfaction of a Federal judge 

probable cause; in other words, probable cause that the search 

would yield fruits of a crime, evidence of a crime. That was true 

before the PATRIOT Act, it is true now; nothing about the PATRIOT Act or section 213 changed that at all. 

As well, prior to the PATRIOT Act, a Federal judge had to authorize a search warrant; whether it was with delayed notice or 

without, regardless, a Federal judge had to authorize it. That was 

true before the PATRIOT Act, that’s true now. Nothing about that 

has changed. 

To delay notice, however, you require something more, probable 

cause for the search, but for the delay you need to show reasonable 

cause that if you don’t delay notification, that some adverse result 

would flow from that. There are five in the statute: that a life 

would be endangered, that there would be flight from prosecution, 

that evidence might be destroyed or tampered with, that potential 

witnesses could be intimidated, or that an investigation could be 

seriously jeopardized. 

In all cases we need to demonstrate that to a Federal judge, and 

she needs to be satisfied that we have reasonable cause to delay 

the search. So without that, we can’t delay. And that’s what I want 

to be very clear about, Mr. Chairman, we must have permission of 

the court to act not just for the underlying search, but for the delay 

as well. 

15

In all cases, in all cases, we still give notice, we must. It’s required under the law. It’s just a question of whether or not we may 

be able to delay that notice for some reasonable period of time. 

We do not use this authority very often. Out of every 1,000 

searches—and this is a rough average—we use it twice. That’s 

about .2 percent. We use it when we need it. And, I submit, we use 

it judiciously and smartly and carefully, and, again, only with the 

authorization of a court. Nothing in the PATRIOT Act, nothing in 

section 213 removes the probable cause requirement. Nothing in 

the PATRIOT Act removes the requirement that a judge give us 

permission to delay notice. 

I have a little bit of time left, but I don’t want to use it all now. 

I will pass it along. I appreciate the opportunity to speak. I am 

happy to answer any questions you may have. 

[The prepared statement of Mr. Rosenberg follows:]

16

PREPARED STATEMENT OF CHUCK ROSENBERG


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Mr. COBLE. Well, you and Mr. Sullivan have put Ms. Mac Donald 

and Mr. Barr under a bright light because you both beat the red 

light. 

Ms. Mac Donald, you’re on. 

TESTIMONY OF HEATHER MAC DONALD, JOHN M. OLIN FELLOW, THE MANHATTAN INSTITUTE FOR POLICY RESEARCH 

Ms. MAC DONALD. I’m going to be lean and mean, Mr. Chairman. 

Thank you very much for inviting me today, I am honored to be 

testifying before you. 

The PATRIOT Act has been subject to the most successful misinformation campaign in recent memory. From the day of its passage, 

it’s been portrayed as a power grab by an Administration intent on 

trampling on civil rights. As I have debated the act across the 

country, I’ve been amazed by the amount of ignorance out there 

about it, and therefore I applaud the Committee for taking the 

time to set the record straight. 

Now, I have observed four rhetorical strategies used to discredit 

the act, and I want to discuss them in the context of section 213, 

the delayed notification provision, because if you can discredit them 

in those—in that context, you have the key for undermining the entire anti-PATRIOT propaganda campaign. 

The first strategy used by opponents of the act is to conceal legal 

precedent. Section 213, as we heard, allows the Government to 

delay notice of the search if notice would result in witness intimidation, evidence tampering or other adverse results. The section 

has been universally portrayed as a radical new power that will 

unleash Government tyranny. The gall of this claim astounds me, 

because, as Mr. Rosenberg explained, section 213 merely codifies 

two decades of judicial precedent. If delayed notice were the threat 

that it were made out to be, we would have heard about abuses by 

now. But as with every other section of the PATRIOT Act, the critics have been unable to bring forth a single example of abuse over 

not just 4 years of use, but two decades of delayed notice authority. 

The second strategy used by PATRIOT Act opponents is what I 

call ‘‘hiding the judge.’’ We never learn from the section 213 opponents that under it the Government can investigate a suspect and 

delay notice only if a judge gives permission. It’s a Federal judge 

who decides whether delay is reasonable, not a law enforcement 

agent. 

The third strategy against the PATRIOT Act, amending the statute. PATRIOT Act critics invariably imply under section 213 the 

Government can permanently conceal that a search has occurred. 

This charge rewrites the section which says that delay can only be 

temporary for a reasonable period of time. 

Ultimately I’ve discovered what drives most critics of the act is 

a deep suspicion of Government secrecy in criminal or terror investigations. This is the fourth strategy, rejecting secrecy. Opponents 

of section 213 apparently believe that if the Government wants to 

search Muhammad Atta’s hard drive, it should show up at his door 

and hand him a search warrant and say, ‘‘Oh, Mr. Atta, we would 

like permission, please, to search your computer.’’ This line of attack shows a complete obliviousness to the distinction between an 

21

after-the-fact criminal investigation and preemptive antiterror investigations. 

In passing the PATRIOT Act, Congress recognized the urgency of 

moving law enforcement from a reactive to a preventative mode. 

Speed and secrecy are the essence of preventing terrorist attacks, 

and, indeed, in many criminal investigations as well. 

There is one final fallacy that I want to quickly allude to which 

is being suspended in time. For critics of the PATRIOT Act, it is 

always 1968 when J. Edgar Hoover was indeed trampling on civil 

rights; but this line of reasoning ignores the massive sea change in 

law enforcement that has occurred since then. The FBI has internalized the rule of law and the norms of restraint. The biggest 

challenge we had before 9/11 was persuading our agents to use this 

power that was available to them. 

In conclusion, section 213, like the rest of the PATRIOT Act, was 

a reasonable response to the new threat of catastrophic terrorism. 

It has not led to a single abuse of civil rights, and it should be renewed. Thank you. 

Mr. COBLE. Thank you, Ms. Mac Donald. 

[The prepared statement of Ms. Mac Donald follows:]

PREPARED STATEMENT OF HEATHER MAC DONALD

Thank you, Mr. Chairman and members of the Committee. My name is Heather 

Mac Donald. I am a senior fellow at the Manhattan Institute for Policy Research, 

a think tank in New York City. I have written extensively on homeland security 

for the Washington Post, the Wall Street Journal, the Los Angeles Times, and City 

Journal, among other publications. I appreciate the opportunity to testify today on 

this important topic. 

The most powerful weapon against terrorism is intelligence. The United States is 

too big a country to rely on physical barriers against attack; the most certain defense is advanced knowledge of terrorist plans. 

In recognition of this fact, Congress amended existing surveillance powers after 

9/11 to ready them for the terrorist challenge. The signal achievement of these 

amendments, known as the Patriot Act, was to tear down the regulatory ‘‘wall’’ that 

had prevented anti-terrorism intelligence agents and anti-terrorism criminal agents 

from sharing information. The Patriot Act made other necessary changes to surveillance law as well: it extended to terrorism investigators powers long enjoyed by 

criminal investigators, and it brought surveillance law into the 21st century of cell 

phones and e-mail. Where the act modestly expands the government’s authority, it 

does so for one reason only: to make sure that the government can gather enough 

information to prevent terrorism, not just prosecute it after the fact. 

Each modest expansion of government power in the Patriot Act is accompanied 

by the most effective restraint in our constitutional system: judicial review. The act 

carefully preserves the traditional checks and balances that safeguard civil liberties; 

four years after its enactment, after constant monitoring by the Justice Department’s Inspector General and a host of hostile advocacy groups, not a single abuse 

of government power has been found or even alleged. 

This record of restraint is not the picture of the act most often presented in the 

media or by government critics, however. The Patriot Act has been the target of the 

most successful disinformation campaign in recent memory. From the day of its passage, law enforcement critics have portrayed it as an unprecedented power grab by 

an administration intent on trampling civil rights. 

As lie after lie accumulated, the administration failed utterly to respond. As a result, the public is wholly ignorant about what the law actually does. Hundreds of 

city councils have passed resolutions against the act; it is a safe bet that none of 

them know what is in it. The Committee is to be congratulated for taking the time 

to get the truth out. 

Though the charges against the Patriot Act have been dazzling in their number, 

they boil down to four main strategies. This morning, I would like to dissect those 

strategies, with particular reference to the most controversial section of the act: section 213. Section 213 allows the government to delay notice of a search, something 

criminal investigators have been allowed to do for decades. Discredit the anti-Patriot 

22

Act strategies against section 213, and you have the key for discrediting them in 

every other context. 

—STRATEGY #1: CONCEAL LEGAL PRECEDENT. 

Here’s how section 213 works: Let’s say the FBI wants to plumb Mohammad 

Atta’s hard drive for evidence of a nascent terror attack. If a federal agent shows 

up at his door and says: ‘‘Mr. Atta, we have a search warrant for your hard drive, 

which we suspect contains information about the structure and purpose of your 

cell,’’ Atta will tell his cronies back in Hamburg and Afghanistan: ‘‘They’re on to us; 

destroy your files—and the infidel who sold us out.’’ The government’s ability to plot 

out that branch of Al Qaeda is finished. 

To avoid torpedoing preemptive investigations, Section 213 lets the government 

ask a judge for permission to delay notice of a search. The judge can grant the request only if he finds ‘‘reasonable cause’’ to believe that notice would result in death 

or physical harm to an individual, flight from prosecution, evidence tampering, witness intimidation, or other serious jeopardy to an investigation. In the case of Mohammad Atta’s hard drive, the judge will likely allow a delay, since notice could seriously jeopardize the investigation, and would likely result in evidence tampering 

or witness intimidation. 

The government can delay notifying the subject only for a ‘‘reasonable’’ period of 

time; eventually officials must tell Atta that they inspected his hard drive. 

Section 213 carefully balances traditional expectations of notice and the imperatives of preemptive terror and crime investigations. That’s not how left- and rightwing libertarians have portrayed it, however. They present Section 213, which they 

have dubbed ‘‘sneak-and-peek,’’ as one of the most outrageous new powers seized by 

former Attorney General John Ashcroft. The ACLU’s fund-raising pitches warn: 

‘‘Now, the government can secretly enter your home while you’re away . . . rifle 

through your personal belongings . . . download your computer files . . . and seize 

any items at will. . . . And, because of the Patriot Act, you may never know what 

the government has done.’’

Notice the ACLU’s ‘‘Now.’’ Like every anti-213 crusader, the ACLU implies that 

section 213 is a radical new power. This charge is a rank fabrication. For decades, 

federal courts have allowed investigators to delay notice of a search in drug cases, 

organized crime, and child pornography, for the same reasons as in section 213. Indeed, the ability to delay notice of a search is an almost inevitable concomitant of 

investigations that seek to stop a crime before it happens. But the lack of precise 

uniformity in the court rulings on delayed notice slowed down complex national terror cases. Section 213 codified existing case law under a single national standard 

to streamline detective work; it did not create new authority regarding searches. 

Those critics who believe that the target of a search should always be notified prior 

to the search, regardless of the risks, should have raised their complaints decades 

ago—to the Supreme Court and the many other courts who have recognized the necessity of a delay option. 

Critics of Section 213 raise the spectre of widespread surveillance abuse should 

the government be allowed to delay notice. FBI agents will be rummaging around 

the effects of law-abiding citizens on mere whim, even stealing from them, allege 

the anti-Patriot propagandists. But the government has had the delayed notice 

power for decades, and the anti-Patriot demagogues have not brought forward a single case of abuse under delayed notice case law. Their argument against Section 213 

remains purely speculative: It could be abused. But there’s no need to speculate; the 

historical record refutes the claim. 

—STRATEGY #2: HIDE THE JUDGE. 

The most pervasive tactic used against the Patriot Act is to conceal its judicial 

review provisions. 

The cascades of anti-section 213 vitriol contain not one mention of the fact that 

the FBI can only delay notice of a search pursuant to judicial approval. It is a federal judge who decides whether a delay is reasonable, not law enforcement officials. 

And before a government agent can even seek to delay notice of a search, he must 

already have proven to a judge that he has probable cause to conduct the search 

in the first place. 

But the opponents suggest that under section 213, the government can unilaterally and for the most nefarious of purposes decide to conceal its investigative activities. Indeed, the ACLU implies that federal investigators can not only unilaterally 

delay notice, but can choose what and whether to search, without any judicial oversight: ‘‘Now, the government can . . . seize any items [from your home] at will,’’ it 

blares. But section 213 allows a warrant to issue only if a judge finds a ‘‘reasonable 

23

necessity’’ for it—the executive’s arbitrary ‘‘will’’ has nothing to do with it. This is 

hardly a recipe for lawless executive behavior—unless the anti-Patriot forces are 

also alleging that the federal judiciary is determined to violate citizens rights. If 

that’s what they mean, they should come out and say it. 

—STRATEGY #3: AMEND THE STATUTE. 

Anti-Patriot lore has it that section 213 allows the government to permanently 

conceal a search. The section ‘‘allows the government to conduct secret searches 

without notification,’’ cries Richard Leone, president of the Century Foundation and 

editor of The War on Our Freedoms: Civil Liberties in an Age of Terrorism. This conceit rewrites the section, which provides only for a delay of notice, not its cancellation. A warrant issued under section 213 must explicitly require notice after a ‘‘rea- sonable’’ period of time. This key feature of the section is completely suppressed by 

the critics. 

—STRATEGY #4: REJECT SECRECY. 

Many of the attacks on the Patriot Act emanate from a single source: the critics 

do not believe that the government should ever act in secret. Recipients of document 

production orders in terror investigations—whether Section 215 orders or national 

security letters under the 1986 Electronic Communications Privacy Act—should be 

able to publicize the government’s request, say the critics. If intelligence agents 

want to search a suspected cell’s apartment, they should inform the cell members 

in advance to give them an opportunity to challenge the search. Time and again, 

law enforcement critics disparage the Foreign Intelligence Surveillance Court, because its proceedings are closed to the public. 

This transparent approach may satisfy those on the left and right who believe 

that the American people have no greater enemy than their own government, but 

it fails to answer the major question: how would it possibly be effective in protecting 

the country? The Patriot Act critics fail to grasp the distinction between the prosecution of an already committed crime, for which probable cause and publicity requirements were crafted, and the effort to preempt a catastrophic attack on American soil before it happens. For preemptive investigations, secrecy is of the essence. 

Opponents of the Patriot Act have never explained how they think the government 

can track down the web of Islamist activity in public. Given the fact that section 

213 and other sections are carefully circumscribed with judicial checks and balances, it is in fact the secrecy that they allow that most riles the opponents. 

The recent history of government intelligence-gathering belies the notion that any 

government surveillance power sets us on a slippery slope to tyranny. There is a 

slippery-slope problem in terror investigations—but it runs the other way. Since the 

1970s, libertarians of all political stripes have piled restriction after restriction on 

intelligence-gathering, even preventing two anti-terror FBI agents in the same office 

from collaborating on a case if one was an ‘‘intelligence’’ investigator and the other 

a ‘‘criminal’’ investigator. By the late ’90s, the bureau worried more about avoiding 

a pseudo-civil liberties scandal than about preventing a terror attack. No one demanding the ever-more Byzantine protections against hypothetical abuse asked 

whether they were exacting a cost in public safety. We know now that they were. 

The libertarian certainty about looming government abuse is a healthy instinct; 

it animates the Constitution. But critics of the Patriot Act and other anti-terror authorities ignore the sea change in law enforcement culture over the last several decades. For privacy fanatics, it’s always 1968, when J. Edgar Hoover’s FBI was voraciously surveilling political activists with no check on its power. That FBI is dead 

and gone. In its place arose a risk-averse and overwhelmingly law-abiding Bureau, 

that has internalized the norms of restraint and respect for privacy. 

This respect for the law now characterizes intelligence agencies across the board. 

Lieutenant General Michael V. Hayden, the nominee for Principal Deputy Director 

of National Intelligence, told the Senate Select Committee on April 14 that the challenge for supervisors in the National Security Agency was persuading analysts to 

use all of their legal powers, not to pull analysts back from an abuse of those powers. 

It is because of this sea-change in law enforcement culture that Patriot Act critics 

cannot point to a single abuse of the act over the last four years, and why they are 

always left to argue in the hypothetical. 

In conclusion, the Patriot Act is a balanced updating of surveillance authority in 

light of the new reality of catastrophic terrorism. It corrects anachronisms in law 

enforcement powers, whereby health care fraud investigators, for example, enjoyed 

greater ability to gather evidence than Al Qaeda intelligence squads. It created no 

novel powers, but built on existing authorities within the context of constitutional 

24

checks and balances. It protects civil liberties while making sure that intelligence 

analysts can get the information they need to protect the country. The law should 

be reenacted.

Mr. COBLE. Mr. Barr. 

TESTIMONY OF THE HONORABLE BOB BARR, FORMER 

MEMBER OF CONGRESS, ATLANTA, GEORGIA 

Mr. BARR. Thank you very much, Mr. Chairman. And the fact 

that you’re here today, despite some medical problems, is a very 

loud tribute to your concern for the Constitution and for open and 

objective and extensive debate on important constitutional issues 

such as those included in these sections in the USA PATRIOT Act. 

And I personally very much appreciate your being here and holding 

this hearing, as well as the other Members of the Committee. And, 

I appreciate very much their very kind words for my former service 

on this very Subcommittee that I consider one of the high points 

in my public career. I very much appreciate them being here today 

and conducting these hearings. 

I do have, Mr. Chairman, a fairly extensive set of written remarks which I have sent to the Subcommittee, and ask that they 

be included in the record of these proceedings. 

Mr. COBLE. Without objection. 

Mr. BARR. What I’d like to do in the few minutes allowable for 

opening statements, Mr. Chairman, is put this in historical context, 

do away with some of the hyperbole and misplaced facts of the 

prior witness, and let the Subcommittee know what it is that I and 

a number of others from across the ideological spectrum, who care 

just as much as all of the witnesses here today and as Members 

of this Subcommittee about the Constitution, exactly what it is that 

we’re proposing and what we’re not proposing. 

The issue, Mr. Chairman, of notice for searches goes back long 

before the last couple of decades; it goes back even long before our 

own Constitution, including its Bill of Rights, was adopted. It goes 

back at least 300 years before our Constitution. The notice that—

or the principle that notice should be given before the sovereign 

could invade a man’s castle, in the words of James Otis, was something very sacrosanct, a notion that the privacy of that dwelling—

and the notion that before that the Government could invade that 

dwelling, or later that business, and gather evidence against that 

or another person without giving notice was very much important 

and I think is engrained in the fourth amendment. 

Indeed, no less a constitutional scholar than Justice Clarence 

Thomas recognized recently that the notice provision is indeed an 

important underpinning of the reasonableness basis for the fourth 

amendment. 

So the notion that we’re talking about some radical concept here 

that would harm our Nation when we’re talking about the norm 

being notice is not radical at all; it is very consistent with a long 

history both of the philosophy underlying our Bill of Rights as well 

as judicial interpretations thereof. 

The courts, as has been correctly stated by prior witnesses, have 

never held that noticeless searches are per se okay. Quite the contrary. In the two instances in which courts of appeal, the second 

and ninth circuit, have ruled on the issue of noticeless searches, 

25

they simply address the issue of the reasonableness of the delay in 

the notice. And indeed, the Supreme Court has not ruled on this 

issue. In the Delia case, 1979, that was simply a case not involving 

a search for or a seizure of evidence, but simply that in the case 

where the Government wished to properly place a listening device, 

a bug, in a location, it made no sense for the Government to announce that it was doing that. That’s very different from a search 

and seizure of evidence. 

What exactly is it that the USA PATRIOT Act did in its section 

213? For the very first time in our Nation’s history, it established 

a legal basis on which the Government could, in defined circumstances, execute a warrantless search, a so-called sneak and 

peek search. I, and most others who find some fault with that provision, don’t contest that basic premise. Yes, there are instances in 

which the Government needs to conduct a search without providing 

contemporaneous notice; but we do believe that those circumstances ought to be very carefully limited to ensure that they 

remain very much, both in principle and in practice, not the norm, 

but the exception to the general rule. And we also believe that 

there needs to be defined limitations in terms of time for the execution of noticeless searches and seizures of evidence. 

Therefore, what we are proposing, because section 213 is deficient in both of those two areas—it provides no definitive endpoint 

for a warrant noticeless search, and it provides a sort of general 

catch-all phrase that to deny the Government the use of a 

noticeless search would unduly delay the trial—that’s not an appropriate constitutional basis on which to take away that important 

right for notice, Mr. Chairman. Therefore, what we are proposing 

is not the preposterous hypothetical that the previous witness indicated of having to tell Muhammad Atta that the Government is 

there to look at his hard drive. Nobody reasonably is proposing 

that, and the organizations with which I work are not. What we 

are simply doing, Mr. Chairman, is taking the existing framework 

in section 213 and providing a change in only two areas, one, a definitive endpoint for the noticeless search, with extensions; and secondly—and this is most important, I think, Mr. Chairman—I apologize for going on just slightly longer than the time, but this is most 

important—we clearly recognize that in those instances in which to 

deny the Government the ability to conduct a noticeless search 

would seriously harm the national security, yes, the Government 

ought to be able to proceed. And the Safe Act provision, which we 

commend to this Subcommittee and which some Members, Mr. 

Conyers and Mr. Flake, I believe, are already cosponsors, does that. 

It does not take away, we are not proposing to take away, the 

section 213 authority, we are simply proposing that there be some 

definitive limitations, and that the general catch-all phrase be limited so that it clearly allows, in national security cases, but doesn’t 

become simply a bureaucratic tool for the Government to use. 

Mr. COBLE. I thank the gentleman. 

[The prepared statement of Mr. Barr follows:]

PREPARED STATEMENT OF THE HONORABLE BOB BARR

Chairman Coble, Ranking Member Scott, Members of the Subcommittee, thank 

you again for inviting me to testify on the PATRIOT Act. You deserve applause for 

your oversight today. 

26

The results of the debate over the extension of the PATRIOT Act’s more intrusive 

provisions will define this Congress in our Nation’s history. Will Congress correct 

some of the provisions that were hastily passed just days after the tragic attacks 

of 9/11 and bring the statute back in line with the command our nation’s charter, 

our Constitution? Will Congress adopt safeguards to properly focus our law enforcement efforts on terrorists rather than ordinary Americans? 

I am here today because I am confident that, working together, we can do just 

that and honor both the letter and the spirit of our Fourth Amendment freedoms 

by bringing the PATRIOT Act back in line with the Constitution. 

My name is Bob Barr. From 1995 to 2003, I had the honor to represent Georgia’s 

Seventh District in the United States House of Representatives, serving that entire 

period with many of you on the House Judiciary Committee. 

From 1986 to 1990, I served as the United States Attorney for the Northern District of Georgia after being nominated by President Ronald Reagan, and was thereafter the president of the Southeastern Legal Foundation. For much of the 1970s, 

I was an official with the CIA. 

I currently serve as CEO and President of Liberty Strategies, LLC, and Of Counsel with the Law Offices of Edwin Marger. I also hold the 21st Century Liberties 

Chair for Freedom and Privacy at the American Conservative Union, consult on privacy issues with the American Civil Liberties Union, and am a board member of 

the National Rifle Association. 

I am also the Chairman of a new network of primarily conservative organizations 

called Patriots to Restore Checks and Balances, which includes the American Conservative Union, Eagle Forum, Americans for Tax Reform, the American Civil Liberties Union, Gun Owners of America, the Second Amendment Foundation, the Libertarian Party, the Association of American Physicians and Surgeons, and the Free 

Congress Foundation. 

You have asked me to testify today about sections 201, 202, 223, and 213 of the 

PATRIOT Act. I will focus the bulk of this testimony on section 213, the ‘‘sneak and 

peek’’ provision, and reserve some brief comments on the other provisions at the end 

of this written statement. 

Section 213 of the PATRIOT Act authorizes ‘‘sneak and peek,’’ or ‘‘delayed notice,’’

search warrants in all criminal cases—without limitation to cases involving terrorism or a foreign agents—where the federal government says notice of the search 

warrant would result in destruction of evidence, the endangerment of an individual’s life or physical safety, flight from prosecution, intimidation of a witness, or serious jeopardy to a criminal investigation. The Act sets no limit on the length of 

time such a search of a person’s home or business can be kept secret. Section 213 

is not subject to sunset this year but should be amended and should be given a new 

sunset as amended, if it is not repealed. 

I have grave concerns about covert searches of people’s homes or businesses in 

general and about the design of this statute in particular. I would hope the Members of the Judiciary Committee would agree with me on one fundamental premise 

of American law. The idea of strangers, including government agents, secretly entering the privacy of our homes and examining our personal possessions is a threat 

to the fundamental freedoms our Fourth Amendment was written to protect. 

Secret searches of American homes and businesses must not be allowed to become 

routine. They must be closely circumscribed. Although one might imagine a rare circumstance where a short delay in notice might be compelling and even pass scrutiny 

under the Fourth Amendment, secret searches should not be allowed to become a 

garden-variety tool of law enforcement. The PATRIOT Act, however, permanently 

enshrined secret searches of American homes and businesses in our law under the 

guise of anti-terrorism efforts. 

As members of the House Judiciary Committee, you know well that the House Judiciary Committee’s original marked-up version of the PATRIOT Act did not include 

statutory authority for secret criminal searches, although the Administration had 

asked for it. The ‘‘sneak-and-peek’’ provision was imposed on you by the Senate at 

the last minute in a substitution of the bill this Committee produced. Respectfully, 

I believe this addition to the bill was a serious mistake, but there was no time then 

to correct it. There is time now. 

Giving federal law enforcement statutory authority for secret criminal search warrants in ordinary criminal cases has nothing to do with ‘‘Uniting and Strengthening 

America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism,’’ as the PATRIOT Act was pitched to the American people. We all know that. 

As the American people have come to understand that, they too have expressed 

strong reservations about the use of such extraordinarily intrusive and secretive 

powers, especially where such searches are not used to obstruct terrorist attacks. 

27

1 18 U.S.C. § 3103a(b)(3). 2Oversight of the USA Patriot Act: Hearing Before the Senate Judiciary Committee, 109th 

Cong. (2005) (Attorney General Gonzales Responding to Senator Feingold). 3Stephen D. Lobaugh, Congress’s Response to September 11: Liberty’s Protector, 1 Geo. J.L. 

& Pub. Pol’y 131, 143 (Winter 2002) (stating, ‘‘The Supreme Court has not ruled on the constitutionality of ‘‘sneak-and-peek’’ searches, and only two United States Courts of Appeals have 

heard such cases.’’). A third case, United States v. Simons, 206 F.3d 392 (4th Cir. 2000), relied 

upon by the Justice Department did not involve a criminal search warrant that the issuing 

judge approved be kept secret at the time the warrant was executed and the lower court ultimately found that law enforcement did not deliberately disregard the rules in failing to leave 

notice of the warrant. 4 United States v. Freitas, 800 F.2d 1451, 1456 (9th Cir. 1986). 5 United States v. Villegas, 899 F.2d 1324, 1339 (2nd Cir. 1990). 6Dalia v. United States, 441 U.S. 238 (1979). 7Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.8(a) (4th 

ed. 2004). 8 Id. 

If Congress chooses to continue to give statutory authority for these covert-entry, 

delayed-notification searches, they should be carefully limited to ensure that what 

should be the rarest of exceptions does not become the rule. The PATRIOT Act, however, has inadequate controls. And, even though the sneak and peek authority is 

not set to sunset by the end of the year, I urge you to support the addition of sound 

and modest checks on the use, and also against the abuse, of this secret search authority. 

Section 213 of the PATRIOT Act, as codified at 18 U.S.C. § 3103a (2004), contains 

at least two fundamental flaws. First, it fails to set a statutory time limit on secret 

searches. The statute requires notice of the execution of a sneak and peek warrant 

within a ‘‘reasonable period of its execution,’’ but sets no time limit on when such 

notice is required.1

From the outset, critics of the PATRIOT Act have warned that such openendedness would result in these warrants being used to justify the indefinite delay 

of notice. Attorney General Gonzales recently testified that at least six of the secret 

searches that have been authorized under section 213 were authorized to be secret 

indefinitely, even though the Department has simultaneously said that a secret 

search under section 213 cannot be kept secret forever. The Attorney General has 

also testified that the ‘‘average’’ length of time a search is kept secret is between 

30 and 90 days, but the government has not shared the details of most of its secret 

searches with the American people and has shared only limited information about 

a few carefully selected ones it wanted to discuss.2

The indeterminateness allowed by the statute as it currently exists is directly contrary to the rulings in the only two circuit courts to fully consider the issue of a 

lower court authorizing criminal search warrants with delay in notification allowed 

before the PATRIOT Act.3 In the first such case, a circuit court held that ‘‘in this 

case the warrant was constitutionally defective in failing to provide explicitly for notice within a reasonable, but short, time subsequent to the surreptitious entry. Such 

a time should not exceed seven days except upon a strong showing of necessity.’’ 4

The only other circuit court to consider a lower court-approved delay in notice of 

a search, the Second Circuit, insisted on a specific time period for notice of a secret 

search, holding that notice could be delayed for only seven days unless there were 

fresh showings of cause for extensions.5 Prior to the PATRIOT Act and since it 

passed, the Supreme Court has not issued any decisions endorsing the constitutionality of secret criminal search warrants, except in the limited context of warrants authorizing the installation of devices (i.e., bugs) for audio surveillance specifically authorized by statute, a decision the Department wrongly relies on as authority for its position that the Court has approved ‘‘sneak and peek’’ searches for general purposes.6

The idea that giving an American citizen notice that their home or business is 

being searched by the police is central both to the spirit and to the letter of the Constitution. Indeed, the principle that law enforcement should ‘‘knock and announce’’ their presence before executing a search warrant was well entrenched in the common law by the time of the Constitution’s ratification, going back perhaps an additional 300 years before the American Revolution.7

Notably, the dreaded general warrants or ‘‘writs of assistance’’ wielded by the 

British crown’s customs inspectors in colonial America actually ‘‘required that notice 

be given before entry was made, and reported instances of [their] use included notice.’’ 8 These searches were reviled not because they were conducted covertly under 

cover of night, but because they did not require any particularity or probable cause 

before issuance. The Supreme Court has relied on the original intent of the Framers 

in deciding that notice of a search is a basic aspect of whether a search is ‘‘reasonVerDate 0ct 09 2002 14:17 Jun 27, 2005 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6621 G:\WORK\CRIME\050305\21023.000 HJUD1 PsN: 21023
28

9 514 U.S. 927 (1995). 

10Oversight of the USA Patriot Act, supra note 3. 11The USA Patriot Act of 2001: Hearing Before the United States Senate Select Committee on 

Intelligence, 109th Cong. (2005) (testimony of Attorney General Alberto Gonzales). 

able,’’ as expressly required by the Constitution. In Wilson v. Arkansas, Justice 

Thomas wrote for a unanimous court that the ‘‘common-law ‘knock and announce’ principle forms a part of the reasonableness inquiry under the Fourth Amendment.’’ 9

Accordingly, the scope of permissible delay under section 213 of the PATRIOT Act 

is far broader than that contemplated by the appellate courts that examined sneak 

and peek authority prior to the PATRIOT Act. As such, supporters of modest PATRIOT Act reform have asked that Congress precisely delimit the period of delay. 

The bipartisan SAFE Act would create a time limit for the secrecy of such searches. 

The SAFE Act limits the initial period of delay to seven days, and allows that period 

to be renewed for good cause (for additional seven-day periods in the House version, 

and for 21-day periods in the Senate version). I commend Congressmen Flake and 

Conyers for co-sponsoring this legislation. 

I would note that the notice, or knock and announce, principle has been allowed 

by the courts to give way to countervailing law enforcement interests in extraordinary circumstances, which leads me to the second fundamental flaw of section 

213. The operative word here is extraordinary, something that the PATRIOT Act ignores by authorizing secrecy under circumstances that too many criminal cases 

might meet. This flaw is more substantively dangerous than the open-ended notice 

provision of section 213 because it telegraphs to law enforcement agents that they 

can relatively easily get approval for a secret search. 

Specifically, 18 U.S.C. § 3103a(b)(1), enacted by the PATRIOT Act, requires an 

agent seeking a sneak and peek warrant to show that notice would have an ‘‘adverse result’’ as defined by 18 U.S.C. § 2705, to include destruction of evidence, danger to a person, flight from prosecution, witness tampering or ‘‘otherwise seriously 

jeopardizing an investigation or unduly delaying a trial.’’ Leaving aside the issues 

of whether secret searches should be allowed generally in cases far afield from terrorism, the fifth provision—the catch-all exception—is the most problematic. 

Congress should eliminate the catch-all exception and circumscribe section 213. 

On the evening before the Senate Judiciary Committee’s first hearing in preparation 

for the sunsets debate, the Justice Department released new statistics showing a 

marked increase in the use of these secret searches. This, by the way, is another 

reason Congress should impose a sunset on section 213 so that it will not become 

a permanent fixture in our criminal system, and also give the Executive Branch 

some incentive to account for its use of this extraordinary power. 

Between November 2001 and April 2003, the authorities used section 213 of the 

PATRIOT Act 47 times, a rate of 2.7 a month. Between April 2003 and January 

2005, they requested and executed 108, a rate of 4.7 a month. At the Senate Judiciary Committee hearing, Chairman Specter disclosed that in a closed-door briefing 

DOJ admitted that 92 of the 155 sneak and peek searches that have been authorized since the PATRIOT Act have been under the vague ‘‘catch all’’ section, that 

there is ‘‘reasonable cause to believe that providing immediate notification of the 

execution of the warrant may’’ jeopardize an investigation.10 That’s nearly 60% of 

the time. 

The use of the catch-all will undoubtedly grow dramatically as the spotlight on 

the PATRIOT Act begins to fade. Arguably law enforcement could claim immediate 

notice of a search would jeopardize an investigation in many, perhaps most, criminal cases. Notably, agents have never been turned away in a request for a sneak 

and peek warrant. 

One must recall exactly what happens when federal agents use section 213. The 

government obtains a search warrant that allows agents to break into a private residence, enter under cover of darkness, conduct an extensive search of the premises, 

retain digital or paper files, document the search with photographs, seize tangible 

property like DNA, and then leave. 

In testimony before the Senate Select Committee on Intelligence, Attorney General Gonzales recently selected example of where the catch-all definition of ‘‘adverse 

result’’ was used to secure a sneak and peek warrant.11 Although the scenario was 

ostensibly meant to illustrate the need for retaining the open-ended justification for 

sneak and peek warrants, I believe it actually showcased the problem with this provision: 

In this case, the Justice Department obtained a delayed-notice search warrant for 

a Federal Express package that contained counterfeit credit cards. At the time of the 

search, it was very important not to disclose the existence of the federal investigation, 

29

12DEPARTMENT OF JUSTICE, DELAYED NOTIFICATION SEARCH WARRANTS: A VITAL AND TIME- HONORED TOOL FOR FIGHTING CRIME, Sept. 2004. 

as this would have exposed a related Title III wiretap that was ongoing for major 

drug trafficking activities. 

An organized crime/drug enforcement task force, which included agents from the 

DEA, the IRS, the Pittsburgh Police Department and other state and local agencies 

was engaged in a multi-year investigation that resulted in the indictment of the largest drug trafficking organization ever prosecuted in the Western District of Pennsylvania. 

While the drug trafficking investigation was ongoing, it became clear that several 

leaders of the drug trafficking conspiracy had ties to an ongoing credit card fraud 

operation. An investigation into the credit card fraud was undertaken and a search 

was made of a Federal Express package that contained fraudulent credit cards. 

Had notice of the Federal Express search tied to the credit card fraud investigation 

been immediately given, it could have revealed the ongoing drug trafficking investigation prematurely, and the drug trafficking investigation might have been seriously jeopardized. Even modest delay would not have been available if this provision 

of Section 213 were deleted. 

I would urge the Members of the Subcommittee to question the Attorney General 

at more length about this example. 

First, I think it notable that this case does not involve terrorism at all. Although 

the Justice Department continues to argue that those of us who voted for the PATRIOT Act knew full well that this was an omnibus crime measure, not just a terrorism bill, I think that is disingenuous. Attorney General Ashcroft was quite clear 

in his admonitions that delay on passage of the PATRIOT Act would lay the blame 

for any future terrorist attack on our heads. Yet, as we saw in the Justice Department’s field report on the use of section 213, released in September 2004, it appears 

that the government is using delayed-notification search warrants primarily in 

criminal cases.12

Second, I do not see how this example bolsters the case for retaining the catchall definition of ‘‘adverse result’’ for sneak and peek warrants. Could the agents in 

this case have made a solid argument that notice of the search would have resulted 

in the destruction of evidence, flight from prosecution, or intimidation of persons or 

witnesses? If so, they could still have obtained a delay under more exacting rules. 

If not, what did they believe would be the result of providing notice? 

Fixing this failing in section 213 is not difficult. The SAFE Act, in both the Senate 

and the House, would remove the catch-all provision. I urge the Subcommittee to 

support this modest improvement to the PATRIOT Act. 

Finally, I would note the increasing use of sneak and peek searches. One of the 

primary reasons we insisted on including sunset provisions in the PATRIOT Act 

was out of fear that by breaking down checks and balances on government authority, we would encourage ‘‘mission creep’’ and the use of these broadened authorities 

in contexts far afield from counter-terrorism. 

And, while I acknowledge the Justice Department’s argument that the use of delayed-notification search warrants only represents a small fraction of the tangible 

searches conducted by federal authorities annually, I fear my concerns are not assuaged. Sneak and peek warrants are inherently problematic. They do not give you 

a chance to examine the warrant before execution for mistakes or to challenge it. 

While I think anyone knowledgeable about the practical nature of law enforcement, criminal investigation and counter-terrorism can contemplate the need for 

this special power under very special circumstances, the PATRIOT Act really threatens to make what should be an extraordinary power an ordinary power. And for 

that reason, I ask you to support at least the modest changes to the language of 

the law embodied in the SAFE Act. 

Additionally, I would note the there is incomplete information about how this 

power has been used. We know it has been used at least 155 times as of this January. What we do not know, and what the government isn’t telling the Judiciary 

Committee or the American people, is:

• how many times section 213 has been used in terrorism cases, as opposed to 

more ordinary crimes;

• how many times it has been used against citizens, versus foreign suspects;

• how many times the secret warrants have led to prosecutions or convictions 

and how many of those were in terrorism cases; and

• what happens to the contents of such secret searches (taking photos of people’s homes, copies of their computers or their even their DNA samples) if no 

charges are brought.

30

I will now turn briefly to the other sections that are a subject of this hearing. 

Section 223, which provides a civil remedy for victims of unlawful government 

surveillance, is a common-sense privacy protection measure and should be renewed. 

However, victims of secret surveillance abuse will often not know of such abuse and, 

as a result, the usefulness of section 223 is limited. Nevertheless, while it may be 

rare for an innocent person to discover they have been the victims of unlawful government surveillance, in such cases there should be a remedy, and section 223 provides one. It should be made permanent. 

Sections 201 and 202 of the PATRIOT Act added new terrorism-related crimes to 

the list of criminal wiretapping predicates under Title III. While any expansion of 

federal wiretapping powers must give small government conservatives some pause, 

I personally regard these provisions of the PATRIOT Act as mainly beneficial to law 

enforcement and not unduly intrusive on the privacy of the American people. Title 

III requires a court order from a regular federal district court based on probable 

cause of crime, the time-honored Fourth Amendment standard that is lacking in 

surveillance orders approved by the special court that administers the Foreign Intelligence Surveillance Act (FISA). As a result, Title III surveillance is much less susceptible to abuse than FISA surveillance. The new wiretapping predicates listed in 

sections 201 and 202 are serious federal crimes. In my personal opinion, Congress 

should make sections 201 and 202 permanent. 

I look forward to your questions. Thank you.

Mr. COBLE. I thank all of the Members. 

Now, folks, we apply the 5-minute rule to ourselves as well, so 

if you all could keep your responses as tersely as possible, that way 

we can cover more ground. 

And, Mr. Sullivan—strike that. 

We have been joined by the distinguished gentleman from California. Dan, good to have you with us. No one else is here. 

Mr. Sullivan, if section 201 of the USA PATRIOT Act is allowed 

to expire, is it true that criminal investigators could obtain a courtordered wiretap to investigate mail fraud and obscenity offenses on 

the one hand, but not offenses involving weapons of mass destruction? Is that correct? 

Mr. SULLIVAN. That’s a correct statement, Mr. Chairman. 

Mr. COBLE. That was a rhetorical question. I thought that was 

right. Do you want to elaborate just a minute on it? 

Mr. SULLIVAN. Well, certainly. Congress essentially has provided 

a number of predicate offenses in which electronic surveillance 

would be allowed. The circumstances of section 201 included offenses that traditionally terrorists have used prior to the passage 

of section 201, and the Government was not permitted to essentially use electronic surveillance for those particular offenses. 

Mr. COBLE. Thank you, sir. 

Mr. Barr, your distinguished tenure as U.S. Attorney in Georgia, 

at any time did you or any of your assistants file an application for 

a delayed notification of a search warrant? 

Mr. BARR. I don’t recall specifically, Mr. Chairman. It wouldn’t 

surprise me if there were circumstances such as many of those very 

appropriate examples laid out in the former—the current Attorney 

General’s testimony and the report submitted to the Congress. It 

wouldn’t surprise me if my office did under such circumstances as 

those. I don’t specifically recall any instances, Mr. Chairman. 

Mr. COBLE. I thank you. 

Mr. Rosenberg, section 213 requires that notice be given to those 

against whom a search warrant was executed within a reasonable 

amount of time. Now I’ve known that as few days as 7, and I think 

180 at one point. Comment what, in your opinion, is reasonable 

and how oftentimes a judge might come to that conclusion. 

31

Mr. ROSENBERG. Thank you Mr. Chairman for the question. That 

is a very fact-specific inquiry. 

In every case we go to the judge, and we ask her for what we 

believe we need in a particular investigation, whether it’s drugs or 

mob or child pornography. So 7 days may well be all we need in 

a particular case, and all we get. In another case it may be 3 weeks 

or 2 months. And so each time we will go to the judge and attempt 

to demonstrate not just probable cause for the search, but reasonable cause for the delay based on the facts and circumstances. 

Mr. COBLE. I thank you. 

Ms. Mac Donald, I am told—and I have not seen it—but I am 

told that the ACLU has run a television advertisement claiming 

that section 213 of the USA PATRIOT Act allows law enforcement 

to search homes, ‘‘without notifying us.’’ Now, are you familiar with 

that ad? 

Ms. MAC DONALD. Well, that sounds very similar to a written 

copy that they produced soon after the PATRIOT Act was passed. 

Mr. COBLE. And if, in fact, that was disseminated, I believe that 

would be an inaccurate description of section 213; would it not? 

Ms. MAC DONALD. It’s a classic example, Chairman, of the strategies used against the act to rewrite it, to amend the statute by saying—ignoring the fact that a judge has to approve delayed notice, 

and the fact that notice is only delayed, it is not a permanent condition that the Government is asking for. 

Mr. COBLE. I thank you. 

Bob, I think I have one—time for one more question. 

In your testimony, Mr. Barr, you briefly mention that you support making permanent sections 201 and 202, and 223 of the PATRIOT Act. Explain to us why you are comfortable with that position. 

Mr. BARR. Thank you, Mr. Chairman. 

With regard to section 201 and 202, which simply add new or 

added new terrorism-related requirements to the list of criminal 

wiretapping predicates under title III, I think, the offenses that 

have been and would continue to be included if that provision is 

extended are appropriate. 

We also understand, of course, as this Committee does, that title 

III includes within its provisions many safeguards on the extent to 

which and the way in which a title III wiretap, so to speak, is carried out. So there are plenty of safeguards in the statute already. 

Section 223, which provides a civil remedy for victims of unlawful Government surveillance, I think, is a common-sense privacy 

measure that should be renewed. And I think there is also—Congress acted correctly initially. We’ve looked at those, I’m sure the 

Subcommittee and the full Committee will look carefully at them, 

and we have no problem with those being reauthorized. 

Mr. COBLE. Thank you. My time has expired. 

The gentleman from Virginia. 

Mr. SCOTT. Thank you. 

Ms. Mac Donald, I was intrigued with your use of the word ‘‘propaganda’’ because we’ve been having some trouble trying to get 

some straight answers from some of the other witnesses, and there 

is exaggeration of some of the provisions. We haven’t discussed this 

provision today, but the FISA wiretaps and some of the expanded 

32

powers under the Foreign Intelligence Surveillance Act, everybody 

comes and testifies without exception about the use in terrorism, 

terrorism, terrorism. And it is almost like pulling teeth to try to 

get them to acknowledge that FISA is not just terrorism; in fact, 

it can be used even if crimes are not involved, if it’s involving generic foreign intelligence, conduct of foreign affairs. 

And when you talk about hiding the judge, they say, yes, but we 

have to get probable cause. And then you say, probable cause of 

what? You don’t have to find probable cause of a crime, just probable cause that the person you’re starting the wiretap with is an 

agent of a foreign government. There doesn’t have to be any crimes 

involved. 

So I agree with you that there is a lot of misinformation, and I 

appreciate your testimony today. 

Let me ask you a specific question. You indicated, I think, that 

you could not have one of these secret searches where the delay is 

permanent, where it is an indefinite secret; is that your testimony? 

Did the Attorney General say that six of the secret searches were 

authorized by a court to be secret indefinitely? 

Ms. MAC DONALD. I’m not aware of that. There are possibilities 

for continuing delay; but again, that is a fact-based determination, 

and I think that——

Mr. SCOTT. It could be permanent, you may never know. You 

may never know. 

Ms. MAC DONALD. In a completely hypothetical scenario, I suppose, if you have an ongoing investigation——

Mr. SCOTT. Let’s ask Mr. Rosenberg. Any cases where the 

search—where the court has authorized an indefinite secret? 

Mr. ROSENBERG. To my knowledge, Mr. Scott, if you’re talking 

about delayed notice searches apart from FISA, notice is always 

given, always. Now, the investigation may run a long time——

Mr. SCOTT. Indefinitely. 

Mr. ROSENBERG. Well, no, not indefinitely, a long time. And at 

the end of that time——

Mr. SCOTT. You’re not aware of any cases where the court has 

authorized an indefinite secret? 

Mr. ROSENBERG. Well, let me say it this way: At the end of the 

investigation, notice will be given. Now, there may be a case——

Mr. SCOTT. Or, as a matter of fact, the end of the war on terrorism. That’s when enemy combatants get out of jail. 

Mr. ROSENBERG. There may be a case where a judge leaves it 

open and requires the assistant United States attorney to come 

back, and often we do. Often we come back and ask for permission 

again. 

Mr. SCOTT. Well, we will get more specific information on these 

six cases. 

Mr. Rosenberg, when you use the word ‘‘judge,’’ are you using 

United States district court judge and United States magistrate 

interchangeably? 

Mr. ROSENBERG. Yes, sir. 

Mr. SCOTT. Okay. When you go to get one of these warrants, does 

the U.S. Attorney or an assistant U.S. Attorney go, or does the FBI 

go by itself? 

33

Mr. ROSENBERG. That practice will vary. In the Eastern District 

of Virginia, where I was an assistant U.S. Attorney, both in Norfolk and Alexandria, the practice was typically—and I believe in Alexandria all the time—for the assistant U.S. Attorney to accompany the agent to the magistrate judge’s chambers when the warrant was sworn out. 

Mr. SCOTT. In the normal search you have some checks and balances. You have to announce so the person being searched has an 

opportunity to contest it. If it is overly broad, they can comment 

on that, and if it’s out of bounds, they can—you’re subject to the 

exclusionary rule. If you have several searches, and only one of 

them produces any evidence, what is the sanction against not notifying those for whom you’re not using evidence? 

Mr. ROSENBERG. Well, let me just pick at one part of the 

premise. Delayed notification searches are normal searches, they 

just have delayed notice. But in all cases, Mr. Scott, in all cases, 

if there is a criminal proceeding—and often there is at the end—

then the subject of the search can challenge it in all the ways——

Mr. SCOTT. If there is no criminal proceeding, if you didn’t find 

anything in the search——

Mr. ROSENBERG. Then, for instance, under rule 41 of the Federal 

Rules of Criminal Procedure, the subject of the search can move for 

the return of his property. 

Mr. SCOTT. If there is nothing to return. Well, they don’t know, 

if you didn’t let them know. 

Mr. ROSENBERG. But you do let them know. You always let them 

know. 

Mr. SCOTT. What is the sanction for not letting them know? 

Mr. ROSENBERG. You mean for willfully violating a Federal rule 

of criminal procedure? I’m not an expert here, but I imagine there 

would be some civil remedy. 

Mr. SCOTT. For evidence that is excluded in court under the exclusionary rule which suggests that some violation occurred, are 

you aware of any police officer or prosecutor that has ever been 

prosecuted for the illegal search, other than being embarrassed 

with the exclusionary rule? 

Mr. ROSENBERG. Not all bad searches are illegal searches, sir; 

some bad searches are made in good faith, and evidence is suppressed even though there is no illegality. 

Mr. SCOTT. If you have a bad search and don’t notify them, what 

is the sanction? 

Mr. ROSENBERG. You do notify them; you notify in all cases. 

Mr. SCOTT. But there is no sanction if you don’t. 

Mr. ROSENBERG. Again, if you don’t notify—if you willfully violate the Federal Rules of Criminal Procedure, Mr. Scott, then I 

would imagine at the end—it hasn’t happened to me, I have never 

willfully violated the rules of criminal procedures as a prosecutor—

that there would be a remedy for the subject of the search. 

Mr. COBLE. The gentleman’s time has expired. The gentleman—

in order of appearance, the gentleman from Ohio Mr. Chabot is recognized for 5 minutes. 

Mr. CHABOT. Thank you, Mr. Chairman. I want to thank you for 

holding this important hearing. 

34

I want to first join my colleagues in welcoming former Congressman Bob Barr; we are very interested in his testimony. We may 

not agree with everything, as we didn’t necessarily agree on this 

Committee all the time, but it was an honor to serve with Congressman Barr here. And we sat next to each other for about 8 

years on this Committee and on the full Judiciary Committee and 

went through all kinds of things together, from impeaching Presidents to debating about whether or not we ought to put cameras 

in the Federal courtrooms, and a whole range of other issues. 

So it’s great to have you back today, Bob. Bob, we wish you best 

in the future as well. I would like to see you back up here someday 

if the cards are right. 

Let me, if I can, turn to you at this point Ms. Mac Donald. And 

Mr. Scott was cross-examining you there with some questions and 

things, and because of time, oftentimes witnesses don’t get a 

chance to respond to the extent that they might like to. If there are 

any additional responses that you might like to make to any of the 

points that my friend was making, I would be happy to give you 

that time now. 

Ms. MAC DONALD. Well, I think, again, we need to understand 

that these are members of the Federal judiciary who have been 

sworn to uphold the Constitution that are ruling on whether delay 

is reasonable in a particular search. And again, this is after already having found probable cause to conduct the search in the 

first place. 

There is a second step that the judge has to go through in approving a delayed notice search, which is, is there grounds, certain 

exigent circumstances that make delay reasonable, such as witness 

intimidation or obstruction of evidence. 

It seems to me we have to assume that the checks and balances 

that the Founders provided in setting up the Constitution in the 

first place, the most important of which is judicial review, will 

work in this situation. I don’t understand how you can possibly 

conduct a preemptive investigation, whether it’s a criminal investigation or a terror investigation, without a delayed notice capacity. 

It is logically impossible to preemptively investigate either a crime 

or terrorism and notify the subjects of the search. 

Mr. CHABOT. Thank you. 

Let me ask you another question. The Knoxville News Sentinel 

in Tennessee reported that during the jury deliberation process in 

the case of Hafiz and Torres-Luna that ultimately found the two 

men not guilty of cocaine possession and distribution, as well as 

multiple Federal firearm violations, the jury posed a PATRIOT Actrelated question to the judge. The question asked, if the defendants 

were being tried under the PATRIOT Act—in a handwritten note 

to the judge added that the PATRIOT Act had been ruled unconstitutional in four States and several municipalities. Judge Leon Jordan responded simply, ‘‘no’’. Could you comment on that story? 

Ms. MAC DONALD. That’s classic. You found a classic example. 

The ACLU and other groups have done a bang-up job of getting 

misunderstanding out there. Everybody thinks they’re under PATRIOT Act investigations. They think the war in Afghanistan is 

being conducted under PATRIOT Act powers. 

35

The PATRIOT Act was a narrow act designed for one thing and 

one thing only, intelligence. It acknowledged the fact that our only 

weapon against terrorist is intelligence. We cannot target-harden 

our way into safety. 

And so when it comes to bringing surveillance powers into the 

21st century, acknowledging the existence of cell phones and email, the PATRIOT Act does that, tearing down the wall that prevented two FBI agents on the same al Qaeda squad from talking 

to each other, the PATRIOT Act tore down that wall. It is narrow; 

it is not something that is affecting the entire country. And again, 

if there had been abuses under this act, believe me, Congressman, 

we would have heard about it. 

Mr. CHABOT. And that’s what I wanted to get into with the little 

time I have remaining. I know, Mr. Rosenberg, I think, Mr. Sullivan, you also indicated, that there weren’t any examples of PATRIOT Act abuse, and not a single example of abuse of civil rights 

and that sort of thing, and I’ve heard that before. 

Bob, do you have any cases or are there any examples that 

you’ve heard that you would believe that would counter that? What 

would be your response to that? 

Mr. BARR. It’s, of course, very difficult to say, Mr. Chabot. For 

one thing, section 213 searches are conducted in secret, so it’s very 

difficult to know what abuses there might have been, if any. So it’s 

virtually impossible, at least until the end of these investigations 

when—and I certainly take the Department of Justice at its word, 

that at the end of the investigations, everybody will be notified. 

The problem is, Mr. Chabot, we know for a fact, according to the 

Attorney General’s testimony, that in at least I believe six of the 

instances in which the Government allows that it has sought the 

section 213 authority to conduct a search without notice, that the 

delayed notice has gone on indefinitely. So it’s virtually impossible 

to say, Mr. Chabot. 

We do know there have been some examples of noticeless 

searches such as that, even though it was not conducted under section 213, the problems that manifest themselves are the same, the 

Mayfield case out in Oregon. And I don’t want to get into a big discussion of that, but that was simply a case in which there was a 

noticeless search that turned out to be problematic. 

So I think one can reasonably state that there have been problems, the extent of which, the magnitude of which it is impossible 

to say at this still relatively early stage in the exercise of section 

213 powers. 

Mr. CHABOT. Could I ask for unanimous consent for 1 additional 

minute, if I could, just to ask for a response? 

Mr. COBLE. I’ll do that, but we’re going to have a second round 

as we go. 

Mr. CHABOT. If I could have 1 minute, I would appreciate it. 

Mr. COBLE. All right. 

Mr. CHABOT. Would any of the witnesses like to respond to the 

response about allegations and the secret cases and things? 

Ms. MAC DONALD. I would like to respond to the Mayfield case, 

because I know it has been raised before. The Mayfield case was 

not an abuse of the PATRIOT Act. The problem was there were fingerprints; the FBI misread the fingerprints. But it’s—the use of the 

36

PATRIOT Act were completely valid. And this was, after all, a terrorism investigation. Let’s remember the context. This was after 

the Madrid train bombing, and the FBI had evidence that led them 

to Mr. Mayfield. Unfortunately they read their prints wrong. It had 

nothing to do with abuse of the PATRIOT Act. 

Mr. CHABOT. Thank you very much. Yield back. 

Mr. COBLE. The Chair now recognizes Mr. Sullivan’s personal 

Congressman, Mr. Delahunt. 

Mr. DELAHUNT. That’s right, I am his Congressman. 

Ms. Mac Donald, I think that Mr. Barr’s observation that access 

to information is very problematic in terms of reaching a conclusion 

as to whether there has been problems or abuse—you know, you 

referenced earlier the—I think it was 1968 and J. Edgar Hoover 

and the FBI having transformed itself. 

[10:58 a.m.] 

Mr. DELAHUNT. I beg to differ. I think it has transformed itself 

recently. But one can point to numerous abuses during the 1970’s 

and the 1980’s and the 1990’s. I know Mr. Sullivan is familiar with 

what occurred in the Boston office of the FBI, as am I. 

You know, you talk about secrecy in Government or distrust, if 

you will, of secrecy in Government. I would suggest it is healthy. 

It is really, if you will, reflective of the Founders’ concerns about 

Government. It really led to the Bill of Rights. I think that Mr. 

Barr would probably concur with that. So I can assure you—I sat 

on a Committee that was examining the conduct of the Boston office of the FBI; to secure information from the executive branch of 

Government was extremely difficult. We do not know what is occurring, and I say Congress does not really know. And I am not suggesting any individual is in any way withholding information. It is 

just, if you will, I presume that the natural tensions that exist between the branches. But the problem is, is secrecy in Government. 

You know, the American people are reading that there is a huge 

increase in the number of classified documents on a yearly basis. 

You know, the gentleman that is responsible for archives and the 

keeping of that information has publicly expressed concern. So notice and transparency, you know, is important in terms of accountability. We are all held to be accountable. I hope that there are 

very few abuses. I mean, I think you say you cannot cite a single 

example. Well, we do not know. 

And I guess, let me direct this question to Mr. Barr, because he 

served in Congress, and he is familiar with the relationship between the branches. And I have to tell you something, I think we 

have had a series of very informative hearings under the leadership of Chairman Coble relative to the PATRIOT Act, but I am becoming more and more inclined to not make permanent any particular provision that will sunset. In fact, I would go a step further, 

because I would entertain and, possibly when the time comes, seek 

to amend to make the entire PATRIOT Act subject to sunset. I do 

not know how many years. But I have no doubt that it would encourage cooperation by the executive branch and enhance accountability to the American public. 

And I would—Bob, what is your—former Congressman Barr, 

what is your take on my observations? 

37

Mr. BARR. Well, it is a view that I share and I think the true 

conservatives share as well. And I am somewhat mystified why a 

lot of my former colleagues and your current colleagues are so 

afraid of a sunset provision. 

Particularly those of us who are conservative about many issues 

understand the need for oversight, as you have eloquently expressed it, and we also know that the realities are that if, generally 

speaking, if Congress does not have to do something, it will not. 

And this is a case in point. I do not think that we would be here 

today, I do not think that these hearings would be convened at this 

point in time were it not for the sunset provisions. It is a very, very 

important provision that liberals and conservatives alike ought to 

embrace. 

Mr. COBLE. I thank the gentleman. 

The distinguished gentleman from California. If you will suspend 

just a minute. 

Let me say to my friend from Massachusetts, the other day, you 

may recall I indicated that I am not uncomfortable conceptually 

with sunsets; it gives us a chance to come back and reexamine it. 

But I would say this—and this would be over my pay grade I am 

sure—but I would like for us subsequently to, when we examine 

sunsets, I would like for it to be at the end of a Congress rather 

than in the first early weeks as the case has been now. We have 

been jumping through hoops, as you all know, for the past 2 

months. 

The gentleman from California. 

Mr. LUNGREN. Thank you very much, Mr. Chairman. 

Thank you, members of the panel, for appearing before us. 

Mr. Barr, I happen to think oversight is extremely important. 

That is why I have made the observation more than once that Congress cannot do appropriate oversight just meeting Tuesday 

through Thursday. That is above our pay grade here, but I mean 

that honestly. Congress ought to reorganize itself so that we are 

here 5 days a week. This Chairman is working very hard to do it, 

but the compression of time with Committees and Subcommittees 

where, basically, part of Tuesday and Wednesday is the only time 

you have got to meet together I do not think gives us proper time 

for reflection. And that is just an observation I have had after 

being gone from this place for 16 years. 

Mr. Rosenberg, Mr. Barr has said that ‘‘secret searches,’’ of 

American homes and businesses must not be allowed to become 

routine; they must be closely circumscribed. I happen to agree with 

him on that. However you characterize it—but one way the Government can justify delayed notice search warrants is through—

well, the ways they can are articulated specifically in the statute. 

But one of those is number five: Notification would cause serious 

jeopardy to an investigation or unduly delay a trial. That has been 

criticized as being a catch-all phrase that leads to delayed notice 

being issued in run-of-the-mill cases. How would you respond to 

that characterization? 

Mr. ROSENBERG. Mr. Lungren, by the way, I believe, too, that we 

should be carefully circumscribed and scrutinized in the way that 

we use this power. Having said that, I do not see that as a catchall provision. As a career prosecutor, I can tell you that most of the 

38

time that we use a delayed notice search—and, again, we only use 

it in two out of every thousand searches or so—it is because notifying the subject of the search prematurely is going to essentially 

end, upset, or jeopardize the investigation. And just to be clear: We 

need to go to a judge, a magistrate judge or a Federal judge, and 

demonstrate that to her satisfaction. 

So you may call it a catch-all provision—not you personally. Others may call it a catch-all provision, but it is not. It is really the 

part of the statute that we rely on most often, at least the plurality 

of the time, that we are seeking this authority, because that is the 

way we do our business. We have investigations, and as they play 

out, we like to see who else is involved, who the conspirators are, 

who they are talking to, who they are selling to. And if we bring 

it down too fast, we jeopardize that. 

Mr. LUNGREN. I know we have had this in the law for some period of time. We want to make sure it applies to terrorist cases. 

And it has been my observation that we do have the presence of 

so-called sleeper cells in the United States who we have evidence 

not only have been here for days, months, but years, which would 

suggest an investigation of people involved in that might take more 

than a few days. And in his written testimony, Congressman Barr 

stated that section 213 sets no limits on the length of time notice 

of search warrants execution may be delayed. 

But isn’t it true, Mr. Rosenberg, Ms. MacDonald, that the judge 

would set the time? The judge sets the time? And that if, at the 

end of that time, you need more time, you have to go back? 

Mr. ROSENBERG. That is exactly right, sir. The judge would set 

that time based upon our application. We would have to demonstrate what we needed and why we needed it. 

Mr. LUNGREN. What about Mr. Barr’s suggestion that 7 days 

would be a reasonable time, at least to start the process going? 

Mr. ROSENBERG. He is right in some cases, 7 days may be all we 

need in some cases. But it is clearly not all we need in certain 

cases. And so I believe the way the law is written now gives us the 

flexibility and the judge the necessary oversight to set a reasonable 

amount of time. 

Mr. LUNGREN. Now, let me mention, in the letter that we received from the Justice Department, they talked about one of the 

cases that was involved with the U.S. Attorney in the Southern 

District of Illinois sought and received approval to delay notification based on the fifth category of adverse result. The length of the 

delay granted by the court was 7 days. Notification could not be 

made within 7 days, and the office was required to seek 31 extensions. The office was able to do that. Why is that a problem? 

Mr. ROSENBERG. Well, it is a problem only in the following sense: 

Every time we go back—and we go back often for many things—

but every time we go back, we are not doing something else. We 

have a finite pool of resources; we can spend it in any number of 

ways. In this case, the judge gave us 7-day increments. 

Mr. LUNGREN. Thirty-one times. 

Mr. ROSENBERG. Thirty-one times. But that is 31 applications, 31 

times that the agent comes down to the courthouse to swear out 

the warrant; 31 times that an assistant U.S. Attorney is not doing 

something else. 

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Mr. LUNGREN. Let me ask Mr. Barr to follow up on that and then 

ask you to respond because my time will be up. 

Congressman Barr, here you have a situation where they went 

31 times, each time getting 7 days. Doesn’t that seem a little silly? 

Or do you think that is appropriate because what we are doing is 

we are protecting constitutional rights, and therefore, we ought to 

extend that? And my second question is, is it the 7 days that you 

support, or is it some statutorily specified time that could be longer 

than 7 days? 

Mr. BARR. I do not think there is anything magical about 7 days, 

Mr. Lungren. I do think it is important that there be a requirement 

on the Government such as in the SAFE Act that I and a number 

of others are supporting. For extensions, we believe that is entirely 

appropriate. I do think, though, that if the Government is forced 

to go back to the court on a regular basis, and if it is 7 days, then 

it is 7 days. And my experience as a U.S. attorney, that sort of 

thing was never a problem. Yes, does it take a few minutes of time? 

Absolutely. But those are procedures that are, generally speaking, 

fairly routine to both the assistant U.S. attorneys and the investigators. 

Mr. LUNGREN. Would 21 days or 30 days be appropriate under 

your concept? 

Mr. BARR. I think 21 days could be. And that is the provision 

that is provided in the SAFE Act which is pending in the other 

body in the Senate version. 

Mr. LUNGREN. Ms. MacDonald? 

Ms. MACDONALD. Well, Mr. Barr reminded us of the constitutional history of warrants and warrants for searches perfectly appropriately. 

And of course, Mr. Delahunt, we need to preserve the constitutional framework for our Government. I believe the PATRIOT Act 

does that. But let us remember that the fourth amendment itself 

speaks in terms of reasonableness. It prohibits only unreasonable 

searches. It does not itself try to codify that with numerical terms. 

So judges, their very profession is involved in reading broad grants 

of authority like the Constitution gives them. So I think that the 

wording of the current section 213, which says you may delay notice for a reasonable period of time, is fully within the constitutional tradition and allows judges to make that fact, specific determination for each preemptive investigation. 

Mr. COBLE. The gentleman’s time has expired. 

Mr. Rosenberg, I noticed that you referred to judges in the feminine gender. I do not want any of these male judges to accuse you 

of discrimination. Hopefully, that will not happen. 

Mr. ROSENBERG. I have a daughter at home who is going to make 

sure I do it just that way. 

Mr. COBLE. Very well. 

Folks, in view of my allergy infirmity, I am going to rest my 

vocal cords, and let Mr. Scott start the second round. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. Barr, if you give the notice late, if you violate the law, if you 

had 7 days to do it and you turned in the evidence, turned in the 

report a couple of days or a couple of weeks late, but you are not 

going to use the evidence, is there any sanction? 

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Mr. BARR. Currently, no, the law provides none. 

Mr. SCOTT. Now, when we start trusting people, we have to put 

it in the context that this Administration in prior testimony on 

enemy combatants suggested that you could arrest an American 

citizen and hold them indefinitely without charges until the end of 

the conflict, which sounds like until the end of the war on terrorism, which certainly violates what most of us thought the Constitution would have required. 

So let me ask you, Mr. Barr, another question. On the question 

of Mohammed Atta’s computer, are there provisions in the law 

right now without the catch-all provision that would have allowed 

someone to get to his computer? Or would you have to rewrite the 

catch-all provision to be able to allow the search of his computer 

on a delayed notice? 

Mr. BARR. I think, Mr. Scott, that if you look at the language of 

the exception, the adverse result, which is found in 18 U.S.C. 2705, 

clearly, and I think this is evident in the various examples of how 

delayed notice or notice-less searches have been used that have 

been provided by the Department of Justice and by the Attorney 

General. The categories that we are talking about here, endangering the life or physical safety, flight from prosecution, destruction of or tampering with evidence, or intimidation of potential witnesses are extremely broad. And I went through the list of examples that the Department has cited, and I would be hard pressed 

as a former prosecutor using one’s imagination within the bounds 

of the law not to find an appropriate basis even in those four exceptions to the general rule to take into account the situation that 

would have been faced or would be faced in a Mohammed Atta situation. 

And it is also important, I think, to emphasize, Mr. Scott, that 

the SAFE Act, which is simply one vehicle now currently pending 

before both houses of the Congress to correct this deficiency, clearly, clearly lays out a scenario and appropriate basis on which that 

very situation could and should be addressed. 

Mr. SCOTT. Thank you. 

Now, Mr. Barr, in your testimony, you ask several questions 

about what we know about the use of section 213. And I am going 

to ask Mr. Rosenberg, do you know how many times section 213 

has been used in the 155 cases? How many of those were terrorist 

cases? How many we used against U.S. citizens? How many times 

the secret warrants have actually led to prosecutions? And how 

many of those were terrorism cases? And what happens to the contents of such searches if no charges are brought? I assume you cannot answer those off the top of your head. 

Mr. ROSENBERG. I cannot answer all of those off the top of my 

head. 

Mr. SCOTT. If you could provide us with that information. 

Mr. ROSENBERG. I think I can answer part of that, though, Mr. 

Scott. I do not know how it breaks down between terrorism cases 

and perhaps what I would call the more ordinary criminal cases. 

But my impression, and again, having been an assistant U.S. attorney for so long, that most of the time that we use a delayed notification search it would be in the drug context or perhaps the fraud 

context. Now, some of those may also be terrorism-related. I would 

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be happy to get back to you, though, sir, with all the specifics or 

at least as many as we can muster. 

Mr. SCOTT. Well, if you are having a drug investigation, any 

search is going to, ‘‘seriously jeopardize an investigation, or unduly 

delay a trial,’’ any drug investigation would qualify for that. 

Mr. ROSENBERG. Not necessarily. Not if you are at the end of the 

investigation and you are doing a search and making an arrest simultaneously. 

Mr. SCOTT. If you are investigating drugs in a major city, that 

is going to be, it seems to me, an ongoing operation. 

Mr. ROSENBERG. Often it is. But, again, if you are at the end, you 

could certainly in theory and in practice search and arrest, notify 

then, and bring the whole thing down. 

Mr. SCOTT. Would you agree to a more comprehensive report on 

the use of section 213 and have more meaningful limits on the 

length of the delays for notification? 

Mr. ROSENBERG. I know we are happy to look at anything that 

the Committee proposes. I do not have the authority to commit the 

Department of Justice to anything right now. 

Mr. SCOTT. You cannot blame me for trying. 

Mr. COBLE. I thank the gentleman from Virginia. 

The gentleman from California, Mr. Lungren, is recognized for 5 

minutes. 

Mr. LUNGREN. Thank you very much, Mr. Chairman. 

Mr. Rosenberg, I would like to go back to the question of the fifth 

basis for allowing a delayed notification, quote, unquote, criticized 

by some as the catch-all phrase. Mr. Barr in his testimony specifically claims that law enforcement could claim that immediate notice of search would seriously jeopardize an investigation in many 

and perhaps most cases, in other words, not requiring you to be put 

to the test on the previous three or four, where you have to show 

specifically how it is done. Can you respond to that in some detail? 

And what I mean by that is, this architecture of the law has been 

there for some period of time prior to the PATRIOT Act. It has 

been utilized on numerous occasions in the past. From your standpoint, do you recognize the potential abuse there? Is this just something that sort of is overblown? I mean, do you understand why 

some people are concerned? And how do you specifically respond to 

that? That is, if you have those previous three or four, I guess it 

is four that you can talk about, how come you need this one? 

Mr. ROSENBERG. It is a very fair question, and I appreciate the 

opportunity to address it. Remember, sir, we always have a filter 

on this, a very important filter, a Federal judge. And so it might 

be the case—and, again, I am speaking hypothetically now—where 

we do not know of a specific person whose life is endangered or we 

do not know of concrete evidence that we are going to lose or that 

will be destroyed. And so there is that more general provision that 

allows us to demonstrate, we hope, to a judge and have him or her 

authorize the delay under the fifth provision. But we have to go to 

a judge, and we have to demonstrate probable cause for the search 

and reasonable cause for the delay. And so you always have this 

filter. And that is the most important thing I can say today: We 

have to go to a judge, and we have to show a fact-specific reason 

to invoke one of these exceptions. Now, sometimes, we will invoke 

42

two or three in the same case. Lawyers often plead in the alternative. It is common. And we will say we think we may endanger 

the life of a witness; and if we lose that witness, it would seriously 

jeopardize the investigation. They can both be true at the same 

time. But we will lay out all the facts of a particular case and ask 

the judge to make that determination for us. We are not doing it 

ourselves. 

Mr. LUNGREN. Mr. Barr, I would love to have you respond to 

that, because it just strikes me that we have had this architecture 

for some years used in obscenity cases, drug cases, organized crime 

cases. Now, we are having it apply in terrorist cases. And while I 

share your concern that we ought not to let the terrorists succeed 

by having them cause us to tear up our Constitution in addition 

to or as opposed to tearing up our physical structure, that we are 

faced with a very, very serious threat that is out there. And because of the vastness of the threat and the almost sort of new intelligence that we are receiving and trying to understand this threat, 

that that fifth category may be more appropriate in terrorist cases 

than some of these other cases. And so I just ask you for your response to that. Is your criticism that the four previous categories 

are sufficient to cause specificity of evidence to be presented before 

the judge such that he or she could make an intelligent decision 

so that the fifth one is not necessary? And is that what your sense 

of catch-all phrase is? 

Mr. BARR. I do not have any problem, Mr. Lungren, with a fifth 

category. And that is why, for example, in the SAFE Act currently 

pending before the House and the Senate, it clearly provides that 

where there could be a serious endangerment of the national security by giving contemporaneous notice, the Government can seek or 

can apply for delayed notification. That is entirely appropriate. I 

think that clearly reflects the new world in which we are operating. 

I think it is a very broad authority for the Government, but yet it 

places a burden on the Government for more than some bureaucratic reason which unduly delaying a trial provides. I think unduly delaying a trial as the basis for not providing notice which has 

been, since long before our Constitution, one of the bases of privacy 

in our country and freedom in our country, is clearly not sufficient. 

And even if one assumes, as the Government is saying, they have 

had no abuses of this, especially as a conservative, I have a problem with the Government having that sort of broad authority because it can be abused very easily. 

Mr. LUNGREN. So am I. With all due respect, does that mean you 

do not want us to get rid of the fifth category, or are you just saying that we have to be particularly observant of that fifth category? 

Mr. BARR. I think it needs to be that—and I do believe, even 

with the Government’s explanation of the circumstances under 

which the category is seriously jeopardizing an investigation or unduly delaying a trial, clearly indicates it has become sort of a catchall. You put it in along with those others in case the others do 

not——

Mr. LUNGREN. But you are raising that as a concern. You are not 

saying we need to—— Mr. BARR. I think—I believe that, in order to be consistent with 

sound constitutional principles, the current category five needs to 

43

be removed. I would propose replacing it with one that is more specifically tailored to national security concerns. 

Mr. LUNGREN. Okay. 

Mr. Rosenberg, is the Candyman case relevant to this discussion 

at all? 

Mr. ROSENBERG. I believe it is. You are referring to an investigation in which we had notice that a car I believe bearing some 

30,000 ecstasy tablets was going across the Canadian border. It 

was stopped in Buffalo. And, using delayed notification search authority—meaning probable cause and reasonable cause for delay— we searched the car, allowed the investigation to continue, took 

very dangerous drugs off the street and, ultimately, rounded up a 

whole bunch of other drug conspirators. And we did that under the 

fifth so-called catch-all—a phrase that I reject—exception that you 

find in section 2705. 

In other words, had we had to take that whole case down there 

and then in Buffalo, okay, we would have still succeeded in removing those ecstasy tablets from the street, but we would not have 

been able to follow the trail of that investigation to other conspirators. 

Mr. LUNGREN. Was that in part because you did not know the 

extent of where the investigation would take you at that point in 

time, and that is why the fifth category was appropriate? I am trying to figure out why the fifth category is necessary and under 

what circumstances. 

Mr. ROSENBERG. Well, that is exactly right. At the beginning of 

an investigation, you often do not know where the trail will lead. 

You are surprised many times by the twists and turns that it 

takes. And I know that you have a background in law enforcement. 

You do not always know who is involved or to what extent or where 

they live. And so allowing an investigation to run, not seriously 

jeopardizing it, enables us to learn the extent of the conspiracy 

and, in this case, to get other drugs and other conspirators off the 

street. 

Mr. COBLE. Thank you. The gentleman’s time has expired. 

The gentleman from Massachusetts. 

Mr. DELAHUNT. I would frame it in larger terms. I think, Congressman Barr, I think you are absolutely correct in terms of I do 

not think there is anybody that wants to endanger national security, and I do not think we will, because I think that we have that 

as a priority. 

Yet, at the same time, we have concerns given our history, given 

this natural inclination to distrust Government. That is why a lot 

of folks ended up here on this continent. But I would suggest that 

there is a crisis of confidence in the justice system. You know, Ms. 

MacDonald describes it as a campaign of misinformation, and in 

part, it could very well be. But it is this whole issue of secrecy and 

transparency and need for accountability and, again, not just to 

Congress, but to the American people. And I know that is difficult 

to balance. I am thinking beyond the PATRIOT Act. And I would 

address this to the U.S. Attorney. 

We have a case in my congressional district in Quincy, Massachusetts, the Ptech case, where a firm was subject to a lawful 

search, and records were seized. The U.S. Attorney issued a stateVerDate 0ct 09 2002 14:17 Jun 27, 2005 Jkt 000000 PO 00000 Frm 00047 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\050305\21023.000 HJUD1 PsN: 21023
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ment saying there is an ongoing investigation. There was a lot of 

publicity surrounding the search itself, not as a result of anything 

that the U.S. Attorney’s Office was responsible for, but for other 

reasons. People are wondering, what happened? That search occurred, was it some 2.5 years ago now? I think we have got to communicate with the American public that after an event like that occurs and we hear nothing anymore, there has to be some sort of 

an accounting if we are going to restore confidence in the system 

itself. 

Mike, would you have any comments about the Ptech case? 

Mr. SULLIVAN. Well, I certainly appreciate your concerns, Mr. 

Delahunt. And this is a case that is 2.5 years old. And, unfortunately, the fact that this matter was under investigation did somehow get leaked to the media. And this is an instance, quite candidly, where I think the investigation and the company would have 

benefited by far less public scrutiny during the early stages. We 

took great pains to notify them of our authority to conduct a search 

warrant and took great pains to schedule the search warrant. We 

were not concerned that the documents at that point in time somehow could be secreted away, to do it late at night. Unfortunately, 

the fact that the search warrant was going to be executed was 

leaked. And that is how the media and the public ended up getting 

information regarding Ptech. I only made a public statement after 

it became public information to reassure the public that there was 

no reason for public fear at that point in time because of the nature 

of the investigation. 

But I do agree that, once a matter has become public, it is in the 

interest of the public to communicate when that matter has been 

resolved. Unfortunately, some of these cases do take years to reach 

final resolution. 

Mr. DELAHUNT. Well, again, and I respect your actions in the 

case. But it is 2.5 years at this point in time. Do you need any kind 

of authority to make a public statement indicating that this investigation has concluded—and I do not want to use the term exonerate—but concluded and there is no further action? I mean, I 

think we owe this to the 50-some odd employees who lost their jobs 

as a result of the publicity surrounding this particular case and 

give them, if you will, their reputations back. That, again, I am not 

in any way suggesting that the company’s demise and the tarnished reputations was a result of your actions, but it occurred. 

And we have got to let the public know at some point in time 

whether there is anything there, or if there is not, remove the 

cloud. Do you need any kind of further authorization? Do you have 

the authority now to do it internally? Because I think it is very important. I use this just as an example, but I am sure that this example could be replicated all over the country in terms of communicating to the people. It goes to the issue of transparency and accountability. 

Mr. SULLIVAN. I believe the U.S. Attorney’s Offices across the 

country have the unilateral authority to make those public statements at the point in time where they feel confident that they can 

make those public statements. 

Mr. DELAHUNT. Well, again, this goes to 2.5 years. I do not want 

to focus in on a particular case, but 2.5 years, it goes to the issue 

45

I think that you heard caused Mr. Scott concern about indefiniteness. There comes a point in time when the Government at a moment in time has to fish or cut bait. 

Mr. Rosenberg, you are shaking your head. I want to know why 

you are shaking your head. 

Mr. ROSENBERG. I am shaking my head, yes, because I think it 

is a fair point. You mentioned earlier that distrust is healthy, Congressman. I agree with you; skepticism is healthy. And one of the 

ways in which the Government oversees what we do is both 

through the judges that review and sign or reject our warrants and 

through hearings like this where you ask hard questions and, hopefully, we give fathomable answers. 

Mr. DELAHUNT. But if I can indulge an additional minute, Mr. 

Chairman. 

But in the end, the American people are going to be the arbiters 

in terms of the integrity of the system. And when there is left 

hanging there clouds, then that erodes. It isn’t just about, if you 

will, the people that are, if you will, the victims of improper publicity or leaks, but it is the integrity of the system. People are saying, what is happening? You know, whether it be there or—recently 

I was watching, I don’t know, 60 Minutes or something on Sunday, 

and there is somebody with a new book out about most of the detainees in Guantanamo happened to be there at the wrong time at 

the wrong place. It does not help America’s image abroad, and it 

certainly erodes the confidence of the American public in terms of 

the integrity of the justice system. They do not make a distinction 

between military investigators and the FBI. People do not necessarily make those kind of distinctions. So it is very important, because I would suggest, if we are going to have a healthy democracy, 

you know, one that we all feel comfortable with, you know, transparency is important, balanced, obviously, with our need for secrecy 

in terms of enhancing our national security. 

Mr. COBLE. The gentleman’s time has expired. 

Folks this has been a good hearing. I again apologize to each and 

every one of you for my hacking and coughing. I know it sounded 

annoying, but I had no control over it. I will waive my second 

round of questions. 

Let me just say this in summing up: Is the PATRIOT Act a perfect piece of legislation? No. But I do not think it is as onerous and 

unreasonable as some folks believe. But much of this is subject to 

interpretation. Many of us on this Subcommittee disagree from 

time to time, but we usually disagree agreeably. And we are going 

to get to the end of this row one of these days. And, for your information—I want to mention this—again, I want to thank you all for 

being here. In order to ensure a full record and adequate consideration of this important issue, the record will be left open for additional submissions for 7 days. Also, any written questions from any 

Member must also be submitted to you all within that same 7-day 

timeframe. 

This concludes the oversight hearing on the implementation of 

the USA PATRIOT Act, sections 201, 202, 213 and 223—strike 

that. Not 213, because it does not sunset—201, 202, 223 of the Act 

that addresses criminal wiretaps and section 213 of the Act that 

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addresses delayed notice. Thank you for your cooperation. The Subcommittee stands adjourned. 

[Whereupon, at 11:34 a.m., the Subcommittee was adjourned.] 

(47)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE ROBERT C. SCOTT, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF VIRGINIA, AND RANKING MEMBER, SUBCOMMITTEE

ON CRIME, TERRORISM, AND HOMELAND SECURITY


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LETTER FROM THE HONORABLE WILLIAM E. MOSCHELLA, ASSISTANT ATTORNEY

GENERAL, U.S. DEPARTMENT OF JUSTICE TO THE HONORABLE ARLEN SPECTER


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REPORT FROM THE OFFICE OF THE INSPECTOR GENERAL ENTITLED ‘‘REPORT TO CONGRESS ON IMPLEMENTATION OF SECTION 1001 OF THE USA PATRIOT ACT,’’ MARCH

11, 2005


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REPORT FROM THE U.S. DEPARTMENT OF JUSTICE ENTITLED ‘‘DELAYED NOTICE

SEARCH WARRANTS: A VITAL AND TIME-HONORED TOOL FOR FIGHTING CRIME,’’

SEPTEMBER 2004


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LETTER FROM THE HONORABLE WILLIAM E. MOSCHELLA, ASSISTANT ATTORNEY

GENERAL, U.S. DEPARTMENT OF JUSTICE TO THE HONORABLE HOWARD COBLE


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ARTICLE SUBMITTED BY HEATHER MAC DONALD, JOHN M. OLIN FELLOW, THE MANHATTAN INSTITUTE FOR POLICY RESEARCH, ENTITLED ‘‘STRAIGHT TALK ON HOMELAND SECURITY,’’ City Journal (Summer 2003)


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Æ


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