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94–064 PDF 2004

S. HRG. 108–482

AMERICA AFTER 9/11: FREEDOM PRESERVED OR

FREEDOM LOST?

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

NOVEMBER 18, 2003

Serial No. J–108–53

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ORRIN G. HATCH, Utah, Chairman 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

LARRY E. CRAIG, Idaho 

SAXBY CHAMBLISS, Georgia 

JOHN CORNYN, Texas 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

JOHN EDWARDS, North Carolina 

BRUCE ARTIM, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

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

statement .............................................................................................................. 255

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

prepared statement .......................................................................................... 282

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

prepared statement .............................................................................................. 284

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

prepared statement .......................................................................................... 313

WITNESSES 

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

Georgia .................................................................................................................. 6

Chishti, Muzaffar, Director, Migration Policy Institute at New York University School of Law, New York, New York .......................................................... 18

Cleary, Robert J., Proskauer Rose, LLP, New York, New York .......................... 20

Dempsey, James X., Executive Director, Center for Democracy and Technology, Washington, D.C. .................................................................................... 16

Dinh, Viet D., Professor of Law, Georgetown University Law Center, Washington, D.C. ........................................................................................................... 11

Strossen, Nadine, President, American Civil Liberties Union, New York, New 

York ....................................................................................................................... 9

Zogby, James J., President, Arab American Institute, Washington, D.C. .......... 14

QUESTIONS AND ANSWERS 

Questions submitted by Senator Leahy to the witnesses. .................................... 57

Questions submitted by Senator Kennedy to the witnesses. ............................... 63

Questions submitted by Senator Biden to the witnesses. .................................... 67

Questions submitted by Senator Feingold to the witnesses. ................................ 70

Questions submitted by Senator Craig to the witnesses. ..................................... 73

Responses of Bob Barr to questions submitted by Senators Leahy, Kennedy, 

Feingold, and Craig .............................................................................................. 74

Responses of Muzaffar Chishti to questions submitted by Senator Kennedy .... 80

Responses of Muzaffar Chishti to questions submitted by Senator Feingold ..... 83

Responses of Muzaffar Chishti to questions submitted by Senator Leahy ......... 84

Responses of Robert J. Cleary to questions submitted by Senators Leahy, 

Kennedy, Biden and Craig .................................................................................. 88

Responses of Viet D. Dinh to questions submitted by Senator Craig ................. 110

Responses of Viet D. Dinh to questions submitted by Senator Biden ................. 115

Responses of Viet D. Dinh to questions submitted by Senator Kennedy ............ 119

Responses of Viet D. Dinh to questions submitted by Senator Leahy ................ 121

Responses of Nadine Strossen to questions submitted by Senators Leahy, 

Kennedy, Feingold, and Craig ............................................................................. 122

Responses of James J. Zogby to questions submitted by Senators Leahy, 

Kennedy, Biden, Feingold, and Craig ................................................................. 135

SUBMISSIONS FOR THE RECORD 

American-Arab Anti-Discrimination Committee, Mary Rose Oakar, President, 

Washington, D.C. report summary and attachments ....................................... 145

American Library Association, Carla Hayden, Washignton, D.C., letter and 

attachments .......................................................................................................... 161

Page

IV

Amnesty International, Stephen Richard, Coordinator, Washington, D.C., letter .......................................................................................................................... 167

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

Georgia .................................................................................................................. 171

Center for Democracy & Technology, Center for American Progress, Center 

for National Security Studies, Washington, D.C., joint report ......................... 180

Chishti, Muzaffar, Director, Migration Policy Institute at New York University School of Law, New York, New York .......................................................... 219

Cleary, Robert J., Partner, Proskauer Rose, LLP, New York, New York ........... 241

Dempsey, James X., Executive Director, Center for Democracy and Technology, Washington, D.C. .................................................................................... 258

Dinh, Viet D., Professor of Law, Georgetown University Law Center, Washington, D.C. ........................................................................................................... 277

Fine, Glenn A., Inspector General, Department of Justice, Washington, D.C., 

letter ...................................................................................................................... 280

Lawyers Committee for Human Rights, Washington, D.C., report ..................... 293

Mexican American Legal Defense and Educational Fund, Katherine Cullition, 

Legislative Staff Attorney, Washington, D.C., statement ................................. 319

Massimino, Elisa, Director, Lawyers Committee for Human Rights, Washington, D.C., statement ........................................................................................ 327

New York Times, Clifford Krauss, New York, New York, article ........................ 335

Strossen, Nadine, President, American Civil Liberties Union, and Timothy 

H. Edgar, Legislative Counsel, New York, New York, statement .................... 338

Washington Post, Washington, D.C. 

DeNeen L. Brown, November 12, 2003, article .............................................. 355

November 9, 2003, editorial ............................................................................. 357

Philip Allen Lacovar, November 12, 2003, article ......................................... 358

Zogby, James J., President, Arab American Institute, Washington, D.C., statement ...................................................................................................................... 360

(1)

AMERICA AFTER 9/11: FREEDOM PRESERVED 

OR FREEDOM LOST? 

TUESDAY, NOVEMBER 18, 2003 

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

The Committee met, pursuant to notice, at 10:06 a.m., in room 

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

Chairman of the Committee, presiding. 

Present: Senators Hatch, Kyl, Sessions, Chambliss, Leahy, 

Biden, Feinstein, Feingold, and Durbin. 

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

SENATOR FROM THE STATE OF UTAH 

Chairman HATCH. Good morning. I want to welcome everyone to 

our second hearing in a series to examine the adequacy of our Federal laws to protect the American public from acts of terrorism 

against the United States. 

At the outset, I would like to thank our ranking minority member, Senator Leahy, for his continued cooperation in working together to examine these important issues. Senator Leahy has been 

a tireless advocate for the protection of our individual rights and 

liberties, as has, I believe, every person on this Committee. 

As the Chairman of this Committee, he helped to craft the PATRIOT Act into a bipartisan measure which carefully balances the 

need to protect our country without sacrificing our civil liberties. 

Without the leadership of Senator Leahy and the support of my fellow colleagues across the aisle, we could not have acted so effectively after 9/11 to pass this measure by a vote of 98 to 1. I am 

confident that we will continue to work cooperatively in the future 

as we plan additional hearings when Congress returns next year. 

Today’s hearing focuses on the issue of our civil liberties in the 

aftermath of the horrific September 11 attacks against our people. 

The unprovoked and unjustified attacks on 9/11 require us all to 

take every appropriate step to make sure that our citizens are safe. 

This is the first responsibility of Government. 

Thomas Jefferson said, ‘‘The price of freedom is eternal vigilance.’’ Congress must be vigilant. True individual freedom cannot 

exist without security, and our security cannot exist without the 

protection of our civil liberties. 

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

from future terrorist attacks is infringement upon our cherished 

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

contrary to our Nation’s historical commitment to civil liberties. 

2

Well, we disagreed, or we would not have passed the PATRIOT 

Act. However, the fact that we did doesn’t mean that that is perfect 

and that it can’t be criticized. Personally, I think that we have to 

combine both our civil liberties and our National security or we will 

have neither. 

While we all share this common commitment to security and 

freedom, the question we are examining today is how best to do so 

in an environment where terrorists like the 9/11 attackers are able 

to operate within our borders, using the very freedoms that we so 

dearly cherish, to carry out their deadly plots against our country. 

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

enter into our country without the strictures of immigration laws, 

enjoy the fruits of our freedom, secure for themselves all the necessary trappings of law-abiding members of our society, and then 

carry out their terrible attacks under the radar screen of law enforcement, intelligence, and immigration agencies. 

Let me make just one comment with respect to immigration-related matters. There has been much in the press in recent weeks 

concerning the detention of certain aliens suspected of terrorist activities. The Supreme Court will hear a case in this area. While 

this issue is not the central focus of today’s hearing, important 

issues have been raised that this Committee must wrestle with 

over the next number of months. 

This hearing will examine our Government’s efforts to promote 

our freedoms, not just the freedom to live in a safe and security society, but the freedoms that our country was founded on and the 

freedoms that each of us enjoy each and every day and, of course, 

the freedoms that are the lifeblood of our very society. 

I am especially interested in hearing from today’s witnesses 

about the details of any specific abuses that have occurred under 

our current laws. We have invited five critics to ensure that interested parties have ample opportunity to express their concerns. I 

am very interested in listening to them. 

At the outset, let us make it clear who is not a witness today—

Attorney General Ashcroft. At the last hearing, some negatively 

and unfairly commented on the AG’s absence, even though he was 

not invited to testify by me. We are planning on the Attorney General, FBI Director Mueller, and Secretary Ridge to testify early 

next year. I think that John Ashcroft is a good man, and he is 

doing a very good job as our Attorney General. 

At our last hearing, my good friend and colleague, Senator Feinstein, made an important point about the dearth of hard evidence 

of specific abuses under current law. We must not let the debate 

fall into the hands of those who spread unsubstantiated or outright 

false allegations when it comes to these important issues. 

We will question today’s witnesses on specific abuses of our laws. 

We also want to hear their ideas about how current law should or 

can be modified to better protect our National security interests, 

while maintaining our civil liberties. 

I am hopeful we can examine the issue of civil liberties today in 

a responsible manner. This Committee will continue to gather all 

of the facts. We will ascertain whether the Government has actually infringed on anyone’s civil liberties while exercising its authority under current law. 

3

I want to now turn it over to Senator Leahy for his opening 

statement. After that, I will ask each witness to speak for 5 minutes and then we will a ten-minute round of questions for each 

member. 

Senator Leahy.

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

FROM THE STATE OF VERMONT 

Senator LEAHY. Well, thank you, Mr. Chairman. 

As you noted, this is the second in our series of oversight hearings reviewing America’s progress in the fight against terrorism. 

Our focus today is on the ways the administration’s policies and actions affect the privacy and civil liberties of United States citizens, 

as well as, of course, the rule of law. 

We will examine the implications of secret detentions and roundups based on religion and ethnicity, the implications of granting 

the government more power over our liberties without sufficient 

checks and balances, and the implications of government secrecy or 

stonewalling. It is an ambitious subject for one hearing. We all 

know that we will need additional hearings next year on related 

issues. 

I compliment the Chairman, because we have worked together 

and agreed on the need for a separate hearing to examine the administration’s discretion to designate certain individuals as enemy 

combatants. I appreciate very much working with the Chairman on 

that. 

Now, as you noted, the Attorney General is going to come before 

us next year. If we don’t adjourn this week, I would hope that we 

could actually have him appear this year. There was criticism on 

both sides of the aisle when we learned that the Attorney General, 

who has had plenty of time to make public appearances and lobbying appearances around in the country was not available to appear. In the 29 years I have been here, I cannot remember an Attorney General who has spent less time before the Senate Judiciary 

Committee. 

I do welcome our witnesses today. I thank them for coming. It 

is important for us to revisit the policy decisions we made in the 

PATRIOT Act. As the Chairman noted, it was negotiated and 

passed in the emotional aftermath of the terrorist attacks of September 11. I think we have to look beyond the four corners of that 

legislation and we have to examine other administration policies 

and actions that affect the civil liberties of the American people in 

the name of fighting terrorism. All of us want to fight terrorism. 

One major area of concern involves the mass arrest and secret 

detentions that followed the September 11 attacks. Columnist Stuart Taylor referred to it recently as the administration’s truly 

alarming and utterly unnecessary abuses of its detention powers. 

Earlier this year, the Department of Justice’s own Inspector General reported critically on the Department’s handling of immigration detainees swept up in the 9/11 investigation. 

The Inspector General found that the vast majority of these immigrants were never linked to terrorism. Rather, they had committed only the civil violation of overstaying their visas and then 

found themselves in the wrong place at the wrong time. I welcomed 

4

the hearing the Committee held on the Inspector General’s report 

in June, but I think we also have to hear from outside experts, not 

just administration experts. 

Of course, it is proper for the Government to enforce our immigration laws, but when we suddenly see a major shift in the way 

they are being enforced, we have to make sure that the laws are 

not being enforced with regard to the religion or the ethnicity of 

the aliens involved. An unbiased immigration policy is not simply 

the right thing for a great country like ours to do, but it is also 

the best national security policy. 

Along these lines, I am alarmed by recent reports that the FBI 

assisted in the rendition of a Canadian Syrian citizen to Syria. He 

was stopped while changing planes in New York and he was sent 

to Syria with the help of the United States, where he was put in 

a prison and beaten for hours until he confessed to attending a 

training camp in Afghanistan; according to him, confessing just to 

stop the beatings. Whether that is true or not, we ought to find out 

because he says he was held in a cell that was 3 feet wide, 6 feet 

deep, 7 feet high, for 10 months, until he was released by Syrian 

authorities in October. 

Living just less than an hour’s drive from the Canadian border, 

I see a lot of the Canadian press. There is no better ally we have 

than Canada. It is our largest trading partner. Let me tell you this 

has given an enormous black eye to the United States, and as several administration officials have stated in the press, at least anonymously, they have acknowledged that they know it gives the U.S. 

a black eye. It seriously damages our credibility as a responsible 

member of the international community. 

When earlier allegations of rendition surfaced, I wrote to administration officials asking for guarantees that the United States is 

complying with the United States obligations under the Convention 

Against Torture, something that we have signed and ratified. I sent 

a letter to National Security Adviser Condoleezza Rice on June 2 

of this year. It was answered by Department of Defense General 

Counsel William Haynes on June 25. 

I was assured that if the United States should transfer an individual to another country, we would obtain specific assurances that 

the receiving country would not torture the individual. I wrote a 

follow-up letter to Mr. Haynes asking for greater detail on how our 

Government is going to get a guarantee from another country that 

if we turn somebody over to it, the government is not going to torture that individual. I want to know what the assurances are. We 

never received a response, but Mr. Haynes is coming before this 

Committee in a confirmation hearing tomorrow and we will ask 

him again. I also sent a letter to the FBI Director to inquire about 

the alleged role of the FBI in this case. 

I will put my full statement in the record, but I want to just 

touch on two things. They involve certain Government powers that 

are not subject to effective checks and balances to ensure against 

abuse and certain administration policies that perpetuate Government secrecy rather than ensure Government accountability to the 

American people. 

When a government is accountable and open, it is a better government. When a government is secret and unaccountable, I don’t 

5

care whether it is a Democratic administration or Republican administration, it is not as good a government. 

The civil liberties entrusted to each generation of Americans are 

ours to enjoy and defend, but they belong not only to us, they belong to the next generation. We are benefactors of the freedoms we 

ourselves have inherited, but we are also the stewards of those 

freedoms. Our children and our grandchildren will look back to see 

whether we were diligent when we were tested or whether we sat 

silent. Others around the world, including right now the people of 

Iraq, will also take note of how vigilant we are in defending the 

freedoms of our democracy. 

Our civil liberties were hard-won. We fought a revolution, we 

went through very trying times. But as hard as these liberties are 

to win, they are very easy to lose, and once we give them away, 

they are very difficult to reclaim. Benjamin Franklin said, ‘‘Those 

who would trade their freedom for security deserve neither.’’ 

Hearings like this produce report cards on how well we are meeting this test and honoring the trust of the American people. So 

again I thank the Chairman, my good friend from Utah, for his attention to these matters, and also colleagues on both sides of the 

aisle for their active and informed participation in this important 

debate. 

I will put my full statement in the record. 

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

Chairman HATCH. Well, thank you, Senator. 

We are going to start with Representative Barr, who currently 

occupies the 21st Century Liberties Chair for Freedom and Privacy 

in the American Conservative Union. He is a consultant to the 

American Civil Liberties Union. From 1995 to 2003, Bob represented the 7th District of Georgia in the U.S. House of Representatives, serving as a senior member of the Judiciary Committee and Vice Chairman of the Government Reform Committee, 

and was an 8-year veteran of the Committee on Financial Services. 

Prior to his service in Congress, Congressman Barr was appointed 

by President Reagan to serve as the U.S. Attorney for the Northern 

District of Georgia from 1986 to 1990. 

Nadine Strossen is the President of the American Civil Liberties 

Union and a Professor of Law at New York Law School. Prior to 

her current positions, Ms. Strossen practiced law for 9 years in 

Minneapolis and New York City. She graduated from Harvard College and Harvard Law School, where she was editor of the Harvard 

Law Review. 

We welcome both of you here. 

Professor Viet Dinh served in the Justice Department as Assistant Attorney General for the Office of Legal Policy from May 2001 

until May 2003. Before joining the Justice Department, Professor 

Dinh was Deputy Director of Asian Law and Policy Studies at the 

Georgetown University Law Center. Professor Dinh graduated from 

both Harvard College and Harvard Law School. He was a law clerk 

to Judge Lawrence H. Silberman, of the U.S. Court of Appeals for 

the D.C. Circuit, and to U.S. Supreme Court Justice Sandra Day 

O’Connor. 

6

James J. Zogby is founder and president of the Arab American 

Institute. He is a lecturer and scholar on Middle East issues, U.S.–

Arab relations, and the history of the Arab American community. 

Mr. Zogby is a board member of Middle East Watch, a human 

rights organization, and a member of the Council on Foreign Relations. 

We welcome you, Professor Dinh, and you, Mr. Zogby, as well. 

James Dempsey has served as the Executive Director of the Center for Democracy and Technology since 2003. Before working at 

CDT, Mr. Dempsey was the Deputy Director of the Center for National Security Studies, and from 1985 to 1994, Mr. Dempsey 

served as assistant counsel to the House Judiciary Subcommittee 

on Civil and Constitutional Rights. It is good to see you again. 

Mr. Muzaffar Chishti—I think I am pronouncing that correctly. 

Mr. CHISHTI. Almost correctly. 

Chairman HATCH. Almost correctly? Tell me how to do it correctly. 

Senator LEAHY. In the ball park. 

Mr. CHISHTI. Chishti. 

Chairman HATCH. Muzaffar Chishti, okay. I am doing better. 

He is based at the Migration Policy Institute’s office at NYU 

School of Law. Prior to joining MPI, Mr. Chishti was founder and 

director of the Immigration Project of the Union of Needle Trades, 

Industrial and Textile Employees, UNITE. Mr. Chishti also serves 

as treasurer of the U.S. Committee for Refugees, and is a member 

of the Coordinating Committee on Immigration of the American 

Bar Association. 

We welcome you, as well. 

Robert Cleary joined Proskauer Rose in June 2002 after a 

lengthy career as a Federal prosecutor. From 1999 to 2002, Mr. 

Cleary served as the U.S. Attorney in two different judicial districts, the District of New Jersey and the Southern District of Illinois. 

Before being appointed United States Attorney, Mr. Cleary was 

the lead prosecutor in the Unabomber case, United States v. Theodore J. Kaczynski, from 1994 until his appointment as the 

Unabomber prosecutor in 1996. Mr. Cleary was the First Assistant 

United States Attorney in the District of New Jersey. From 1987 

to 1994, Mr. Cleary served as an Assistant United States Attorney 

in the Southern District of New York, a man of great experience, 

and we are delighted to have you here with us as well. 

We welcome all of you and we look forward to your testimony. 

We would like you to conclude when the light goes on up here. We 

will give each of you 5 minutes. I am not going to be tough about 

it, but I would like you to try and stay within that if you can so 

we have enough time for questions. 

Bob, welcome back to the Congress. We are glad to have you 

here. 

STATEMENT OF HON. BOB BARR, A FORMER REPRESENTATIVE IN CONGRESS FROM THE STATE OF GEORGIA 

Mr. BARR. Thank you, Chairman Hatch. It is a distinct honor to 

be here today with you and your colleagues on both sides of the 

aisle, particularly my dear friend from Georgia and former House 

7

colleagues, Saxby Chambliss, who I know is distinguishing himself 

in this body as he did in the former body in which I had the honor 

of serving with him. I appreciate the invitation extended to me by 

the entire Committee to be here today with such a distinguished 

panel of witnesses. 

The bipartisan approach reflected by both the Chairman and the 

ranking member’s remarks and the work of this Committee is also 

reflective of the bipartisan approach of those of us who have expressed some concerns, not just with the PATRIOT Act, but with 

the whole panoply of government programs and regulations, including the PATRIOT Act, including CAPPS II, including TIA and 

TIPS, and so on and so forth. 

It is bringing together citizens in this country, both those in the 

law as well as citizens not steeped in the law, who are concerned 

about their civil liberties in a way that I think is unique and very 

healthy in America. I very much appreciate the Chairman’s indication that those of us who have expressed some concerns with the 

PATRIOT Act and Government programs are not doing anything 

un–American at all, that this is very much a part of the fabric of 

how we come up with the very best product, the very best laws, 

and the implementation of those laws in this country. 

I would also like to thank on the record today Attorney General 

Ashcroft and the entire Department of Justice. They have been 

faced over the last 2 years with challenges that are unique in our 

history. While I and some others find some substantive fault and 

have some disagreements with some of the provisions of these Federal laws and how they are being implemented, I know I don’t, and 

I don’t think any of us certainly on this panel and in America, find 

fault with the motivation of the Attorney General and the perspective that he brings. We are all trying to do the right thing by 

America. We simply have some disagreements on exactly how we 

need to get there. 

I would appreciate my written remarks being included in their 

entirety in the record, Mr. Chairman. 

Chairman HATCH. Without objection. 

Mr. BARR. Without going into all of that, being very mindful not 

only of the Committee’s time constraints as well as the considerable background that the Committee has, which is far greater than 

mine, I will let that speak for itself and, if I could, just take a couple of moments to address one point that the Chairman made at 

the beginning of his remarks, and that is so-called hard evidence 

about abuses. 

Part of the problem, of course, Mr. Chairman, with coming up 

with what traditionally might be thought of as hard evidence of 

abuses—that is, actual cases in which the Government has abused 

the powers in the PATRIOT Act or other laws—is made necessarily 

difficult because of the secrecy, of course, that surrounds it. 

So holding those of us who have expressed some concern and 

some criticism of the PATRIOT Act and its implementation for failure to come up with a range of so-called hard-evidence actual cases 

is very difficult, if not impossible, in most instances because we 

don’t know. Certainly, at this point some of these cases are still 

working their way through the court system and they are surVerDate 0ct 09 2002 12:07 Jun 15, 2004 Jkt 094064 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\94064.TXT SJUD4 PsN: CMORC
8

rounded by this aura of secrecy, which is a problem with the entire 

PATRIOT Act and this approach. 

I do think, though, Mr. Chairman, that there is some hard evidence out there, hard evidence when you talk to both religious and 

political as well as social activist groups who feel very properly and 

very legitimately and very realistically that this law and the other 

Government programs and policies are having a very pronounced 

and very palpable chilling effect on their willingness, their ability 

to express their views in ways that heretofore have been not only 

appropriate, but accepted forms of expression in this country. 

I think also, Mr. Chairman, there are a number of instances of 

so-called fishing expeditions on which the Government has gone. 

There was one written about just yesterday in the Atlanta Journal 

Constitution that caught my attention, a case both from Virginia 

as well as with some aspects down in Georgia that are being handled through the court system. 

According to the newspaper accounts that I saw, there is very 

clear evidence that this is an example of a fishing expedition where 

the Government is using one particular power under the PATRIOT 

Act, and that is the broadened national scope of subpoenas to gather evidence in other districts around the country from individuals 

and organizations in other parts of the country against whom the 

Government has no evidence even remotely approaching probable 

cause that there is a connection between those individuals and corporations and terrorist activity, or even criminal activity in the 

first place. So I think we are seeing evidence of abuse of the PATRIOT Act in the sense that we are seeing these fishing expeditions. 

I do think also, Mr. Chairman, that there already is some very 

serious damage being done to the fabric of the Fourth Amendment 

in these various programs, such as some under the PATRIOT Act, 

CAPPS II, TIA, and other programs with which the Chairman and 

the Committee are very well aware, in which we now seem to be 

allowing the Government to gather evidence on citizens and other 

persons lawfully in this country without any of the traditional limitations, the traditional burdens which the Government has to surmount such as probable cause and reasonable suspicion. I think if 

we continue down that road, it will do very serious permanent 

damage to the Fourth Amendment. 

I think also, finally, Mr. Chairman, there is very clear evidence 

that some citizens and others, again, lawfully in this country, exercising their right to travel, is being arbitrarily abused, arbitrarily 

denied because of the exercise of some of these powers. 

In that regard, I know the Committee has concerns not just 

about the PATRIOT Act, but about some of these other programs 

that are very tangibly in terms of hard evidence infringing and denying people some of the basic liberties, such as the right to travel 

interstate, that have heretofore been protected activities in this 

country. 

So I think, Mr. Chairman, in response to your very legitimate 

concern—sort of show us the beef, where are the problems, are 

these very real problems or are they theoretical problems—I think 

that they are not theoretical problems. And as time goes on and 

these cases work their way through the court system, as hopefully 

9

some of the secrecy surrounding these problems is stripped away 

in those court proceedings, it will become even more apparent that 

we are indeed embarked on, at least in some respects with regard 

to the PATRIOT Act and these other Government powers since 9/

11, a very, very slippery slope. 

I know the Committee shares the concerns of us as citizens to 

make sure that we correct that. Even those of us such as myself, 

and perhaps many on this panel that voted for the PATRIOT Act, 

certainly have some concerns about it, how it is being implemented, 

and how it is also being implemented in the context of all of these 

other things that the Government is doing that need to be addressed, need to be brought more back into balance. 

I appreciate the opportunity to both submit a written statement, 

provide this oral statement, and answer whatever questions the 

Committee might have today in this very important endeavor. 

[The prepared statement of Mr. Barr appears as a submission for 

the record.] 

Chairman HATCH. Thank you, Mr. Barr. 

We will turn to Ms. Strossen. 

STATEMENT OF NADINE STROSSEN, PRESIDENT, AMERICAN 

CIVIL LIBERTIES UNION, NEW YORK, NEW YORK 

Ms. STROSSEN. Thank you so much, Chairman Hatch and Senator Leahy and other distinguished members of this Committee. I 

am very honored to be before this Committee again. As I reminisced with Chairman Hatch before we started, my first such honor 

was more than 11 years ago, astoundingly, to testify on an issue 

that might seem very different, but I think actually has a lot in 

common. It was in defense of something called the Religious Freedom Restoration Act. 

What it had in common with the testimony we are presenting to 

you today is that that, too, was supported by an incredibly broad 

and diverse coalition entirely across the political spectrum, including Chairman Hatch himself, who was very gracious and courteous. 

I think the broad coalition in support of the reforms that we are 

asking for is illustrated very dramatically by the fact that I am not 

the only witness here this morning on behalf of the American Civil 

Liberties Union. Bob Barr is testifying on behalf of the American 

Civil Liberties Union and the American Conservative Union. 

I was struck as I looked at the transcript of the last hearing that 

this distinguished Committee had on October 21 on these issues 

that Senator Hatch and others indicated that those who are supporting reforms and who are criticizing some of the overreaching 

post–9/11 are the political extremes, the right and left. I think that 

is not true. I urge you to look at the list of 180-plus citizens organizations who support our coalition, right, left and center, and many 

non-partisan organizations, everything from the League of Women 

Voters to many mainstream religious groups. 

I want to also emphasize that the positions we are taking are not 

extreme. The positions we are taking are, first of all, looking at 

every provision of every measure individually. We are not wholesale saying, ‘‘Repeal the PATRIOT Act, take away all executive orders’’. No. 

10

We are simply saying some of these exceed the basic constitutional tests—and I will put on my constitutional law professor hat 

here—namely does this measure really maximize national security 

with minimal costs to civil liberties? That is the substantive test. 

If we can enhance safety to the same extent with lesser costs to 

civil liberties, then that is what we should do, and that is what 

many of the reform measures would do. 

The second test is a procedural one. Do these measures adhere 

to that fundamental core concept pervading our Constitution of essential checks and balances? And here, too, too many of the measures that have been implemented post–9/11 have consolidated 

power, unreviewable power in the executive branch of Government, 

have ignored the oversight responsibilities of this great body, and 

have eviscerated the important power of judicial review. Again, it 

is restoring the checks and balances, not taking away the executive 

branch power, that we are seeking to do. 

I am going to cut right to the chase of the two questions that 

Senator Hatch posed at the outset. Number one, hard evidence of 

factual abuses. I echo and endorse everything that my colleague, 

Congressman Barr, has said. I would just like to add a couple of 

points here. 

Number one, my written testimony, which I hope will be incorporated into the record, on pages 12 to 13 gives specific examples 

of abuses, including specifically under the PATRIOT Act. I did see 

Senator Feinstein’s e-mail that she referred to, or the e-mail from 

a staff member of the ACLU that she referred to, and I am very 

proud of that e-mail. 

This was referred to in the last hearing, in which Senator Feinstein asked a very specific question: Do you have specific, hard evidence of actual abuses of the PATRIOT Act in California? And our 

staff member correctly said we do not have specific evidence of that 

particular type of abuse. I think that is completely responsible, and 

completely inconsistent, by the way, with those who have accused 

their critics of being hysterical and overblown. 

We do have specific evidence of misuse of the PATRIOT Act and 

many of the other post–9/11 powers. I think the most damning 

abuses were—and the most damning documentation was, of 

course—in the report of the Inspector General which Senator 

Leahy has referred to. 

Specifically with respect to the PATRIOT Act, I want to say that 

what the ACLU has the most experience with, and has been the 

basis of a constitutional challenge that we brought, is Section 215 

of the PATRIOT Act. Its mere existence—Chairman Hatch and others its mere existence has already enormously eviscerated the precious First Amendment rights of people in this country. It doesn’t 

even have to be used, let alone abused. 

I would be happy to show you the briefs and affidavits that we 

have filed in that lawsuit, heartbreaking testimony from patriotic 

individuals who say that they have stopped going to worship services; they have dropped out of mosques, in particular. They have 

stopped expressing their political views because they are afraid 

that this power can be used against them. 

I am very struck by the fact that the Attorney General, of course, 

has said that he has not found it necessary to use this power in 

11

order to pursue the war on terrorism. I also noted from the last 

hearing that you asked the very pertinent question of the Government officials, law enforcement officials who were testifying, which 

of the new powers that they had gotten post–9/11 were helpful and 

important to them. And none of the powers that any of those witnesses listed—as Senator Feingold noted, not a single one of them 

included Section 215 or the others that we and other critics are objecting to. So I think this, like RFRA, could be very constructively 

an area where there are common concerns and a meeting of the 

minds. 

Very quickly with respect to Chairman Hatch’s second question, 

what are we asking for, that is laid out specifically on pages 15 to 

16 of my written testimony. High among them is one of the modest 

reform measures that has been endorsed by broad bipartisan leadership, including on this Committee Senators Craig, Durbin and 

Feingold. 

What these provisions would do is return the law closer to where 

it was pre–PATRIOT Act, completely consistent with the testimony 

that you heard from the law enforcement officials at your last hearing. None of these modest reforms—not repeals—would interfere 

with the powers that they have said are necessary for them in 

order to protect us all from terrorism. 

So I very much appreciate this opportunity and look forward to 

continuing to work together constructively. 

[The prepared statement of Ms. Strossen appears as a submission for the record.] 

Chairman HATCH. Thank you. 

Professor Dinh. 

STATEMENT OF VIET D. DINH, PROFESSOR OF LAW, 

GEORGETOWN UNIVERSITY LAW CENTER, WASHINGTON, D.C. 

Mr. DINH. Thank you very much, Mr. Chairman, Ranking Member Leahy, members of the Committee. Thank you very much for 

the honor and the pleasure of being here to talk about this very 

important topic. I have a written statement which I ask to be submitted for the record. 

Chairman HATCH. We will submit all written statements as 

though fully delivered, so you won’t have to say that anymore. 

Mr. DINH. Thank you very much, Mr. Chairman. I would like 

very quickly to go through some of the concerns that the Ranking 

Member and my colleagues have expressed, as well as some concerns that have been expressed in the public debate. 

I first want to echo Congressman Barr’s bipartisan statement 

that we are all in good faith trying to discover the best way to protect the civil liberties and security of America at a time when these 

things are under threat. I know that no one in the Department of 

Justice, no one in the administration, no one at this table or other 

participants in this debate question the patriotism of those who engage in this debate. Governance is not a static process; it is a dynamic process, and I appreciate this Committee taking its time to 

do this valuable work in light of the threat of terror threatening 

our civil liberties. 

I want to go through my opening statement by converting my 

prepared statement to track the constitutional amendments that 

12

seem to be of concern. I want to start first with the First Amendment, and then the Fourth Amendment, and then conclude with 

the Fifth and Sixth Amendment regarding the right to trial by 

jury. 

With respect to the First Amendment, much noise and much criticism has been directed at Section 215 of the USA PATRIOT Act. 

As members of this Committee well know, Section 215 translates 

into the national security context, the Foreign Intelligence Surveillance Act context, powers that preexisted Section 215, powers that 

the grand jury has always had since time immemorial and indeed 

can be exercised by prosecutors and investigators with much lesser 

checks than those that this Committee and Congress have afforded 

in Section 215. 

I do not doubt that individual activists and organizations may 

well feel a chill to their First Amendment activity. I do not doubt 

that these fears are sincere. I am also very confident they are not 

founded because they really should be addressed to preexisting 

criminal processes that preexisted Section 215. And indeed it is a 

legitimate question whether or not to extend to other contexts the 

protections of Section 215 and elsewhere in the Foreign Intelligence 

Surveillance Act that do not permit Government officials to target 

First Amendment activities by the use of these powers. That is a 

legitimate debate. 

Indeed, I note here that in the Attorney General’s revisions to 

the Attorney General guidelines which he published last June, 

June of 2002, at page 7 he instituted administratively such a restriction that investigations not be targeted solely at First Amendment activities, thereby extending the same protection that Section 

215 affords to Foreign Intelligence Surveillance Act authorities to 

general criminal processes. 

I do think that questions regarding confidentiality and secrecy 

are very weighty ones in our constitutional structure, including in 

our criminal processes. That is why I welcome the very significant 

restrictions that Section 215 puts on law enforcement authorities, 

including the accountability provisions that the Department of Justice is under obligation to report to Congress every 6 months. 

With respect to the Fourth Amendment, Congressman Barr has 

noted that there has been significant concern regarding the USA 

PATRIOT Act. And much more importantly, preexisting authority 

in criminal law and foreign intelligence surveillance may have an 

undue burden on our constitutional protection against unreasonable searches and seizures. These are significant concerns. 

One of the commentaries that I have on the current debate is 

that the focus on what are considered to be politically-charged or 

sexy issues, like Section 215, like the delayed notice provisions, has 

drowned out legitimate conversation and debate regarding how we 

go about protecting the Fourth Amendment even as we use these 

very important tools in the Foreign Intelligence Surveillance Act. 

For example, Section 218 of the USA PATRIOT Act makes a very 

critical change to the Foreign Intelligence Surveillance Act to allow 

better communication and coordination between law enforcement 

and intelligence. I don’t think anybody, including those at this 

table and other critics, have questioned that underlying change in 

law. 

13

Many questions, however, are raised by that change in law, including what exclusion procedures would be applicable. Are they 

Fourth Amendment exclusion procedures, are they FISA exclusion 

procedures, or are they procedures under the Classified Information Protection Act? These are the questions that the courts, in particular the district court of Florida in the Sami Al–Arian case, are 

trying to work out and ultimately the courts will answer. But these 

are the kinds of questions that I think the public debate should 

focus on and this Committee will focus on in the near future in 

order to ascertain what, if anything, we can do in order to better 

protect the Fourth Amendment. 

Finally, a note about the Fifth and Sixth Amendments and the 

right to trial. There has been much talk regarding the detention of 

Mr. Jose Padilla and also Yasser Hamdi. Focus has been put on the 

Fifth and Sixth Amendment right to trial and how these rights are 

not being afforded to these particular individuals. 

Also of relevance, of course, is Article II of the Constitution, 

which grants to the President the commander-in-chief authority. It 

is under this authority that the President has sought military detention of these individuals, just as Presidents in other times of 

war have detained battlefield detainees in order to incapacitate 

them from doing harm to our men and women fighting on the battlefield. 

In this war against terror, the terrorist has chosen the battlefield 

not to be restricted to Afghanistan or Iraq, but indeed expanding 

to Morocco, Saudi Arabia, Turkey and, of course, on September 11, 

the World Trade Center and Washington, D.C. In such a circumstance, I think it is an easy question, not particularly an easy 

question, but I think it is only a small step to extend the President’s authority to detain battlefield detainees outside the traditional battlefield. 

A much harder question, one that I think the Supreme Court will 

ultimately answer—and frankly I do not find much support in the 

cases to provide the answer—is whether or not the Court will defer 

to the Executive when there is nothing to defer to; that is where 

there are no alternative processes, either military, executive or 

other types of processes, as we have seen in the past with the In 

Re Quirin or Ex Parte Milligan cases. Those are the questions that 

the Second Circuit grappled with yesterday. I think ultimately the 

Supreme Court will answer those questions. 

I would note, in conclusion, however, that it is not the Court 

alone that should be answering these questions, and it certainly 

should not be the Executive alone. But this body, this Committee, 

has a very significant voice in the constitutional debate, and I sincerely hope that out of these hearings and out of the increased attention paid to these issues would be a Congressional voice with respect to these very, very important issues. 

Thank you very much. 

[The prepared statement of Mr. Dinh appears as a submission for 

the record.] 

Chairman HATCH. Thank you, Professor. 

Mr. Zogby. 

14

STATEMENT OF JAMES J. ZOGBY, PRESIDENT, ARAB 

AMERICAN INSTITUTE, WASHINGTON, D.C. 

Mr. ZOGBY. Thank you, Mr. Chairman. Thank you to you and to 

the Ranking Member and to the members of the Committee for 

convening this important session. 

Much has been done in the last 2 years to combat the threat of 

terrorism. We have had significant accomplishments. We deposed 

the regime in Afghanistan that was hosting those who committed 

damage to our country. We created the Department of Homeland 

Security. We have taken steps to enhance airport and border security and we have improved information-sharing between intelligence and law enforcement agencies. 

Arab Americans are proud to have played a part in these efforts. 

We serve on the front lines of the war on terrorism as police officers, firefighters, soldiers, FBI agents, and translators. My institute has worked with Federal, State and local law enforcement in 

efforts to secure the homeland. 

We helped recruit Arab Americans with needed language skills 

and tried to serve as a bridge between law enforcement and my 

community. Recently working with the Washington Field Office of 

the FBI, my institute helped create the first Arab American FBI 

Advisory Committee. It is now serving as a model for other similar 

efforts around the country. 

As someone who has spent my entire professional life working to 

bring Arab Americans into the mainstream of American political 

life and to build a bridge between my country and the Arab world, 

I am concerned about the direction, however, of some of the efforts 

to combat the terrorist threat and the impact that some of these 

initiatives are having on our country and on my community. 

I am going to leave the constitutional issues to those more qualified to speak about them. But as a professor myself, a professor of 

religion, and someone who has written extensively on the Middle 

East and traveled there and worked in my community here, I want 

to talk about the impact that these initiatives are having not only 

on civil liberties, but also on the very well-being of my community 

here and on our image overseas. 

Specifically, I speak of a number of initiatives that have been 

launched by the Department of Justice, many of which went beyond the PATRIOT Act. First, there was the dragnet that rounded 

up over 1,000—we don’t know the number because they stopped 

giving it when it got too high—in the aftermath of 9/11. 

What troubles me was not the fact that some were arrested and 

charged with immigration violations. But it was the deliberate 

conflation and confusion of those arrests with the war on terrorism, 

creating the impression that hundreds, if not all of these, somehow 

were wrapped up in the war on terrorism. 

The same occurred when the call-up of 5,000 and then 3,000 occurred. The notion was, in other words, that somehow this was not 

just a cleanup operation for an INS system that is in serious trouble, but somehow it had to do with the war on terrorism, creating 

enormous fear in my community and suspicious about my community. 

This was, I think, in many ways exacerbated by the poor way 

that these programs were implemented. For example, when letters 

15

were sent out, in many instances citizens got letters, creating even 

greater fear as to what this program was about. The same happened with NSEERS, resulting in not only the registration of individuals, but fear to go and register, and that fear was compounded 

when many of those who actually abided by the law and registered 

ended up being detained and in some cases are now scheduled for 

deportation. 

These programs combined have harmed individuals and their 

rights. They have created fear. They have also promoted suspicion, 

as many of our fellow Americans view as a result of these programs 

that have been based on profiling recent immigrant Arabs or Muslims as collectively a threat to our country. And when those of us 

who were in leadership roles in my community criticized the programs and how they were being implemented, we found immediately how great the fear and how great the suspicion because we 

became subject ourselves to death threats. 

In fact, it was ironic that the FBI had to go and investigate people who threatened me because I was criticizing some of the programs initiated by the Department of Justice. And these programs 

serve to break trust between ourselves and the FBI. In fact, the 

FBI would call us and criticize these very programs because they 

were concerned that they were breaking down the community policing relationship that we, both of us, were working to establish. 

Equally significant is the impact that these programs have had 

on our nation’s image overseas, and I think is significant because 

the war on terrorism requires partnership, requires trust, and requires a good American relationship with countries that we need 

to be our allies. 

Visitors are down. Student and business visas are down. Doctors, 

and even Fulbright scholars, are down. There is fear of coming to 

the United States, and coming to the United States has been so important in the past for building the relationships necessary to help 

transform not only the way countries view America, but how those 

countries advance and move forward. 

There is also a threat to our image in terms of how we have projected ourselves to the world. I had a debate with a foreign minister of an Arab country and I was arguing with him about the way 

he was treating prisoners in his own country—trial without due 

process, no charges given, no access to attorney, et cetera. After 9/

11 he saw me at one point and said, you know, you are doing exactly what you have accused us of doing. That hurt me as an American and I think it hurts our country. 

If the President is right and reform in Arab countries is necessary to combat terrorism, then we must acknowledge that with 

our post 9/11 behavior, we have stopped setting a standard for the 

world. We have lowered the bar. We are no longer the city on the 

hill that reformers can look up to. We have now become just another one of the guys that abuse human rights. That is wrong and 

it is not good for our country or the war on terror. 

So I close with the observation that I think we have some soulsearching to do. Have these programs that I outlined contributed 

to the war on terror? Have they succeeded in making us more secure, or have they only served the purpose of creating a kind of a 

publicity stunt that says, oh, we are rounding up 5,000 or going 

16

after 3,000 or registering people, with negligible effect on the war 

on terror? 

I think the damage down outweighs any good. In fact, we have 

seen no good from most of these programs, according to the Inspector General’s reports and others. So I think we need to take a long, 

hard look at how we move forward so that we once again become 

America, the country that is looked up to, that sets a standard for 

the world, and can not only be the role model we seek to be, but 

also can become more secure with partners working with us to 

achieve that security. 

Thank you. 

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

for the record.] 

Chairman HATCH. Thank you, Mr. Zogby. 

Mr. Dempsey. 

STATEMENT OF JAMES X. DEMPSEY, EXECUTIVE DIRECTOR, 

CENTER FOR DEMOCRACY AND TECHNOLOGY, WASHINGTON, D.C. 

Mr. DEMPSEY. Mr. Chairman, Senator Leahy, members of the 

Committee, good morning, and thank you for the opportunity to 

testify at this important set of oversight hearings. 

Terrorism poses a grave and imminent threat to our Nation. 

While more needs to be done, huge strides have been made since 

9/11 to improve our counter-terrorism capabilities. We are all very 

fortunate to be protected by the dedicated officials of the FBI and 

the Department of Justice and the other agencies. To do their jobs, 

these officials need powerful legal tools. These powers, however, 

must be subject to controls, standards, and oversight. 

Since 9/11, the Federal Government has engaged in a series of 

serious abuses of constitutional and human rights. The phrase ‘‘the 

PATRIOT Act’’ has become a symbol or a shorthand reference to 

the Government’s response to terrorism since 9/11, but the most 

egregious abuses of civil liberties and human rights have taken 

place outside of the PATRIOT Act or any other Congressional authorization. 

The PATRIOT Act itself contains many useful and non-controversial provisions, but also in the PATRIOT Act, not surprisingly 

given the time pressures and the emotional situation under which 

it was passed, mistakes were made. The pendulum swung too far, 

and important checks and balances were eroded that now need to 

be restored. 

Of course, the FBI should be able to carry out roving taps during 

intelligence investigations of terrorism, just as it has long been 

able to carry out roving taps in criminal investigations of terrorism. 

But the PATRIOT Act standard for roving taps in intelligence cases 

omits some of the important procedural protections that exist on 

the criminal side. 

Of course, the law should clearly allow the Government to intercept transactional data about Internet communications, but the 

standard for both Internet communications and telephones is so 

low that the judges are reduced to mere rubber stamps and cannot 

even inquire into the factual basis for the surveillance application. 

17

Of course, prosecutors should be able to use FISA evidence in 

criminal cases and to coordinate intelligence and criminal investigations, but FISA evidence in criminal cases should not be shielded from the adversarial process, as it has been in every case so far 

where it has been used. 

The worst civil liberties abuses since 9/11, as I said, have occurred outside the PATRIOT Act. These include the detention of 

U.S. citizens in military jails without criminal charges. I think the 

case of Padilla illustrates the inadequacy of the war metaphor applied without thinking to the present situation. We all use it. There 

are clearly war elements to what is going on, such as the operation 

in Afghanistan. 

But as Professor Dinh said, if you start with the war metaphor 

and apply it uniformly, and if you assume that the President as 

commander-in-chief is carrying out his commander-in-chief responsibilities in this war, and if you assume that the battlefield is without borders and that the battlefield includes the United States, 

then as Professor Dinh said, it is a short and relatively easy step 

to say that the President can arrest and incarcerate citizens without criminal charges and hold them indefinitely in military prisons. 

I think the solution there is to distinguish when the war concept 

is correct and when the criminal justice concept must be applied. 

And in the case of citizens, people arrested in this country, the 

criminal justice system is fully adequate to deal with those cases 

and should be used. 

The detention of foreign nationals at Guantanamo and other locations with no due process, I think, is another example not where 

full criminal process should be applied, but at least where there 

should be compliance with the Geneva conventions, which this administration has also sought to avoid. 

The post–9/11 detentions of foreign nationals in the United 

States has been alluded to. The Office of Inspector General at the 

Department of Justice has documented the abuses there. 

Senator Leahy referred to the alleged rendition of suspects to 

other countries, knowing or intending that they will be tortured. 

There is also the abuse of the material witness law to hold aliens 

and citizens alike in this country for long periods of time without 

bringing them before a grand jury or without seeking their testimony. All of these are important, documented civil liberties and 

human rights abuses, all of them, I believe, unnecessary in winning 

this struggle. 

Turning to the PATRIOT Act, one of the clearest abuses concerns 

the use of sneak-and-peek searches in ordinary criminal cases, including even non-violent crimes unrelated to terrorism. The Government admits using the Section 213 authority in non-violent 

cases. These included the investigation of judicial corruption, where 

agents carried out a sneak-and-peek of judicial chambers; a health 

care fraud investigation where they carried out a sneak-and-peek 

of a nursing care business. 

Section 213 fails in its stated purpose of establishing a uniform 

national standard applicable to sneak-and-peek searches throughout the United States and does not give judges the guidance they 

need either in terms of the standards or the length of time for 

which notice may be delayed. 

18

I don’t really know why we are still debating Section 215, the 

business records section. The Justice Department has admitted 

that they have not used this a single time since 9/11, not only not 

for library records, but not for any kind of records. I think it is an 

unnecessary provision and should be repealed. It illustrates the 

failure to examine before the adoption of the law whether any of 

the authorities being sought were needed, but we clearly have one 

there that is not needed. 

The use of FISA evidence in criminal cases without due process 

is another abuse. There is a solution readily at hand, namely the 

application of the Classified Information Procedures Act to ensure 

that FISA applications can be scrutinized and subjected to the adversarial process by defendants. 

And there are other abuses, of course, outside of the PATRIOT 

Act. Congressman Barr referred to some of the data-mining applications. The U.S. Army recently acquired records from the JetBlue 

Airline about air passenger travel without any form of authorization, and that is clearly something that needs to be looked at because I believe that the JetBlue case is really the tip of the iceberg 

in terms of the Government’s use of data-mining techniques. 

We are in an epic struggle. None of us doubt that. These are 

very, very difficult and dangerous times that our country faces. But 

in order to be successful in this struggle, we are going to need 

every check and balance, every guideline, every standard, every 

form of oversight and accountability at our disposal. I don’t see how 

we can possibly win otherwise, domestically or internationally. 

Thank you, Mr. Chairman. 

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

Chairman HATCH. Thank you, Mr. Dempsey. 

Mr. Chishti. 

STATEMENT OF MUZAFFAR CHISHTI, DIRECTOR, MIGRATION 

POLICY INSTITUTE AT NEW YORK UNIVERSITY SCHOOL OF 

LAW, NEW YORK, NEW YORK 

Mr. CHISHTI. Thank you, Mr. Chairman. 

Chairman HATCH. A vote has just started, so what we are going 

to do is try and finish the last two testimonies, then we will all go 

vote. We have two votes in a row, so we will use up most of the 

time of the first vote and then we will try and vote quickly and 

come right back. 

So, Mr. Chishti, we will go to you. 

Mr. CHISHTI. Thank you, Mr. Chairman and other distinguished 

members of the Committee. We applaud you for holding these hearings on this extremely vital topic, and thank you for the invitation 

to testify here. 

The Migration Policy Institute, which is a D.C.-based think tank 

on immigration and refugee matters, recently completed an 18-

month review of our Government’s post–9/11 immigration measures. The report, titled ‘‘America’s Challenged Domestic Security, 

Civil Liberties, and National Unity after 9/11,’’ is a very comprehensive look at our immigration policies from these three distinct perspectives. Doris Meissner, the former Commissioner of the 

INS, is one of the co-authors of the report, along with me. 

19

The report is based on interviews with a wide range of current 

and former law enforcement and intelligence officials, and leaders 

of the Arab American and Muslim and other immigrant communities all across the country. It provides a legal analysis of the Government’s immigration measures since 9/11 and it looks historically 

at how the country has dealt with similar chapters of national crises in the past. 

Most importantly, the report is based on the profiles of over 400 

people detained in the immediate aftermath of September 11. Mr. 

Chairman, we have submitted the entire report and the appendix 

which contains these profiles for inclusion in the record. 

The report concludes that our Government has overemphasized 

the use of the immigration system as the lead weapon against terrorism, at least in the domestic context, since 9/11. The immigration system simply cannot be a lead weapon in the war against terrorism. As an anti-terrorism measure, immigration enforcement is 

of limited effectiveness. The failure of 9/11 was not a failure of our 

immigration policy. It was fundamentally a failure of intelligence. 

But on the other hand, immigration measures that have targeted 

specific nationality groups that Jim Zogby talked about, and noncitizens in many of these measures, have provided us a false sense 

of security, have not made us safer, but instead have undermined 

some of the bedrock constitutional principles and eroded our sense 

of national unity. They have alienated the important and critical 

communities in the Arab and Muslim populations in the U.S., and 

these actions have an echo effect around the world. 

When actions are taken against Muslim and Arab communities 

which alienate them, they deepen the perception in the Muslim 

and Arab world that America is anti–Muslim and our principles 

are hypocritical. That only strengthens the voices of radicals in 

those parts of the world. 

Let me tell you about what we learned from the profiles of 406 

people who were detained post–9/11. As we have heard here, secrecy was paramount in the Government’s actions regarding detainees after 9/11, but we were able to gather these profiles based 

mostly on information we got from lawyers who did their cases, 

sometimes from detainee interviews themselves, and a lot from the 

press reports. Let me give you highlights of these profiles. 

About one-third of these people—and, by the way, the sample of 

406 is thrice the size of the Office of Inspector General’s profile of 

the numbers that they looked at in their report, but it draws similar conclusions. 

About one-third of the people caught after 9/11 were Pakistanis 

and Egyptians, with no clear understanding or explanation of why 

there was such a disproportionate number. Unlike the hijackers 

who we think were rootless and recent arrivals, about 46 percent 

of the people in our sample had lived in the country for more than 

6 years, and about half of them had spouses, children, and other 

relatives in the country. 

A large number of these people were detained for long periods of 

time. About half of them were detained for more than 9 weeks, and 

about 10 percent were detained for more than 9 months. Many 

were detained without a charge being brought against them for 

20

long periods, circumventing the USA PATRIOT Act’s mandate of 

bringing a charge within 7 days of an arrest. 

Fifty-two percent of people in our sample were held on what 

came to be known as FBI holds after a final determination on their 

case, and about 42 percent were denied the opportunity to post a 

bond. We also found that the Government brought people as material witnesses in about 50 cases, which meant that they had circumvented the procedural aspects of detaining these people. 

Six hundred immigration hearings were closed to the public and, 

most importantly, none of the arrests that were made as a result 

of the immigration initiatives of the Government after 9/11 resulted in a terrorism-related prosecution. 

We made recommendations in six areas in our report, ranging 

from Congressional oversight to foreign policy. Let me just highlight only two. Congress has shown extraordinary deference to the 

executive branch on immigration measures after 9/11. In the immediate aftermath of 9/11, that would be understandable, but I think 

it is high time for Congress to reassert its policy and oversight role, 

and evaluate how these immigration procedures have been used 

after 9/11. 

The executive branch, for example, has defended closed hearings, 

and it has defended withholding the names of people whom they 

have arrested on the basis that it provides an important way for 

them to seek informants. I think we need to ascertain whether 

there is validity in these claims via a Congressional committee. 

Detention, Mr. Chairman, is the most onerous power a state can 

have and it should be exercised very carefully. We believe that detentions of more than 2 days after the charge, closed hearings, and 

use of classified information are all matters that should be subject 

to judicial review. 

Finally, the last point I would make is that even in the war on 

terrorism, we are dealing in a world of limited resources, of both 

human and financial resources. It is important for us to spend 

those resources on information-sharing and analysis, on interagency cooperation, instead of having broad, blanket operations 

against specific groups of people. 

The one measure that is still alive today is the special registration program, the call-in registration program that targeted nationals of 25 countries. The Government decided not to extend that program last year beyond the first 25 countries. Since it decided not 

to extend that, we believe it is important that the follow-up requirements of that measure should be abandoned. 

Thank you. 

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

for the record.] 

Chairman HATCH. Thank you, Mr. Chishti. 

Mr. Cleary, we will go to you. 

STATEMENT OF ROBERT J. CLEARY, PROSKAUER ROSE, LLP, 

NEW YORK, NEW YORK 

Mr. CLEARY. Mr. Chairman, Ranking Member Leahy, and members of the Committee, thank you so much for holding these important hearings and for inviting me to present my views. 

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I was the United States Attorney in the District of New Jersey 

on September 11, 2001. Immediately after the attacks, we established a command post which served as the nerve center for the 

New Jersey 9/11 investigation. Because New Jersey as it turned 

out had been a staging ground for the attacks, we played a vital 

role in the global 9/11 investigation. 

In order to illustrate how indispensable the PATRIOT Act is to 

the war on terrorism, and to illustrate why some of the loudest 

criticism against the Act is misplaced, I would like to provide a 

brief glimpse into our command post. 

Those in charge of the command post were gripped on a daily 

basis with an all-consuming fear that another catastrophic terrorist 

attack was about to happen any hour, any day. We did not know 

where and we did not know when. Everyday, we challenged ourselves and we pushed our subordinates to work faster, to work 

more efficiently, to work more expeditiously. 

Our overriding goal everyday was to, as quickly as possible, detect and dismantle any terrorist plot that we feared was on the horizon. Speed and efficiency—those became our watch words in the 

command post, and I would suggest to this Committee that speed 

and efficiency need to be the watch words of every terrorist investigation. They need to be the watch words because those investigations must prevent the next terrorist attack. 

As we soon found out in our command post, the speed and efficiency that we valued so highly was compromised by administrative impediments imposed by antiquated laws. The PATRIOT Act 

removed those obstacles. As just one example, I should mention the 

efforts Government made, that law enforcement made to obtain email evidence. E-mail is a preferred method of communication 

among terrorists. In order to obtain e-mail content, the message 

itself or the subject line, law enforcement quite properly needs to 

obtain a search warrant. 

Here is the problem: Prior to the PATRIOT Act, the law required 

that the search warrant for e-mail content could only be obtained 

in the district where the Internet service provider—Yahoo, America 

Online, Hot Mail, et cetera—where that service provider existed. 

Two of the three largest service providers in this country exist in 

the Northern District of California. 

What that meant as a practical matter during our 9/11 investigation was that our New Jersey search warrant seeking e-mail from 

a terrorist that resided in New Jersey and who had sent e-mail 

from New Jersey—that search warrant could not be filed in the 

District of New Jersey. It had to be filed and only could be filed 

3,000 miles away in California, along with the search warrants 

seeking similar information by every other United States Attorney’s office throughout our country. 

This created an enormous bottleneck because, in addition to the 

paperwork that got filed out there, each and every one of those 

U.S. Attorneys’ offices had to find a prosecutor in California and 

an agent in California who was unfamiliar with our New Jersey 

case to act as the people to submit the application to the California 

judge. This slowed down our investigation, and the PATRIOT Act 

thankfully has removed that bottleneck. And why shouldn’t it? The 

same protections and safeguards that were in place prior to the 

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PATRIOT Act—a need to demonstrate probable cause—apply after 

the PATRIOT Act. 

Similar impediments concerning search warrants for other materials in terrorism cases and for requests for Internet activity have 

likewise been removed by the PATRIOT Act, all without any diminution in the constitutional or privacy safeguards that existed 

under prior law. 

In closing, as a citizen I thank you and your colleagues in Congress for providing law enforcement with the tools they need to 

protect us in the PATRIOT Act. 

Thank you. 

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

for the record.] 

Chairman HATCH. Well, thank you. We appreciate the testimony 

of all of you. We are going to go vote twice now and we will return 

as soon as we can and we will start the questions as soon as we 

get back, and probably start with Senator Leahy. 

With that, we will recess until we can get back. 

[The Committee stood recess from 11:14 a.m. to 11:44 a.m.] 

Chairman HATCH. If we can have order, I appreciate that. 

Let me just ask one question of each of you and then I will be 

happy to turn to Senator Leahy. 

I will ask this question, Ms. Strossen, of you, and I don’t mean 

to single you out. It is just that I think you are probably the one 

who should answer this first. We have heard testimony from several U.S. Attorneys, including Jim Comey, the new Deputy from 

New York, whom the Judiciary Committee just last night unanimously voted on as our next Deputy Attorney General, that from 

a statutory and enforcement perspective our Nation is better prepared to prevent and respond to terrorist attacks than we were on 

the morning of September 11, 2001. 

I have two related questions. First, do you agree that our country 

is better prepared to stop acts of terrorism today than we were 2 

years ago? And, secondly, are our strengthened laws and vigilant 

efforts at law enforcement consistent with our traditional American 

respect for civil liberties and constitutional rights? 

So those are the two questions, and we will start with you and 

then I will go to— 

Ms. STROSSEN. I couldn’t hear the second question. 

Chairman HATCH. Well, the second would be— 

Ms. STROSSEN. I think the sound system isn’t working. 

Chairman HATCH. I am having trouble with this laryngitic voice. 

Are our strengthened laws that we just referred to and vigilant 

efforts at law enforcement consistent with our traditional American 

respect for civil liberties and individual rights? 

Ms. STROSSEN. On the first question, Senator Hatch—are we better prepared to face terrorism—I have never held myself forward, 

nor has my organization held it itself forward as an expert on 

counter-terrorism. I can only hope that we are better prepared. 

I have followed all of the expert analyses that have been made 

publicly available on that issue, including, as far as I know, the 

most in-depth having been done by the intelligence committees of 

both the House and the Senate, the joint inquiry. Although part of 

their findings were, of course, classified and not released to the 

23

public, I did read with great interest the findings and recommendations that were released to the public and I noted with great interest that most of those findings and recommendations had absolutely nothing to do with increasing the Government’s powers of 

surveillance, investigation, and prosecution, but rather had to do 

with what some of the Senators on this Committee referred to in 

the last hearing as nuts-and-bolts problems, mundane but critically 

important, having to do with, for example, improving the computer 

system in the FBI, having more translators. 

And I noted at the last hearing of this Committee on this issue 

on October 21 Senator Leahy was very concerned that the Government still had not followed the repeated recommendations of Congress to do such a basic thing as hiring more translators of Arabic 

and other languages that are obviously essential to really make us 

safer. 

And I continue to be concerned—I must say as somebody who 

flies at least 200,000 miles a year, I have a very deep interest in 

aviation security, and yet I heard just this morning that we are 

only now beginning to institute the beginnings of cargo searches 

even of the air cargo, 22 percent of which goes onto passenger 

flights. So I continue to be concerned about some of these nuts-andbolts steps that have not been taken. 

Senator Hatch, referring to your second question, which I think 

really is kind of the flip side of the first one, I listened with great 

interest to the two Government witnesses here, Messrs. Dinh and 

Cleary, and the only specific example that I heard them allude to 

was in Mr. Cleary’s statement of a new power that had been given 

post–9/11 that was deemed to be necessary, or indeed even specifically helpful in order to improve our counter-terrorism efforts. The 

one specific new power that was referred to by Mr. Cleary was the 

nationwide search warrant power. 

Now, here, too, Chairman Hatch, I want to stress what I said in 

my opening remarks that it is sort of like apples and oranges. The 

Government witnesses are saying we can do a better job to protect 

national security because of these powers, and the civil libertarian 

critics across the political spectrum are saying we object to these 

other powers. 

The nationwide search warrant power is a perfect case in point. 

The only objection we have to the wide-open way in which that new 

section of the law is written is that it is written in such an openended way that it could be used only for judge-shopping. That is 

not the situation that was described by Mr. Cleary. He described 

a situation where there was a legitimate nexus between the jurisdiction where the investigation was going on and that where the 

search warrant application was made. 

So I have not heard anything either today or in this Committee’s 

prior hearings that makes me convinced that we cannot go forward 

with the modest revisions that are put forward in bills such as the 

SAFE bill that would be completely consistent with both civil liberties and the national security concerns that the Government is 

raising. 

Chairman HATCH. Let me go to Professor Dinh next, since he will 

have perhaps another point of view. 

24

Mr. DINH. Thank you very much, Mr. Chairman. I think it is undoubted that the country’s law enforcement and intelligence agencies and our State and local partners in the fight against terrorism 

have more resources, more legal authorities to combat terrorism 

today than they did on September 10, 2001. 

In order to illustrate the necessity and the critical importance of 

these tools that Congress has provided to law enforcement, I would 

simply point the Committee and members of the panel to the May 

13, 2003, submission to the House Judiciary Committee, a 60-page 

document in which the Department of Justice and other Government agencies in response to that Committee gave a section-by-section compendium of how these authorities were used and how they 

were helpful in the fight against terrorism. 

I would note, echoing your opening remarks about the bipartisan 

nature of the fight against terrorism, that the proposals the Congress accepted as part of the USA PATRIOT Act did not come from 

the administration out of the blue right after September 11, but 

rather they came from recommendations, for example, of the Hart–

Rudman Commission which issued its report in 1999, but largely 

recommendations that were unheeded. 

Indeed, we had an opportunity earlier last week to speak on a 

panel with former Deputy Attorney Jamie Gorelick, who noted that 

many of the proposals were ones that she had thought were necessary prior to September 11, but were not acted on before then. 

Do we have more authorities? Absolutely. Is there more work 

that needs to be done? Undoubtedly, including the breaking down 

not just of the legal barriers which Congress has done with Section 

218 of the USA PATRIOT Act, but the institutional and cultural 

barriers to cooperation and collaboration between the intelligence 

community and the law enforcement community, and between 

State and Federal law enforcement communities. I think that these 

sets of hearings elucidate the need for further action, but also to 

evaluate the successes that we have had in the last 2 years of 

keeping America safe. 

Chairman HATCH. Thank you. 

Mr. Barr, we will go to you and then Mr. Cleary, so that we kind 

of have the two different points of view. 

Mr. BARR. Thank you, Mr. Chairman. If I could, as I related to 

both the Chairman and the ranking member, I have a plane to 

catch, and if I could be excused after this. 

Chairman HATCH. We understand and we will certainly excuse 

you. 

Mr. BARR. I appreciate the Committee’s forbearance and apologize for leaving early. I certainly would be happy to answer any additional questions in writing that any member of the Committee 

would care to send. 

Chairman HATCH. We will keep the record open for any questions in writing that members of the Committee would care to submit. 

Mr. BARR. Mr. Chairman, from my perspective as a former intelligence official with the CIA, as a former United States Attorney, 

a Federal prosecutor, as a former Member of Congress and a member of the House Judiciary Committee, and as a defense attorney—

in all of those capacities, and certainly perhaps most importantly 

25

as a citizen observer, I believe that America is safer today than we 

were on 9/11. 

Are we safe enough? No. Will we ever be safe enough to rest assured that there will be no further attacks? No, we will not. This 

is always the risk that anybody, even a free society as ours, faces, 

or especially a free society as ours. 

I do think that when one looks at the legitimate reasons why the 

terrorist attacks succeeded on September 11, one is struck by a 

couple of things. One is the Government pre–9/11 had fully sufficient power to have stopped those attacks. The Government had in 

many respects fully sufficient resources to have stopped those attacks. And that is not necessarily being over-critical of the Government that we did not stop those attacks, but simply to say that 

some mistakes were made both at the local and at the State, as 

well as the Federal level. 

There were indeed poor policy decisions made, such as in the 

Moussaoui case. There was not a legal prohibition on getting access 

to Moussaoui’s computer, but a bad policy decision was made by 

field officials with the FBI, for example. There were security 

breaches at a number of locations, including the aircraft training 

schools, including license bureaus, including access to airports and 

flight facilities and planes themselves, none of which had to do 

even remotely with the expanded powers that the Government 

sought and obtained in the PATRIOT Act, and which it also is taking through these various other programs. 

So I think first and foremost, certainly what we ought to look to 

in terms of remedying those reasons that account for why the terrorists succeeded on 9/11 are indeed deficiencies in preexisting resource allocation prioritization, policy decisionmaking, and effective 

and consistent use of preexisting laws. 

I think also, Mr. Chairman, we ought to keep in mind as we look 

at your second question, and that is the focus on our freedoms and 

traditional constitutional norms in this country—I believe that we 

are in danger of rapidly accelerating a trip down a very slippery 

slope toward effectively completely gutting the Fourth Amendment. 

Now, I know that may sound like an overstatement, but I truly do 

worry about this. 

When we say to the Government that you take the authorization 

to catch terrorists by profiling law-abiding American citizens, by 

gathering evidence on law-abiding citizens and lawful visitors to 

this country without any pretext whatsoever that they have done 

anything wrong, I think we should say to the Government that 

doesn’t appear on the face of it to be the most effective or efficient 

way, or the most constitutional way to catch terrorists. 

I think there are much better ways, much more efficient ways of 

going about this than the route of TIA, CAPPS II, the MATRIX 

program, and so forth. And if we indeed continue down that road, 

I think that we will wake up 1 day in the not too distant future 

when the Fourth Amendment has been effectively rendered meaningless. And at that time, the answer to your question will not only 

be, the way the question was posed, no, we are not fighting this 

fight consistent with traditional constitutional norms, but we may 

be to the point beyond which we can’t even return to those traditional constitutional rights. 

26

Chairman HATCH. My time is up, but, Mr. Cleary, do you have 

additional comments? 

Mr. BARR. May I be excused, Mr. Chairman? 

Chairman HATCH. Sure, we will be happy to excuse you, Bob. 

Thanks for being here. 

Senator LEAHY. I just was going to say, Congressman Barr, I will 

submit questions to you, and among them will be whether you have 

seen the Domestic Surveillance Oversight Act which adds transparency to FISA, the PATRIOT Oversight Restoration Act which 

subjects several controversial provisions of that law to the December 2005 sunset, and the restoration of the Freedom of Information 

Act which protects public access to information regarding our Nation’s infrastructure. 

I will submit that to you because I want to know, one, whether 

you have seen the laws, and, two, whether you support them. 

Mr. BARR. Thank you, and with the Chairman’s indulgence, the 

answer to both questions is yes, I have reviewed them, as well as 

a number of other pending provisions such as the SAFE Act, and 

I do support them, including those that the Ranking Member mentioned. 

Chairman HATCH. Mr. Cleary, we will wind up with you and 

then we will turn to Senator Leahy. 

Mr. CLEARY. Thank you, Mr. Chairman. As to your first question, 

the strength, no doubt we are better able to fend off, to detect, and 

to deter any sort of terrorist attack today much better than we 

were before. In large measure, that is due to two things: one, additional attention given to the problem by both Congress and the executive branch, and particularly as it relates to Congress the tools 

that you have provided which are set forth in my view of that in 

my written statement. In particular, it is the strength of the statutes, the modernization of the statutes, and the speed and efficiency that it provides. 

As to your second question about respect for civil liberties, I have 

no doubt that we can do a better job protecting civil liberties, and 

I am heartened to see that this Committee is focusing on that 

issue. But I think the important point, Mr. Chairman, is to identify 

those particular aspects of the legislative package that really do 

need to be changed or amended. 

A lot of criticism I hear about the PATRIOT Act is simply misplaced. As a simple example, I have read a lot of criticism about 

Section 213, the delayed notification search warrant. Law enforcement has had the authority to seek delayed notification warrants 

for time in memorial, so this is no radical change in the law. 

The law is quite clear that there is no constitutional right to immediate notification. All Section 213 does is codify the standards, 

make them applicable around the country. 

Chairman HATCH. To terrorism? 

Mr. CLEARY. That is correct, Your Honor—I mean Mr. Chairman. 

I have been hanging out in court too long. 

Senator LEAHY. That is what all the rest of us call him, I want 

you to know. 

[Laughter.] 

Chairman HATCH. I hate to tell you what they call me. 

27

Mr. CLEARY. So the point being that we need to identify those 

areas that really do affect individual rights and liberties in a way 

that they had not been before. 

Ms. STROSSEN. Is it possible to respond to that characterization, 

because here I hear a joinder of issue which we really haven’t had 

so far? 

Chairman HATCH. If you can do it quickly. 

Ms. STROSSEN. Unfortunately, it is not correct that Section 213 

merely codifies preexisting power in a number of respects. Number 

one, Section 213 applies to any crime, not just terrorism crimes. 

Number two, Section 213 allows the Government to get delayed notice not only in the three specific situations that had been allowed 

under prior law, namely if life or physical safety is threatened, 

number one; number two, if there is a danger of fleeing prosecution; number three, a danger of tampering with or destroying evidence. Instead, Section 213 adds a catch-all provision of any adverse impact to the Government’s interest. 

And finally, and very importantly, Section 213 does not specify 

a presumptive length of delay. It is an open-ended, undefined, 

quote, ‘‘reasonable period,’’ whereas the two circuit courts that had 

previously upheld this authority had had a presumptive delay of 

only 7 days, subject to renewed showing by the Government. 

And this is a perfect example, Chairman Hatch and Senator 

Leahy, of why the SAFE proposal is such a safe one, ensuring safety and freedom, and because it would restore those safeguards, reasonable safeguards that had existed in prior law. 

Chairman HATCH. Mr. Cleary. 

Mr. CLEARY. The prior power to conduct sneak-and-peek, like the 

213 power, applied to all crimes, not just terrorism crimes. So there 

has not been a change in the law in that respect. Whether there 

is going to be a presumptive period that the courts impose in their 

interpretation of 213, as was the case under prior law, is something 

that has not been determined yet. So the law is very consistent, 

with minimal change. There has been an additional basis to seek 

a Section 213 sneak-and-peek warrant, but that is a basis that is 

available nationwide, making for consistent application of this important tool. 

Chairman HATCH. What is the purpose of the so-called sneakand-peek? 

Mr. CLEARY. The purpose, Mr. Chairman, is so that investigations do not get compromised if they are continuing past the time 

of the execution of the warrant. If a Title III wiretap is up and running and providing productive information to the Government but 

there is a time to execute a warrant, you don’t want to compromise 

the ongoing Title III wiretap, as an example. 

Chairman HATCH. And you are saying this has been used in general criminal law for a long time? 

Mr. CLEARY. Yes, it has. 

Chairman HATCH. Senator Leahy. 

Senator LEAHY. Thank you, Mr. Chairman. I will put in the 

record a statement by Senator Kennedy and a number of other submissions for the record, if I may. 

Chairman HATCH. Without objection. 

28

Senator LEAHY. I have asked the question, of course, of former 

Congressman Barr and I was pleased that he is supportive of our 

three bills that I, along with others in both parties, have introduced—the Domestic Surveillance Oversight Act; the PATRIOT 

Oversight Restoration Act, which adds to the sunset provisions; 

and the restoration of Freedom of Information Act to make sure 

that citizens have the ability in our country to know what is going 

on. 

The Freedom of Information Act was of particular importance to 

me because it has been my experience here after 29 years and 6 

different administrations that all administrations, no matter which 

party controls the White House, are very eager to send out reams 

of press releases when they feel they have accomplished something 

which sheds good light on them and will be politically helpful, and 

are somewhat reluctant to do that if it is the other way around. 

The Freedom of Information Act has been a chance for the press 

and the Congress, but especially the press, to find out those things 

that go wrong, as well as those things that go right. Democracy is 

better off if we know about the things that go wrong because then 

we have the ability to correct it. 

Now, Professor Strossen and Mr. Zogby, I am going to ask you 

this question. I mentioned earlier in my opening statement that I 

am concerned that the United States may be engaging in the rendition of non-citizens to countries who rely on torture as a means 

of interrogating prisoners. We are all well aware of the Canadian 

Syrian citizen who was sent to Syria, instead of back to Canada 

where he resides. 

We all know that torture is a crime. The United States has always condemned torture. And, of course, we all know that if you 

make a couple of exceptions here and there for torture, then the 

exceptions become the rule. If the United States is seen as being 

complicit in torture, it makes it very difficult for the United States 

to articulate a moral position against torture, whether it takes 

place in China or Iraq or Chile or Pakistan or anywhere else. 

If an American soldier is captured and tortured now, how do we 

say, well, we have always been against this? Or if torture is justified to obtain information from a suspected terrorist, well, then 

why can’t we justify torturing the terrorist’s spouse or terrorists’ 

children, or friends or acquaintances of those who work with a suspected terrorist who might know about his whereabouts? 

A lot of Members of Congress on both sides of the aisle have 

criticized other governments numerous times for treating prisoners 

that way, and we stand up for the rule of law. So now, having done 

that, I understand, Professor Strossen, that the ACLU filed a Freedom of Information Act request and a subsequent lawsuit with relevant agencies to obtain general non-classified information about 

the Government’s practice of rendition. I have tried to get the same 

information and have not been very successful. 

Have you been successful? 

Ms. STROSSEN. Not yet, Senator Leahy, and before I answer that 

I would like to take this opportunity to say that my staff expert 

said I made one misstatement on Section 213, and I want to correct 

the record immediately because precision and accuracy are critical 

here. It is true, as Mr. Cleary said, that that power was not preVerDate 0ct 09 2002 12:07 Jun 15, 2004 Jkt 094064 PO 00000 Frm 00032 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\94064.TXT SJUD4 PsN: CMORC
29

viously limited to terrorist cases, but the other two distinctions 

stand. 

Senator Leahy, we really appreciate your vigorous defense of 

FOIA and freedom of access to information, in general, including 

with respect to this issue. This is one of many Freedom of Information Act requests that the ACLU has submitted since 9/11 in an attempt to get basic information about how our Government is conducting the so-called war on terrorism. 

As you probably know, we have not been successful in getting answers from the Government to any of those requests and in some 

cases have already gone to court. In some cases, the courts have 

ordered the Government to turn over the information. In one such 

case, the request is now pending before the United States Supreme 

Court to get the names of those hundreds of post–September 11 detainees who turned out, according to the Inspector General, only to 

be innocent immigrants—I am sorry—guilty of immigration violations to be sure, but hardly guilty of or even charged with terrorism. 

With respect to the request that we submitted in September, 

Senator Leahy, just this morning I spoke to the lawyer for the 

ACLU who is the lead counsel on that case, Jameel Jafir, and he 

told me that we have as yet not gotten any information from any 

of the Government agencies from which we had sought information—and by the way, it was information that was sought based on 

plausible press accounts, including quoting anonymous senior officials who not only said that our Government was rending to countries that are, according to our own State Department, engaging in 

torture and other degrading and inhumane treatment, but also that 

there were senior officials who were participating in this knowingly, and perhaps even encouragingly. 

So rather than the general conclusory denials that we have gotten from the administration which are welcome, that is only the 

first step. We are asking for documentation. 

Now, when I spoke to Jameel Jafir this morning, I said I looked 

at the date of our FOIA request and isn’t the Government’s answer 

overdue? And he said, well, they are always late. So we are, in fact, 

contemplating litigation yet again to enforce what should be turned 

over under the statute. 

I would like to add one other comment about that FOIA proceeding, Senator Leahy, and that is that the ACLU and the Center 

for Constitutional Rights are bringing that together with not only 

Physicians for Social Responsibility, but also—I think this is very 

significant—two veterans organizations whose members have 

fought in every war from the Vietnam War and earlier to the first 

Gulf War. They understand better than anybody else how the lives 

of American men and women, service members, are jeopardized, 

how they are in danger of being tortured themselves. 

Senator LEAHY. I understand that and I appreciate it. I am sorry 

to cut you off, but certainly you will have time to add more. But 

in the time available, I did also want to ask a question of Mr. 

Zogby, who is, as we know, the respected head of a highly regarded 

organization. I ask you this question, Mr. Zogby, because you are 

in contact with people throughout the Arab and Muslim world. 

30

How do you believe that citizens in predominantly Muslim nations are going to react if they find that it is true that the United 

States sent back an individual to Syria for interrogation? The citizen was allegedly tortured while he was detained there. What is 

that going to do to our image overseas, especially in the Muslim 

world? 

Mr. ZOGBY. Thank you, Senator. I am very troubled about this 

because not only in the case of the Syrian Canadian citizen who 

was sent to Syria for them to get the information from him that 

we apparently wanted, but it appears that on a number of levels 

we have moved in a very different direction. 

There are reports from Afghanistan and Iraq that we may be 

sliding down the slippery slope ourselves of using cruel, inhumane 

and degrading treatment of detainees, and/or of civilians whom we 

treat in a manner equal—something that can be characterized as 

collective punishment in order to get their relatives to turn themselves in or to get information from them about their relatives. I 

am concerned about that. 

I am concerned about the cooperation that we have had with several countries in the Middle East, Israel and Arab countries, accepting intelligence information from them that we know was derived by means that we in the past have found unacceptable. 

The problem exists on two levels. Certainly, there is the public 

opinion level that you have raised, and I find that worrisome and 

I am hearing it. But I am also worried about the impact it has on 

the leadership level because, in fact, they feel we have now joined 

the club. 

Senator LEAHY. On the leadership level. You mean the leadership of these other countries? 

Mr. ZOGBY. Of countries in that region. We have now joined the 

club. We validate what they have always done. So if President 

Bush is right, and I believe that he was when he noted that reform 

and advancement of human rights and democratic rights is critical 

in the war on terrorism, I believe that practices such as these undercut the fundamental truth in that message. 

We validate practices on the one side that the President is criticizing on the other side, and so we set back the movement for reform. That is the detriment of our overall program; it is to the detriment of our values that we have sought so intensively to project 

in the world. I think that it harms our country and it harms our 

ultimate goal of combating terrorism by promoting reform and a 

democratic agenda. 

Senator LEAHY. Thank you. 

I notice my time is up, Mr. Chairman. I do have other questions, 

especially about national security letters and I will submit those to 

Mr. Dempsey. I am especially curious about those that may be 

given to everybody from a real estate agent to a car dealer and effectively shut down their business. 

Thank you. 

Chairman HATCH. Thank you, Senator Leahy. 

Senator Kyl. 

Senator KYL. Thank you, Mr. Chairman. 

Part of the problem that I think we have here—and I appreciate 

the effort of some of you to find joinder on specific issues because 

31

at the end of the day, as legislators, we are going to have to come 

together and refine the law, if that is called for—but part of the 

problem in doing that is the kind of political climate that has been 

created by hyperbole and, shall we say, over-zealous language. 

All of you represent respected national organizations or are associated with the enforcement of the laws and therefore clearly appreciate how important it is to be precise as lawyers and to try to 

keep the debate from rubbing the raw emotions that are so close 

to the surface on this particular issue. 

There are several examples that I could point to here, but let me 

focus a little bit on the ACLU because it has a reputation as a respected and careful organization. I think in your testimony today, 

Ms. Strossen, you have certainly tried to do that, but I note on the 

website, for example, at least according to the extract that has 

been provided to me here for high school and college students, 

www.stopthepatriotact.org. ‘‘Stop the PATRIOT Act’’; the title 

itself, it seems to me, is not designed to encourage a fair debate 

and careful examination. 

According to the website, you claim that Section 802 of the PATRIOT Act, and I am quoting now, ‘‘broadly expands the official 

definition of terrorism, so that students groups that engage in certain types of civil disobedience could very well find themselves labeled as terrorists,’’ end of quote. 

It is my understanding that under Section 802, a protester can 

only be said to be engaging in domestic terrorism if he or she partakes in criminal wrongdoing that could result in death. So the 

question I ask you is whether that is a fair statement or whether 

it encourages this kind of hyperbole that prevents the kind of careful discussion that I think we need to have. 

Ms. STROSSEN. A very fair question, Senator Kyl, and as you can 

tell from comments I have already made today, I take great pride 

in the carefulness of my organization, which depends for its credibility on not overstating. That is why Senator Feinstein received an 

answer that we did not know whether the PATRIOT Act was being 

abused in California. 

First of all, I would say please do not judge any organization by 

the name of the website. Obviously, that is overly simplified, and 

as you could tell from the content of the website itself, it was not 

calling for a repeal of the PATRIOT Act. Al Gore did that. The 

ACLU and its website did not. 

We have always listed a number of specific provisions that are 

troubling and have troubling implications. Section 802 is one of 

them. By the way, Congressman Bob Barr’s written testimony, as 

well as my written testimony, give specific examples that are of 

concern, in Bob Barr’s case specifically to conservative organizations in the right-to-life movement and gunowners’ movement. Let 

me tell you the exact language. 

Senator KYL. Can I just note that we only have a very limited 

amount of time, so if you could answer my question, I would appreciate it. 

Ms. STROSSEN. Here is the exact language: ‘‘Domestic terrorism 

means activities that involve acts dangerous to human life, that are 

a violation of the criminal laws of the United States or of any state, 

32

and appear to be intended to influence the policy of government by 

intimidation or coercion.’’ 

So if you have a student group—let’s use Bob Barr’s example 

that it is a pro-life student group that is engaging in an activist 

tactic of exercising its First Amendment rights outside of an abortion clinic, engaging in some scuffles with members of the public 

that are trying to enter or exit from that facility. As we know, some 

of those organizations have done that. It could be dangerous to 

human life. 

Senator KYL. Scuffles are different than threats to life or danger 

to life. 

Ms. STROSSEN. Actually, acts dangerous to human life—there are 

cars coming in and out of parking lots. 

Senator KYL. I think I make the point— 

Ms. STROSSEN. I hope that a prosecutor— 

Senator KYL. —that you stretch beyond the point of reason, and 

names like that and stretching this beyond reason don’t contribute 

to a careful debate. Some of us up here are willing to examine some 

of the legal points that have been made. 

Mr. Zogby, with all due respect, you are a person whose views 

are respected in this city, but when you refer in your testimony to 

John Ashcroft’s Justice Department, it is not in a respectful way. 

It is a way that he is referred to by people who don’t respect him. 

Ms. STROSSEN. Senator Kyl, may I please respond because we did 

make a specific proposal that I think would be consistent with your 

concept and the general concept of terrorism? That would be an intent to harm human life or endanger human life. This talks about 

‘‘involve acts that are dangerous and that appear to be intended’’— 

Senator KYL. If I could make the point now, it was that your 

website is inciting people to opposition in an inappropriate and 

emotional way. You may have recommended very sensible solutions. It would be far preferable to suggest on your website that 

there may be a potential danger with wording of a definition of terrorism rather than suggesting to students that their activities in 

civil disobedience could characterize them as terrorists. 

The reason I make this point is that the ACLU has been such 

a leader in trying to prevent the chilling of the expression of First 

Amendment. 

Ms. STROSSEN. Thank you. 

Senator KYL. And yet this kind of hyperbole will chill students 

from engaging in activity that would clearly not be defined as terrorism because of the way you have expressed it on your website. 

Ms. STROSSEN. Well, our concern is that the language of the Act 

is hyperbolic, and I hope that we are inciting students to exercise 

their First Amendment rights to lobby for the kinds of reforms to 

this law that we are advocating. 

Senator KYL. Let me cite a couple of other examples. You talk 

about invading—‘‘the Government has knowledge using delayed notice and search warrants to invade dozens of homes and businesses.’’ Now, getting a court-ordered search warrant doesn’t fall 

into my definition of invading a home. 

When you talk about the ability of the FBI to enter mosques and 

political meetings on a whim, out of curiosity, I think you would 

33

have to agree that if you look at the wording of the FBI guideline, 

that is hyperbolic. 

Go ahead and respond. 

Ms. STROSSEN. With all due respect, I disagree. First of all, I do 

completely agree that if the Fourth Amendment, with its requirements of probable cause and a search warrant issued by a neutral 

and independent magistrate, were adhered to, that is fantastic. 

That is an A-plus from a civil liberties point of view. 

But we don’t even have a requirement of individualized suspicion 

under many of the powers that we are complaining about in the 

PATRIOT Act. And the most important case in point—we keep 

coming back to it—is Section 215 which requires even less than relevance. All the Government has to do is assert that it is seeking 

the information for a terrorism investigation and the judge must 

issue the warrant. Worse yet is Section 505, which Senator Leahy 

began to refer to, which doesn’t require any judicial participation 

at all. It is simply unilateral action by the Government itself. 

Senator KYL. Going to a public place in which there is no expectation of privacy, is that not correct? 

Ms. STROSSEN. That is not correct, sir. Section 215 applies to any 

record that is held by anybody, anywhere, and Section 505 refers 

to certain kinds of records, regardless of where they are held, but 

typically by financial institutions and the other specified businesses. So it would be private business premises. 

Senator KYL. I thought you were talking about the FBI guidelines. 

Ms. STROSSEN. And the FBI guidelines—yes, thank you—also 

what they do is turn back the prior guidelines that had been put 

in place since Congress’s investigation and hearings into the 

COINTELPRO abuses. 

Senator KYL. So you defend the ‘‘whim and curiosity’’ portrayal? 

Ms. STROSSEN. Unfortunately, it can be any reason. No reason is 

required. 

Senator KYL. And you also defend the characterization of search 

warrants to invade—this is a court-ordered search warrant—to invade dozens of homes and businesses? That may be a minor point, 

but language matters. 

Ms. STROSSEN. If what you are talking about is 213, which is a 

court-ordered search warrant, it is an invasion in the sense that 

the time-honored requirement of knocking on a house before you 

enter it is no longer applicable. 

Senator KYL. I understand you are defending the language still. 

Ms. STROSSEN. I am. 

Senator KYL. Let me ask, does anybody here believe that the PATRIOT Act, as distinguished from other Government policies, because this is where confusion—and I appreciate some of you pointing out that confusion—that the PATRIOT Act essentially suspends 

habeas corpus? Does anybody believe that that is true on this 

panel? 

Let the record reflect nobody is answering that question in the 

affirmative. 

Ms. STROSSEN. I certainly am concerned about what remains of 

habeas corpus, which unfortunately had been gutted through a series of Supreme Court decisions and prior legislation. 

34

Senator KYL. The PATRIOT Act, not other Government policies 

that we are talking about, the PATRIOT Act itself. 

Ms. STROSSEN. Other Government policies certainly contributed. 

Senator KYL. But my question is does the PATRIOT Act essentially suspend habeas corpus. 

Mr. DEMPSEY. There is nothing in there one way or the other. 

Chairman HATCH. I didn’t hear you. 

Mr. DEMPSEY. There is nothing in there one way or the other. 

Senator KYL. Thank you. 

Mr. ZOGBY. Senator, before we leave, did you throw my name out 

on a whim or was there something there? 

Senator KYL. I didn’t throw it out. I specifically referred to you, 

though, and if you would like to respond, you are very welcome to 

do so. 

Mr. ZOGBY. I don’t quite get what the point was. 

Senator KYL. What I was trying to say— 

Mr. ZOGBY. I mentioned John Ashcroft’s Department of Justice— 

Senator KYL. Yes, yes, you did. 

Mr. ZOGBY. —as opposed to Janet Reno’s Department of Justice, 

as opposed to the career officers who serve in that department, and 

FBI and law enforcement officials who serve throughout successive 

administrations, et cetera. It was a descriptive term, meant nothing more, nothing else. 

Senator FEINGOLD. Mr. Chairman, I want to agree with Mr. 

Zogby on this. I know it is out of order, but there is absolutely 

nothing wrong with referring to John Ashcroft’s Justice Department. The only error is you should have called it what it really is, 

George Bush’s Justice Department. That is what it is. That is the 

only error. 

Chairman HATCH. Now that we have that clear— 

[Laughter.] 

Senator KYL. I appreciate the clarification on that. Thank you, 

Mr. Chairman. 

Chairman HATCH. Mr. Cleary, you had some comments. Mr. 

Dempsey, you had some comments. Mr. Dinh, you had some comments. Let’s go in that order. 

Mr. CLEARY. Thank you, Mr. Chairman. I just wanted to talk 

about Section 215 briefly, which is another section people have 

talked about here today that I think misses the point of where our 

attention should be focused. Our attention should be focused on 

civil liberties issues. This is not one of them. 

What 215 does is it allows the FISA court to issue an order seeking the production of tangible things, and this has become in the 

popular media a concern about library records, what are people 

doing in the library. All this statute does with respect to libraries 

is allow the intelligence community to do what criminal investigators have done historically, and that is to obtain library records. 

Chairman HATCH. In libraries? 

Mr. CLEARY. That is correct, and as one case in point I would 

point back to the Unabomb investigation. 

Chairman HATCH. You actually tried that case for the prosecution? 

Mr. CLEARY. That is correct, Mr. Chairman, and those of you who 

may remember, Theodore Kaczynski sent what became known as 

35

the Unabomb Manifesto before he had been identified. That manifesto identifies or quotes from a number of books and one of the 

things the investigators did, with a subpoena, is go to the local library in Lincoln, Montana, and find out that through an exchange 

program run by that library, a fellow named Theodore Kaczynski 

had checked out a number of those books, and that became a large 

part of the probable cause showing that was used to get the search 

warrant to search Kaczynski’s cabin and the rest is history. 

I use that as one very dramatic example of how historically the 

Government has been able to obtain records from libraries and 

should be allowed to do it. That is with a grand jury subpoena 

where there is no court oversight. What 215 does is provide for an 

order for similar sorts of records, but pursuant, and only pursuant 

to the FISA court’s oversight. 

Chairman HATCH. Thank you. 

Mr. Dempsey and then Mr. Dinh. 

Mr. DEMPSEY. Well, Mr. Chairman, there are several points that 

could be responded to here. Let me just for a second respond to a 

question that Senator Kyl raised which has to do with the FBI 

guidelines. 

The language of the guidelines says that for the purpose of detecting or preventing terrorist activities, the FBI is authorized to 

visit any place on the same terms and conditions as members of 

the public generally. Now, as a guideline, this gives no guidance. 

It doesn’t say how to prioritize, it doesn’t say how to focus investigative activities, it doesn’t say what to do. It says that an FBI 

agent can do whatever a member of the public can do, which is you 

are walking down the street and you say, oh, there is a nice interesting building, nice architecture, let me walk into it. I think that 

is a whim. 

Now, I don’t think that this serves the national security interest 

of telling FBI agents how, given limited resources and a terribly 

overwhelming problem, to focus their activities, where to go, when 

to go, how to decide what to do. So they are left rudderless. 

The fear, of course, is that they will be guided by inappropriate 

factors such as ethnicity, religion, political factors, et cetera. But 

even leaving those aside, the guidelines provide no guidance, and 

in that sense I think they need to be revisited. 

Chairman HATCH. Mr. Dinh, and then we are going to go to Senator Biden. 

Mr. DINH. Thank you, Mr. Chairman. On that very quick point, 

the Attorney General’s guidelines are guidelines; they are not exclusive of all the various training procedures and supervision that 

the Department of Justice imposes on, and the FBI internally imposes upon its own personnel with respect to they conduct investigations. 

This merely states very clearly that for purposes of terrorism investigations, the FBI agents have the same authority as any community police officer does in order to be on the same terms and 

conditions as general members of the public. 

Two other clarifications. Section 802, it must be pointed out, is 

not a substantive provision; it is merely a definitional provision. It 

amends, it adds to Section 2331 of Title 18 of the United States 

36

Code a definition of domestic terrorism; that is, terrorism that occurs within the geographical boundaries of the United States. 

The reason that was necessary was prior to the USA PATRIOT 

Act, the only definition of terrorism was international terrorism; 

that is, terrorism that occurs outside the geographical boundaries 

of the United States. It is meant to be a geographical description, 

not a purpose or an intent provision. 

And even so, when this Committee considered the provision, it 

was very careful. It did not import the previous definition of international terrorism lock, stock and barrel. But, rather, the definition 

of international terrorism is violent acts or acts dangerous to 

human life that are a violation of the criminal law of the United 

States or States of the Union. 

When the Committee considered that definition, it removed the 

phrase ‘‘violent acts’’ precisely because of a fear of potential chilling 

or overreach into acts occurring in the geographical boundaries of 

the United States that might otherwise be protected by the letter 

or the spirit of the First Amendment. 

Let me repeat, it does not criminalize domestic terrorism. Rather, it gives a definitional base for other crimes, most significantly, 

for example, Section 805, which is terrorist financing. Without that 

definition, it would apply to terrorist financing that occurred outside the geographical boundaries of the United States, but would 

stop when the boundaries of the United States take hold. I think 

it is simple common sense in order to extend that definition. It is 

also very careful work by this Committee to protect the interests 

of the First Amendment in that regard. 

The mischaracterization has been endemic on this provision. I 

want to be very, very clear. Even very, very distinguished scholars, 

one of them my beloved colleague, Sam Dash, have made the same 

mistake in other places. And it just suggests it is not an error of 

characterization, but simply a fundamental error of misunderstanding that I think should be corrected. 

Chairman HATCH. Senator Biden, Mr. Zogby wanted to make one 

comment and then I will go to you. 

Mr. ZOGBY. Just one comment to Senator Kyl. 

I agree with you, Senator, about the need to use temperate language and to avoid overladen rhetorical expressions and emotionally-driven language that can be very damaging to this political 

discourse. It is an important discussion. 

But I would suggest to you that there have been repeated hearings that I have taken note of on very sensitive issues close to this 

discussion about the nature of Islam, about Wahabbism, about 

Saudi Arabia, and about Muslims in America that have frequently 

featured individuals who have used rhetorical excess, who have not 

helped us better understand these phenomena, and who frankly 

have had a political agenda designed specifically to obfuscate and, 

I believe, to inflame passions. 

And I would urge you, let’s make this a two-way street. Let’s 

have a temperate discussion. Let’s come to an understanding of 

where we are, what we need to do, and how we have to proceed 

to better understand each other so that we can better serve, I 

think, our collective goal of making our country more safe, secure, 

respected, and understood. 

37

Thank you. 

Chairman HATCH. Thank you. 

Senator Biden. 

Senator BIDEN. Thank you very much, Mr. Chairman, and thank 

you for holding the hearing. I am going to try to see if I understand 

whether there are any points of general agreement here among all 

of us first. 

I might note that I—and I will say this for the record, but I have 

said it before, that a lot of the difficulty and a lot of the misunderstanding, to the extent there is any, I think is a consequence of the 

attitude of this administration, not merely actions, but the attitude 

of this administration of not being responsive to, in my view, this 

Committee. 

I know the Chairman is a good man. Just as I might find myself 

when I was Chairman—and thank God, I am not anymore—when 

I was Chairman of this Committee or Ranking Member for 18 

years, when you have an Attorney General of your own party, you 

try to be helpful if you can even when you disagree. I am not suggesting the Chairman disagrees, but I found myself in that spot 

once in a while. 

There has been not a whole lot of disclosure. There has not been 

a whole lot of cooperation and there has been an attitude of arrogance that has emanated from this administration with regard to 

this legislation. I think that feeds into some of the necessary corrections that need to be made in the PATRIOT Act. 

I have been a Senator for 31 years. There is not one major piece 

of criminal legislation in the last 21 years that I haven’t cosponsored or written, and every time we pass one I say the same thing. 

This requires us to go back and look at it after a year or so. We 

make mistakes. 

So if we had the normal oversight of this, with cooperation in a 

very tenuous time, at a time when it is not surprising that there 

are excesses in American society on the part of Government—and 

I know it is an old saw, but Franklin Roosevelt took every Japanese American and put them behind barbed wire. So bad things 

happen when very bad things happen and people are frightened. 

That is why we are here, for oversight. That is the purpose, and 

that is why some of this was sunseted as well. 

But if I read through this, the bulk of—don’t be defensive, either 

side of this debate—the bulk of the most egregious mistakes made 

on the part of our Government, I sense from all of you, are things 

that occurred unrelated to the PATRIOT Act. So let’s kind of put 

this in context. It doesn’t mean the PATRIOT Act shouldn’t be 

scrapped or altered or amended or touched, but the bulk of the 

things that have caused us the worst—I have changed seats; I am 

now on the Foreign Relations Committee as the senior Democrat. 

I can tell you that Guantanamo Bay has done more damage to the 

United States image abroad than anything else that has happened, 

anything else that has happened. 

Without passing judgment on whether we should or shouldn’t 

have had Guantanamo Bay, the fact of life is as I travel the world, 

no matter where I am, this is brought up. I think it has endangered American soldiers. I think it has endangered the American 

military. I think it has endangered American diplomats. I think it 

38

has endangered American personnel. So you can see the effects of 

it in non-judicial ways, in non-legal ways just in terms of the perception of who we are. 

I think there is an absolute need for us to redefine, for Congress 

to exercise its responsibility, as Schiff has in the House, and as 

some of us over here—Durbin, Feingold, and others have talked 

about redefining or defining, laying out definitional criteria for 

what constitutes a combatant and a whole lot of different things. 

That is our responsibility, and history is going to judge us on not 

that we didn’t do it within a year or two, but if we don’t get about 

doing it pretty soon. So we are still within the time warp that it 

takes big nations, like supertankers, to turn around here, and 

hopefully we will do that. 

I want to now move to the PATRIOT Act to make sure I understand, again, if there is any consensus. We are basically talking 

about—and when I say basically, it doesn’t mean it is inconsequential. We are talking about a disagreement relating to basically 

three sections of the PATRIOT Act—213, the delayed notice provisions; 215, FISA and the changes in FISA that are accommodated 

in this Act, and there are changes; and 802 in terms of definitional, 

whether, A, it is a definition, what its meaning is, and if it is a 

definition, whether it can be further refined, or go back behind it 

to 2331 and redefine it. 

So the arguments are who are terrorists; if there are terrorists, 

if it is a suspected terrorist, what constitutes the ability for a court 

to allow delayed notice and the fact that you have gone in and impacted on their Fourth Amendment rights; and whether or not 

FISA, in fact, has been expanded in a way that is a problem. 

Now, as the author of FISA, I find myself in an interesting dilemma here, and that is that I suspect, Professor, you don’t like 

FISA, period. So part of your criticism, which is totally legitimate, 

by the way—I am not in any way impugning anyone’s motive here, 

okay? 

You are not for FISA, period. You don’t think there should be 

FISA. 

Ms. STROSSEN. Well, actually, I consulted with my staff experts 

to see whether my instinct was right, which was that it was better 

than the prior law which it corrected. 

Senator BIDEN. But you still don’t like it. It is okay. A lot of people don’t like it. 

[Laughter.] 

Ms. STROSSEN. We love the Fourth Amendment. 

[Laughter.] 

Senator BIDEN. Look, I will be candid with you if you are candid 

with me, all right? 

Ms. STROSSEN. We prefer the Fourth Amendment. 

Senator BIDEN. It is time to be straight up about this, right? 

Ms. STROSSEN. As you know, it was a compromise on both sides, 

and I think it was a workable compromise. 

Senator BIDEN. I know. I wrote it. I am the guy that wrote it. 

I understand the compromise, and I understand my usual allies in 

the civil liberties community were opposed to it, period. So let’s not 

kid each other here, all right? 

39

So part of the problem is not merely whether or not FISA has 

been—my first question is if we amended FISA like I think we 

should, as Senator Feingold has suggested—and I happen to think 

he is right—to essentially take FISA and bring it back to the 

standard required prior to the PATRIOT Act, would you be for it, 

then? 

Ms. STROSSEN. We would certainly support that. 

Senator BIDEN. Okay. 

Ms. STROSSEN. That is in the SAFE Act; it is in several other 

Acts. 

Senator BIDEN. Would anybody else who is opposed to the PATRIOT Act think that is—let me back up. For those of you who believe, with good reason from your perspective, that this Act, the 

PATRIOT Act, per se, has a chilling effect and it is a bad idea, et 

cetera, is there anything other than repeal of the Act, total repeal, 

that would satisfy you in the sense that you would say I now support the Act, other than total repeal? 

I am not being a wise guy. I am trying to get the parameters 

here so we know what we are talking about. 

Ms. STROSSEN. Well, Senator Biden, I could say that in addition 

to the three reforms that you referred to, there is an additional one 

in the SAFE Act itself, which is constricting the roving wiretaps 

authority, which now do not have safeguards to protect against 

sweeping up conversations by innocent people. So that is one more 

reform. 

Senator BIDEN. Again, I am the guy that proposed the roving 

wiretaps in previous legislation. 

[Laughter.] 

Senator BIDEN. No, seriously, and Orrin and I worked on that because it was about organized crime. 

Ms. STROSSEN. And we are not saying repeal it. We are saying 

amend it slightly. 

Senator BIDEN. That is what I am trying to get at. 

Ms. STROSSEN. And the two amendments would be, number one, 

that there be a requirement that law enforcement ascertain that 

the target of the wiretap is actually using the communications device that is going to be wiretapped. 

Senator BIDEN. I don’t think that is an unreasonable suggestion. 

Ms. STROSSEN. Exactly. 

Senator BIDEN. I don’t think that is an unreasonable suggestion, 

but again I am trying to understand. The worst of all things would 

be—and I will end in a second, Mr. Chairman—is that we go 

through all of this and assume for the sake of discussion we make 

the bulk of these, what I would call tweaks, refinements, changes, 

alterations—and I must tell you, Professor, I have been most impressed by your testimony. 

Ms. STROSSEN. Thank you. 

Senator BIDEN. And you support the Act, but you acknowledge 

what the real underlying debates here are. There are real civil liberties questions here. 

Ms. STROSSEN. But they are relatively apart from the national 

security concerns which have been raised by the Government. 

Senator BIDEN. Well, again, what I want to make sure of is if we 

go through this exercise and we amend it along the lines that are 

40

being discussed here, are we still going to have—and, Mr. Zogby, 

I have great respect for you, and I really mean this. I think that 

not only the Arab American community, but all Americans are indebted to you because of your prominence and your willingness to 

take on and speak up at a time other folks in your profession might 

view it as damaging to their interest to do so. So we owe you lot. 

But my guess is you are not for this Act, period, no matter how 

we change it, because it has a generic chilling effect. Is that right? 

Mr. ZOGBY. No, Senator, we have actually not said that at all. 

Senator BIDEN. Well, I am not arguing. I am just trying to figure 

it out. 

Mr. ZOGBY. Let me just be clear. We have not said that. We have 

been very careful not to say that. 

Senator BIDEN. Okay. 

Mr. ZOGBY. We have not supported those who have used language that has gone above and beyond where we feel the discourse 

ought to go. We support the SAFE Act and we feel very strongly 

that there is a legislative fix that is possible and we are looking 

for ways to accomplish that. 

Senator BIDEN. Okay. 

Mr. DEMPSEY. Senator, if I could? 

Senator BIDEN. Yes, please. 

Mr. DEMPSEY. Just speaking for the Center for Democracy and 

Technology, my organization, we do not, in principle, oppose the 

PATRIOT Act. We don’t oppose FISA, in principle. We don’t oppose 

Title III, we don’t oppose roving taps. As I said in my opening remarks, I believe that the extension of roving tap authority to intelligence investigations made perfect sense. The addition of other 

Title III predicates in the PATRIOT Act made perfect sense. It was 

to some extent overdue. 

We have proposed a series of very specific amendments. I think 

I can categorically say that there is not in the PATRIOT Act a single grant of power to the Government and not a single provision 

in the PATRIOT Act that deals with a Government power where 

we oppose that Government power. 

Senator BIDEN. Good. 

Mr. DEMPSEY. All we are talking about here are the standards. 

And as you said, in the emotion and time pressure of the moment, 

some mistakes were made. We can have a legitimate debate about 

what should be the standards for delayed notice. 

Senator BIDEN. Good. Again, I am not in any way being critical 

of any of you. I am just trying to make sure I understand the place 

from which we can all agree to start. Some of you will say we start 

there and stop there, and others suggest we go beyond. 

That is a very helpful statement for you to make that none of the 

powers granted in here to the Government are, per se, from your 

perspective, Mr. Dempsey, bad, if you will. I have a lot of questions. I will cease and desist now, except to say to you I find this 

very helpful. 

Mr. Chairman, this is a lousy thing to do to you, but I really 

think that we should consider, at a time when we are not in session and Mr. Ashcroft has no excuses and we don’t either, to have 

extensive hearings here maybe in December on this very issue. We 

41

have done that on every important thing before. We did that on the 

crime bill, we did that on a lot of other things. 

This is the time to maybe work through what I am most concerned about and what Mr. Zogby said, and that is working 

through left, right, center, the misconceptions, the hysteria, the political agendas. I am not talking about any one of you at the table, 

but just to get to the American people, through serious hearings 

and disclosure by the administration as to what they are doing and 

not doing, what the problems are. 

Ms. STROSSEN. Senator, I think that is so constructive and if it 

could be focused section by section, as opposed to just the PATRIOT Act. 

Senator BIDEN. I agree. Anyway, I thank you and I yield the 

floor. 

Chairman HATCH. Senator Feinstein. 

Senator BIDEN. Mr. Zogby wanted to say something. 

Mr. CHISHTI. Can I just add one comment to Senator Biden’s 

question? 

Chairman HATCH. Let’s take Mr. Chishti first and then Mr. 

Zogby. 

Mr. CHISHTI. I just want to say that I think it is appropriate that 

we should hold hearings not just on the FISA issue. 

Senator BIDEN. I mean on the Act. I didn’t mean just FISA, 

across the board. 

Mr. CHISHTI. But I think, more than the Act, as you said in your 

initial statement, most of the acts of the Government, especially in 

the immigration realm, have taken place outside the USA PATRIOT Act. 

Senator BIDEN. I agree. 

Mr. CHISHTI. So, therefore, it is important to have oversight 

hearings on those issues as well. 

Senator BIDEN. I agree, I agree. 

Mr. ZOGBY. And I think that is the point I was going to make, 

is that for clarity sake it is important to recognize the PATRIOT 

Act to become a symbol for all of those other concerns, all of those 

other fears. 

Senator BIDEN. Which is exactly what it has become. 

Mr. ZOGBY. And therefore to make, I think, the political discourse more meaningful and more temperate, it is important to sort 

of separate those out and be able to criticize what needs to be criticized and protect what needs to be protected. I think that that 

would help us a lot. 

Senator BIDEN. You have said it more succinctly and in a more 

articulate manner than I attempted to say it. That is the entire 

purpose, because we end up having speeches by friends of mine and 

political allies of mine that it is all under the rubric of the PATRIOT Act. If you walk out there and constituencies that support 

me—everything is under the rubric of the PATRIOT Act, and it is 

not because people are trying to—they are just not informed. We 

haven’t delineated the problems and separated them out, and then 

begun to address each one of them ad seriatim here, which I think 

we have to do. 

Anyway, I thank you. I apologize, Mr. Chairman, for going on. 

Chairman HATCH. That is fine. 

42

Senator Feinstein. 

Senator FEINSTEIN. Thank you, Mr. Chairman. 

Chairman HATCH. I have to be through here in a short time, so 

I hope we can stay within the ten minutes, and that is longer than 

I really can stay. 

Senator FEINSTEIN. I may be the only one that feels this way, but 

I still believe there is a great deal of confusion about the PATRIOT 

Act. I mentioned that at a previously hearing I had received over 

21,000 letters, e-mails, post cards, and the like about the Act and 

related issues. Since that hearing, the number has risen 2,000. And 

we still have calls against PATRIOT II, a draft bill that has never 

actually been introduced. We have also had calls supporting the 

SAFE Act, which my colleagues have introduced, and we have now 

about 1,300 against the PATRIOT Act, but they are all very nonspecific. 

To a great extent much of the criticism relates to the national 

security entry-exit registration system, known as special registration, which Professor Strossen mentioned. That comes through in 

the critics that I have heard from. 

And then I was listening to others and they were saying that the 

Department of Justice Office of Inspector General had found 34 

specific abuses of the PATRIOT Act, and you mentioned them as 

well, Dr. Strossen. So I wrote a letter to the IG, Mr. Fine, on November 12 asking for clarification of that and he sent a response 

back to me, and I think it is important that it be read in the 

record. It is a letter dated yesterday. 

‘‘In your letter, you asked whether any of the complaints investigated by the OIG pursuant to Section 1001 of the PATRIOT Act 

involve an abuse or violation of a specific provision of the PATRIOT 

Act. The 34 allegations to which we refer in our July 1903 semiannual report do not involve complaints alleging misconduct by Department of Justice employees related to their use of a provision 

of the PATRIOT Act. As we discussed in our report, we received 

several hundred complaints from individuals alleging that their 

civil rights or civil liberties have been infringed pursuant to the directives of Section 1001 of the PATRIOT Act. We reviewed those 

complaints,’’ et cetera. 

‘‘These allegations’’—and I think this is the key—‘‘range in seriousness from alleged beatings of immigration detainees to verbal 

abuse of inmates. They generally involve complaints of mistreatment against Middle Eastern or Muslim individuals by the Federal 

Bureau of Prisons, the Federal Bureau of Investigation, or the Immigration and Naturalization Service. We detailed the specific complaints in our semi-annual reports to Congress and used the label 

‘PATRIOT Act complaints’ because we received, investigated them, 

et cetera, under Section 1001 of the PATRIOT Act.’’ 

Every time I try to zero in on an abuse specific to the PATRIOT 

Act, it disappears before my very eyes. So I have come to the conclusion that most of the criticism that is out there is really not specifically related to the PATRIOT Act, but is related to a whole host 

of other things—special registration provisions, special searches 

that are done under other authorities, et cetera. 

Now, having said that, being a non-lawyer on this Committee, I 

spend a lot of time reading about terrorism and terrorists, and I 

43

go back to Ramzi Yousef and his encrypted computer which had details of a plot to destroy 11 airliners on it, to reports in the public 

press about there being the possibility of operatives in this country 

designed to carry out a second wave of attacks to 9/11. You recognize that you have to provide the wherewithal for domestic intelligence to function if you are going to get at the terrorist threat, 

and that is really what the PATRIOT Act is designed to do. 

I have heard enough reported in the public press to be concerned 

that there may well have been a second wave in play after September 11. And if there are people out there, the question, I guess, 

I would ask each of you is do you not want to get at them before 

they at us in a big way, and can we not do this through this Act. 

Senator Feingold and I were just talking about section 215 and 

perhaps giving the judge more flexibility to deny a FISA application under that section 215 instead of making it so kind of cut-anddried. But I want intelligence to respect the civil liberties of people 

residing in this country, but at the same time to have the ability 

to properly function and have enough clout to be able to get at 

what may be out there. 

Would you respond to that? Let me hear from Mr. Dinh because, 

Professor, you have been very articulate. 

Mr. DINH. Thank you very much, Senator Feinstein. I will limit 

my comment to public press reports, as you have, regarding the 

terrorist threat because I do not want to do anything untoward 

with respect to our classifications. 

There have been reports of multiple phases following September 

11, and I think that the fact that none of these phases have hit in 

the territory of the United States is a great tribute to the men and 

women of law enforcement, and in particular the men and women 

of State and local law enforcement who are our eyes and ears on 

the ground, and the men and women of intelligence who provide 

the basic information upon which law enforcement can take action. 

The key to that is, as you noted, both the intelligence and the 

action, actionable intelligence. We are no longer in a Cold War 

world whereby nation states watch each other and try to determine 

their bargaining positions at key rounds in order to look for deterrence purposes, but rather we are dealing with a world whereby a 

relatively small number of people with relatively little resources 

can inflict incredible catastrophic damage on nation states. 

And so the key is not simply to get information, to get intelligence for the sake of intelligence, but rather to transfer and take 

action based upon that intelligence, and, God help us, to interrupt 

terrorism before it happens before the terrorists act without the restraint of a nation state. 

I think that, in particular, Section 218 of the USA PATRIOT Act 

provides us with the critical tools in order to facilitate that process 

of collaboration and information-sharing. Much more needs to be 

done to change the culture to encourage such functional cooperation and collaboration, and perhaps the shift, which is a very significant shift in the nature of how intelligence does its business 

and how law enforcement does its business—the experience may 

suggest to us better ways in order to make this happen so that we 

get the full benefits of such coordination without any danger of reVerDate 0ct 09 2002 12:07 Jun 15, 2004 Jkt 094064 PO 00000 Frm 00047 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\94064.TXT SJUD4 PsN: CMORC
44

turning to the days of COINTELPRO. I think that this Committee’s 

work is very, very important in that regard. 

Mr. DEMPSEY. Senator, I think— 

Senator FEINSTEIN. Before you answer, may I ask that you place 

this letter of November 17, Mr. Chairman, in the record before I 

forget? 

Chairman HATCH. Sure, I will be happy to do that. 

Senator FEINSTEIN. Thank you. 

Yes, sir. 

Mr. DEMPSEY. Senator, there should be no doubt that there are 

people today planning terrorist attacks against innocent Americans. I don’t think any of us should doubt that there are people in 

this country today doing that, and those attacks may involve biochemical or nuclear materials. 

But before 9/11, our intelligence and law enforcement agencies 

were drowning in information. They knew two of the 9/11 hijackers 

had been spotted in Southeast Asia. They flew on those airplanes 

on September 11 under their own names, and yet the CIA had 

failed to get that information to the FBI and the INS in time. 

There was absolutely no legal barrier to sharing that information 

from the intelligence agencies to the law enforcement and immigration agencies. 

Senator FEINSTEIN. Which the PATRIOT Act enables now to be 

shared. 

Mr. DEMPSEY. Actually, Senator, no, there was no barrier to the 

sharing of intelligence information with law enforcement agencies, 

and the PATRIOT Act has no provision on the sharing of intelligence information collected abroad with the law enforcement 

agencies. The PATRIOT Act does allow law enforcement to share 

information collected under law enforcement authorities with intelligence agencies. That was probably a very appropriate and legitimate change, although I think it should have been subject to more 

appropriate safeguards. 

The PATRIOT Act also tried to address the question of coordination, but again there was no prohibition in FISA to prosecutors and 

intelligence officers coordinating with each other. That was really 

an invention of the FISA court and the Justice Department, which 

came up with that really in secret and the whole thing got totally 

perverted and did do, I think, harm to national security without actually serving civil liberties. 

Senator FEINSTEIN. I am sorry. What did harm to national security? 

Mr. DEMPSEY. The perverted concept of the wall, this notion that 

law enforcement officers and intelligence officers within the FBI 

and the Justice Department couldn’t talk to each other, which was 

this rule that had been developed in secret by the FISA court and 

by the Justice Department. Attorney General Reno had actually 

tried to overcome that. 

Senator FEINSTEIN. You will admit the PATRIOT Act lowered the 

wall. Whether you think it was there or not, it was there. 

Mr. DEMPSEY. Well, I think that the wall that was there had 

been a perverted wall and it could have been lowered without some 

of the other changes in the PATRIOT Act. I also think that to get 

to these terrorists who undoubtedly are planning these acts, we 

45

need these guidelines and these standards and this sense of direction and control and oversight. 

The last thing we need is a situation in which the Government 

draws in yet more information that it can’t process; information 

that is unfocused and not guided by some reasonable suspicion and 

compounds the problem that existed before. What we are talking 

about today is what are the appropriate standards that can guide 

this vitally crucial activity; what are the checks and balances and 

guidelines that will help these agents do the job they need to do 

without tying their hands. 

Chairman HATCH. If I can interrupt, I am very interested in your 

comments and interested in your suggestions on how we might improve the PATRIOT Act, but that is not my understanding, Mr. 

Cleary or Mr. Dinh. 

Mr. CLEARY. If I may, Mr. Chairman. 

Senator Feinstein, you are, I believe, one hundred-percent correct 

based on the practical application of what the standard was at the 

time. The standard at the time for FISA action was a primary purpose, a primary purpose being foreign intelligence. The practical 

consequence of that was that the Government was concerned, the 

law enforcement community was concerned that if the information 

the intelligence community was gathered was shared with the law 

enforcement community, it would appear to the FISA court that 

the investigative technique used in the intelligence community no 

longer had as its primary purpose—the standard they have to meet 

no longer had as its primary purpose intelligence-gathering, and 

therefore the intelligence community would run the risk of no 

longer being able to continue with that investigation. 

Senator FEINSTEIN. Thank you, because it was my amendment 

that changed it to ‘‘significant purpose.’’ So I remember it well. 

Mr. CLEARY. Thank you, Senator. 

Senator FEINSTEIN. Thank you. 

Chairman HATCH. We want to thank you. 

Mr. DINH. Can I make one note here, Mr. Chairman? 

Chairman HATCH. Yes. 

Mr. DINH. There has been a lot of focus—and I think Jim is right 

that it is not about the information that is collected, better use of 

that information that is collected, but much more importantly, it is 

also the information that got away. 

What we saw with a lot of pre–USA PATRIOT Act operations is 

that it is not that the Government’s net is not big enough, but 

there were holes in it; that is, you could evade by simply throwing 

away your cell phone, or in one case anecdotally an alleged terrorist cell has formed its own Internet service provider in order to 

evade the formal processes of CALEA and other law enforcement 

authorities. 

It is those kinds of evasive maneuvers that are being exploited 

that really hampers the ability of law enforcement and intelligence 

to create a complete mosaic of intelligence information. It is not information that we have, but it is information that we don’t have. 

Ms. STROSSEN. Once again, Senator Feinstein, that provision is 

not one that has been objected to by the ACLU or any other organization, the one that allows you to tap multiple cell phones of a particular suspect. 

46

Senator FEINSTEIN. I think we know that, but I also think in the 

eyes of the public it is all confused. That is just one of the things 

that is happening out there. Everybody just hits at the PATRIOT 

Act and people confuse it with a whole host of other laws. 

Chairman HATCH. Senator Feingold, we will finish with you. 

Senator FEINGOLD. Thank you, Mr. Chairman. As everybody has 

been pointing out, a lot of the recent discussion about terrorism 

and civil liberties has focused on the PATRIOT Act. The law does 

raise many concerns, and I do hope that Congress takes action on 

some very common-sense proposals to remedy some of the most 

troubling provisions. 

As I have previously and repeatedly said, there is much in the 

PATRIOT Act that I support. In fact, I said right when I voted 

against it that I probably support, if you count them all up, 90 percent of the provisions. But there also are provisions that I and a 

growing number of Americans have serious and valid concerns 

about. 

The American people are increasingly concerned about the potential for abuse in some of the new powers granted by the PATRIOT 

Act. These concerns are not baseless and they are not based on 

myths. And I want to take issue with Senator Kyl’s presentation, 

where he read quotes from the ACLU and others saying that somehow it is wrong to have a website that says stop the PATRIOT Act. 

That is perfectly normal discourse in our country. 

I would note that those websites probably didn’t exist until well 

after the Attorney General of this country came before this Committee and said the following inflammatory thing: ‘‘To those who 

scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our National unity and diminish our resolve. They give ammunition to 

America’s enemies and pause to America’s friends.’’ 

Mr. Chairman, this is the real history of what has happened with 

the PATRIOT Act. If people have a misconception about what is in 

the USA PATRIOT Act, that is our fault. It is not the fault of the 

American people. They are not expected to know every line and 

every word in a 200- or 300-page document. 

The fact is this body scared the American people by rushing 

through a document before it was ready. At the time, as you know, 

I tried to raise four or five specific concerns, and I honestly thought 

that there was a vote that I could vote for this piece of legislation. 

Instead, the process collapsed. This entire significant bill in the 

history of our country’s civil liberties had only three or four hours 

of debate, and even my leader instructed my fellow Democrats to, 

quote, ‘‘not vote on the merits of the amendments’’ because we had 

to rush so fast. 

That is how we got here. It is not because the American people 

are somehow confused or being irrational. It is the hysterical language and approaches that have been used by those in advocacy of 

this bill and their unwillingness to look at specific provisions and 

work as we all want to do to change them that is the real problem. 

So I appreciate, frankly, Mr. Chairman, the tone of much of the 

conversation today. Senator Biden talked about trying to identify 

the specific provisions that need to be changed. I hope nobody actually answered his question saying if we do this and this, we are all 

47

done. This is a very important piece of legislation. We don’t know 

how many of these provisions will work out, but we are in a position now to know that certain provisions need scrutiny and need 

change. 

In response to Senator Feinstein, who is very earnestly trying to 

address her feeling that perhaps some people don’t know exactly 

what is in the bill, but also showing a willingness to change some 

of the provisions, I would urge her and others to look at the fact 

that there are provisions of the bill that we do know are being 

used. The expanded sneak-and-peek powers apparently have been 

used at least in 47 cases. 

The administration says that Section 215 has not been used to 

access library and other business records, which, of course, raises 

the very critical point that Mr. Dempsey has pointed out that why 

in heck do we need it if it hasn’t been used during this critical 

time. 

But let me add another point. Under the national security letters 

provision, Section 505, it may well be that the libraries are being 

contacted for the very same information. So when the administration says we have never used it, they are not necessarily telling the 

whole story. A survey in Chicago indicated that a number of libraries believe that they had been contacted in this regard. So perhaps 

it was under another provision of the Act, but that doesn’t mean 

it isn’t being used. 

The roving wiretaps provisions are almost certainly being used, 

although we can’t be absolutely sure because of the secrecy of the 

FISA proceedings. And I believe a provision that doesn’t get enough 

attention, Section 217, the computer trespass provisions, needs serious scrutiny because, as I understand it, they allow the definition 

of a trespasser to be somebody who not only hasn’t done anything 

with regard to terrorism, but hasn’t even committed a crime. All 

they have to do is buy a Christmas present on their employer’s 

computer and they are trespassers and therefore may be subject to 

this provision. So anyone who believes that there aren’t specific 

provisions of the USA PATRIOT Act that are being used and may 

be abused is wrong, and I don’t want this hearing to go forward 

without that conclusion. 

But my feeling that is coming out of this is that the members of 

this Committee on both sides of the aisle actually do genuinely 

want to do what should have been done in the first place, which 

is to find those provisions that we know may be a problem now and 

fix them, especially provisions that the administration itself isn’t 

even using. It is a great time to fix it, before anyone has been 

harmed by it. But even in cases where they may be harm, this is 

the opportunity to pass some legislation. 

So I do appreciate this hearing, Mr. Chairman. I think it is important and I think we are moving in the right direction on this 

issue. 

Mr. Chishti, in response to the criticism of the round-up of over 

750 men, almost all of whom were either Arab or Muslim and who 

were detained on immigration violations in connection with the 

September 11 investigation, the administration has said that its 

conduct was justified because each of these individuals had broken 

the law and was simply enforcing the immigration laws. 

48

How do you respond to that? 

Mr. CHISHTI. I think that it is fair for them to say that they were 

enforcing the immigration laws. I think the point we are trying to 

make in the context of this hearing is that we should see what the 

aim and the goal of the post–9/11 immigration initiatives were. 

If the administration would come to announce that we are going 

to initiate a new campaign to deport people who have stayed beyond their authorized visas, there would not be a question. The 

point was that these actions of the Government and immigration 

enforcement were sold to counter terrorism, and these round-ups of 

people under various immigration measures did not respond to the 

terrorism threats we had. All they did was intimidate this group 

of people and the communities they come from without any measure of success on the terrorism front. That is the real criticism. We 

should be clear about what we were doing here. If we were doing 

this in the name of fighting terrorism, we were not accomplishing 

it by these acts. 

Senator FEINGOLD. I certainly agree with that. 

Mr. Dempsey, both the House and the Senate versions of the intelligence authorization bill currently in conference contain a provision that greatly expands the FBI’s authority to issue these socalled national security letters that I just mentioned, a form of secretive administrative subpoena used in foreign intelligence and 

terrorism investigations. 

Currently, the FBI may serve NSLs on traditional financial institutions; that is, banks. And under the new provision, the FBI could 

also serve NSLs on pawnbrokers, travel agencies, car dealers, boat 

salesmen, casinos, real estate closing agencies, and the U.S. Postal 

Service. 

Today, I joined my colleagues, Senators Durbin and Leahy—and 

I congratulate them for their leadership on this—in sending a letter to the Intelligence Committee asking that they refer this issue 

to the Judiciary Committee and defer action on it. 

What do you know about this provision and do you have any concerns about it? 

Mr. DEMPSEY. Well, we have serious concerns about this provision. It is in both the House-passed and Senate-passed intelligence 

authorization bills which are still pending in conference. 

The national security letter is an extraordinary device. This is 

literally a letter signed by an FBI agent and submitted to a credit 

company, a bank, or a telephone service provider to get certain 

transactional records. 

Now, in the past Congress has always been careful in expanding 

these. In each case, there was a careful justification made and they 

were narrowly focused. Unfortunately, in the PATRIOT Act the 

particularized suspicion standard was removed. In the past, where 

there was some reason to believe that a person might be a terrorist 

or might be a spy, the national security letter could be used to obtain that person’s records. 

That particularized suspicion standard was eliminated by the 

PATRIOT Act, and honestly I am not sure how they are now being 

interpreted. They could cover entire databases, including information about innocent persons, all on the basis of a claim by the FBI 

49

agent, with absolutely no judicial scrutiny, that the information is 

sought for a counter-terrorism investigation. 

Senator FEINGOLD. So it is identical to the concern that many of 

us have about the language in Section 215. 

Mr. DEMPSEY. Exactly. 

Senator FEINGOLD. Contrary to the myth that is being perpetrated that somehow there is judicial review, in fact, it is essentially a mandatory provision. All the administration has to say is 

that they seek this information and the judge has to give it. Isn’t 

that right? 

Mr. DEMPSEY. The judge is really a rubber stamp. The statute 

says he ‘‘shall’’ issue the order if the Government makes the certification. The judge cannot even look behind the certification to determine whether those facts are there. 

Senator FEINGOLD. That is exactly what I wanted to get to. 

Mr. DEMPSEY. In the national security letter, there is no judge 

at all. It is simply the FBI agent saying to himself ‘‘I want this.’’ 

And now in this provision that is in the intelligence authorization 

bill, a financial institution would be defined to include a car salesman, a travel agent, and a host of other businesses not traditionally regulated, not like banks, which are required to report information to the Government. 

The way the definition works, a financial record is any record of 

a financial institution. So the records that will be obtained are not 

necessarily about bank transactions, but you can go to the travel 

agency and the travel agency becomes a financial institution, and 

then all the records of the travel agency become financial records 

that can be obtained by this letter signed by an FBI agent. 

Senator FEINGOLD. Thank you for that specific answer. 

Mr. Chairman, my time is up, but this is exactly the kind of 

analysis that we have been seeking for a couple of years to get 

down to the specifics and fix the provisions that are potentially 

open to abuse. 

Thank you, Mr. Chairman. 

Chairman HATCH. Thank you, Senator. We appreciate that. I 

think it deserves to be pointed out that, yes, they can get the warrant from the judge. It is automatic, but they had better be right 

in their representations or the judge can take them apart afterwards. 

Mr. DEMPSEY. I think that goes back to Senator Biden’s point, 

which is to not repeal the— 

Chairman HATCH. Well, that is integrity on the part of the Government. That is the point. 

Mr. DEMPSEY. Well, right now, the judge under either 215— 

Chairman HATCH. He has to issue it, but if the Government has 

acted with a lack of integrity, that same judge can take the Government to task. 

Mr. DEMPSEY. But, Mr. Chairman— 

Chairman HATCH. It may be after the fact, but he can take them 

to task. 

Mr. DEMPSEY. But there is no reporting back to the judge. The 

judge will never know. There is no return. 

Chairman HATCH. Well, that is where the ACLU comes in. And 

don’t worry, they will come in. 

50

Ms. STROSSEN. We will. 

Mr. DEMPSEY. Well, Mr. Chairman, every recipient of a national 

security letter and of a 215 order is prohibited from telling anybody. 

Chairman HATCH. It isn’t just the ACLU. It is— 

Senator FEINGOLD. It is a secret process, isn’t it? 

Mr. DEMPSEY. We will never find out, Mr. Chairman. There is a 

permanent gag order. 

Chairman HATCH. Well, not necessarily. If they misrepresent to 

the court and that can be shown—in some cases, I suppose, in 

criminal law that can be shown—then they are going to suffer 

some tremendous problems. 

Mr. DEMPSEY. Only if it comes into court. 

Chairman HATCH. And I might add that Section 215 provides for 

Congressional oversight, as well. Every 6 months, we have to look 

at that, and we will. But be that as it may, I just wanted to make 

that one point. 

Senator Durbin. 

Senator DURBIN. Mr. Chairman, because I serve both on this 

Committee and the Intelligence Committee, I want to tell you we 

didn’t spend a minute, not a minute, discussing these national security letter changes as part of this intelligence authorization bill—

none. 

Senator Feinstein—I am sorry she is not here—said we have 

never seen PATRIOT Act II. Here it is; here is one provision. Here 

is PATRIOT Act II, not coming through this Committee with a 

hearing for an opportunity for this discussion to really be fullblown on both sides. Instead, we have given jurisdiction over an expansion of the PATRIOT Act to the Intelligence Committee, which 

has not spent one minute discussing its substance, not a minute. 

To suggest that if the Government goes too far in a secret investigation involving someone’s records at a travel agency or an insurance company or a real estate broker, that somehow the ACLU is 

going to find out about it—how, when? I really think this is a classic illustration of what can’t be done by direction is being done by 

indirection. The PATRIOT Act is being expanded, and it will be unless, I hope, Mr. Chairman, you assert jurisdiction and say to the 

Intel Committee, stop, this is our responsibility; it is not yours. 

Let me just say, as well, that I voted for the PATRIOT Act with 

some misgivings, but understanding that we were facing a national 

tragedy and a national challenge. And I heard the argument that 

we wanted to pass the PATRIOT Act because we wanted to break 

down the wall between law enforcement and intelligence which had 

stopped us from finding would-be terrorists before they struck. 

I thought it was a decent argument, but I have come to understand as I have looked at it that there is another side to the story. 

We need more intelligence in law enforcement, and that is an element that I have really come to understand more, serving on both 

of these committees. 

The argument from the Government has been we need more information and we are sorry if the privacy of individuals has to be 

compromised to secure it. I think that is what is behind sneak-andpeek, that is what is behind the roving wiretap, and that is what 

is behind the effort to come up with library records. 

51

The Government is saying we regret that in searching library 

records for terrorists, we are also going to look at Aunt Louise’s 

book club, but, you know, we have got to stop terrorism. And they 

are saying we are sorry that in tapping the phones of would-be suspects of terrorism, we are going to listen in to the conversations of 

innocent people. 

Doesn’t that raise an interesting constitutional question for us 

here as to whether or not we are prepared to say that in stopping 

terrorism, we will compromise the rights of innocent people? That 

is what this debate is all about. 

I might also say that it isn’t just a matter of gathering more information. In the time since September 11, it has been my experience that much of the information gathered by the Government is 

not used properly. Archaic computers at the FBI are finally, finally 

being replaced by Bob Mueller, and he deserves credit for that. 

The bureaucracy which stops immigration records from being 

shared with people in Homeland Security, and vice versa, finally is 

starting to change. Also, I think there is a very bad record when 

it comes to analyzing this information. They don’t share it, they 

don’t analyze it; it is not being used properly. There is also a ‘‘cover 

your fanny’’ timidity now about saying things between agencies. 

And all of that suggests that just enlarging the body of information 

gathered is not the be-all and end-all of this, and particularly at 

the expense of innocent people. 

I want to ask Mr. Zogby a question and preface it by saying that 

there has been no staff that has gone into this; this is my question 

alone and I am asking it of you directly. 

The Chicago Tribune started a series on Sunday, ‘‘Immigration 

Crackdown Shatters Muslims’ Lives.’’ They started following the 

Pakistanis who were deported back to Pakistan, and on the front 

page the finding just hit me between the eyes. ‘‘Since September 

11, 2001, 83,310 foreign visitors from 24 predominantly Muslim nations and North Korea registered with the government after U.S. 

Attorney General John Ashcroft required them to do so. 13,740 of 

those were ordered into deportation. Zero were publicly charged 

with terrorism, although officials say there are a few terrorism connections that come out of this.’’ 

I guess my point, Mr. Zogby and Mr. Chishti, and others as well, 

is this: How can we engage Arab Americans, the Muslim population, good, patriotic people who want to stop terrorism, if we are 

also embarking on this kind of effort that sweeps up so many people clearly who have been profiled by this Government that deports 

so many people and has so little to show for it? 

I think bringing intelligence and law enforcement together would 

argue the opposite should have been done. We could have reached 

out more constructively, come up with more positive information, 

made America safer, with a less heavy-handed approach. 

Mr. Zogby, you made reference to this in your statement, if you 

would like to comment on that. 

Mr. ZOGBY. I would. Thank you, Senator. As important as this 

discussion is, and as both Senators Feinstein and Feingold and 

Senator Biden have made clear, a detailed discussion of the PATRIOT Act to pull apart the pieces that work and don’t work, are 

needed, not needed, dangerous, not dangerous, et cetera—we need 

52

to look at all the other practices that have been initiated by the Department of Justice that have created fear and panic, and that in 

many instances have then bounced back on the PATRIOT Act and 

the symbol for all these things. 

One of them, of course, is the special registration program, which 

from the very beginning was poorly conceived and I believe dangerous. When we first got word of it, we wanted, of course, to encourage our people to comply and to register. We were told that it 

would cover all countries, not just Arab and Muslim countries; that 

it would be for everybody. 

Senator DURBIN. That is right. 

Mr. ZOGBY. We then said to the Department of Justice, what are 

you doing—we called INS and said what are you doing to make 

this work? They came back to us and said, well, we have sent out 

notices to all of your organizations. And I said, well, wait; number 

one, the people that you are registering don’t belong to our organizations. They are visitors. They don’t log onto the Arab American 

website to become members because they are only going to be here 

in the country for a short period of time. And they said, well, we 

have gone out to our offices. 

So we on our own called INS offices around the country to see 

what had been done to date. We found half of the offices that we 

called had done nothing. Some of them were not sure what they 

had to do. The Los Angeles office was interesting. They said we are 

all set; we are ready to go. We are going to be able to process these 

people. We are going to be able to get a hundred through in a day 

and we are all equipped to get the job done. Getting the job done 

differed from office to office because instructions weren’t clear. 

INS offices are underfunded, understaffed, and they were illequipped to carry out this program, so that in Los Angeles, 800 

people showed up in 1 day; 700 got detained because they didn’t 

know what to do with them. The fear that that created that spread 

across the country created panic. 

I have a weekly television show, a live call-in program, and we 

were getting calls from people saying I can’t go; I am not going to 

register. I am afraid. I can’t be detained. I have a job, I have family; I have this, I have that. We said you have to go and do it. 

Of the 83,000 who registered, I believe maybe an equal amount 

didn’t go and register because they were so afraid after the L.A. 

Iranian situation, number one. Number two, what is tragic is that 

the people who complied, who obeyed the law and registered—of 

them, we are now deporting 13,000. The shock that that has sent 

throughout this community, because most of these people have ties 

of one sort or another, and has sent overseas has been very dangerous and damaging to our country. 

I think, therefore, that we need to take a very close look at this 

program and look at how it has not only not worked, but probably 

was designed not to work from the get-go. 

Senator DURBIN. Mr. Chishti, before you respond I would like to 

have Professor Dinh’s comment because I want to hear both sides 

of this story. But do you sense in my remarks that I have suggested that it isn’t just about strengthening the hand of law enforcement, but it is also strengthening the intelligence-gathering, 

53

and at times they are at cross-purposes? Clearly, this registration 

is one effort. 

I might also add that although the PATRIOT Act has become a 

shorthand for all of the fear of Government excess and many times 

a misnomer, it does reflect the feeling among many Americans that 

our liberties are being compromised in the name of security. 

Now that you have been in the administration and back out 

again into civilian life, can you understand this anxiety felt by the 

American people, and also sense that perhaps we are too heavy on 

the law enforcement side and should use intelligence more to protect America? 

Ms. STROSSEN. Chairman Hatch and Senator Durbin, with apologies, I have a plane to catch, so thank you very much for your important work and for including me. 

Senator DURBIN. Thank you. 

Chairman HATCH. Well, we are very happy to have you here. 

Mr. DINH. Senator Durbin, on your very important question, I do 

agree with you that the USA PATRIOT Act has been a brand, and 

a brand that has been severely diluted, and the dilution results 

from a general anxiety that is out there. Whether or not that anxiety is properly placed or not is the conversation that this Committee is having, and ultimate resolution on specifics with respect 

to constitutional rights will be ultimately resolved by the courts, I 

hope with help from this Committee and Congress in general. 

I do agree with you profoundly that the work of law enforcement 

and intelligence needs to be done better, and not only that they 

should work together, but each should be able to deliver the mail 

and make the trains run on time in their own respective organizations better, including the coordination between the two institutions. 

I do want to make a little note regarding the immigration enforcement. As you know, this is an issue that we have worked on 

before 9/11 to bring what I call sanity to the immigration policy so 

that we do not have a disconnect whereby the immigration laws 

are passed without proper resources to be enforced and therefore 

routinely ignored, to return some semblance of an immigration policy to this country. 

In that respect, I do think you are proper, and Mr. Zogby certainly is justified, to focus on the 80,000 number and the 13,000 

deportations. But to put it in context, every year the immigration 

authorities initiate proceedings against approximately one million 

persons who are illegally or unlawfully in this country. These numbers should be put in context so that there is not an untoward message that only these persons are being profiled, only these persons 

are being enforced against. But it is one part of immigration policy 

enforcement, and also national security protection. 

Senator DURBIN. But this was a proactive effort by the Government. They decided that people primarily from Arab and Muslim 

nations would be called in to register. It is tantamount to a situation where an FBI agent called me—he is in a Midwestern city—

and said I can’t really go to a group of Arab Americans at a community center and say I want to talk to you about any concerns 

we should have in this community. But before we talk, what is 

your immigration status? Is it possible that you are out of status 

54

and maybe you should be deported? How far does that conversation 

go? 

Mr. DINH. That does not go very far, and I very much agree with 

you on that very important technical point. One note I would make, 

however—and I do not know whether it is true or not, but one of 

the most welcome pieces of news I read in the newspaper within 

the last several months is that the Department of Homeland Security, the Bureau of Immigration and Customs Enforcement, is now 

ready to fully implement the charge of Congress since 1996 that 

there be a comprehensive entry-exit registration system. 

That has been a charge from Congress since 1996. That deadline, 

of course, was missed in 2001 and then extended. I am very glad 

that that comprehensive system has now been implemented, or at 

least is in the beginning stages of implementation, so that the complaint of Mr. Zogby and the justifiable perception that there is selective enforcement is no longer the reality that is out there. 

Senator DURBIN. Mr. Chairman, you have been very patient. I 

thank the panel. I wish I could go longer, but I know that you 

don’t. Thank you. 

[Laughter.] 

Chairman HATCH. Well, you all have gone longer. Let me just 

say this is important and it is important to you. 

I think it is important to point out that there is no bill that is 

this large that you can’t refine or make better. This panel has 

helped us to a degree with regard to that, but still I think Senator 

Feinstein is right. An awful lot of criticism of what is going on in 

the administration is not of the PATRIOT Act, because it has nothing to do with the PATRIOT Act. A lot of it has to do with the immigration laws and the enforcement of those laws in those society. 

Frankly, that doesn’t negate the fact that we have to be fair and 

that we have to do what is right, not just to Arab Americans, but 

to all Americans, and not just to non–Arab Americans, but all non–

American people who are legally in this country. Those who are 

here illegally we need to treat with consideration as well, although 

we should enforce the laws. 

Now, what I have been interested in is that almost all the criticism of the PATRIOT Act has been, I think, very much misplaced 

if you listen to the experts in the field like Mr. Cleary who have 

had to actually implement it, and had to implement the laws before 

the PATRIOT Act came long, and will to a person, I believe, say 

that they are much better equipped today to fight against terrorism 

than they were before. Now, that doesn’t mean that we can’t look 

for ways of improving this law, and that is one reason for this 

hearing. 

I think in the regard, Mr. Dempsey, you have been very helpful 

to the Committee. We would enjoy receiving further information on 

a section-by-section basis on what you think could improve it. You 

haven’t come here and said get rid of it, throw it out, it is a lousy 

law, et cetera, et cetera. You have come here and tried to make 

some constructive suggestions, not all of which I agree with, by the 

way, and neither did Senator Biden. I can’t speak for him, but we 

have worked very closely on these criminal law issues. 

This is a very important Act. Without it, I don’t think we could 

curtail terrorism like we are, and I think the record of the Justice 

55

Department, the FBI, and other law enforcement agencies in this 

country has proven that thus far. 

Now, if the Act goes too far, then we want to correct that. On 

the other hand, this business of sneak-and-peek—my gosh, criminal law enforcement has used that throughout the years. To make 

that sound like that is some big, brand new thing, it isn’t at all. 

Under the PATRIOT Act, they are subject to reasonable rules. 

You know, I hear on the one hand from Ms. Strossen that she 

is not really against roving wiretaps. Yet, on the other hand, I 

heard her say she is basically against some aspects of it. Well, if 

she can make the case, we are going to listen. But I in many respects prefer to listen to Mr. Cleary, who is in private practice 

today but who was on the front line. 

Now, Professor Dinh worked with us day in and day out, 18-hour 

days. I remember it was right here in this room where the PATRIOT Act was born. Senator Leahy and I had a lot to do with it; 

as a matter of fact, had almost everything to do with it. The fact 

of the matter is that without Professor Dinh, we wouldn’t have 

done as good a job as we did. 

Now, there is no Act that is 300 pages or whatever it is that can’t 

be improved. So we are interested in your comments, and interested in having any suggested improvements and we will certainly 

consider them. Mr. Zogby, that goes for you, and it goes for you, 

Mr. Chishti, because this is important. 

I want to thank all the witnesses for testifying today. This has 

been an important hearing. Security and freedom are the very 

foundations of our country. I don’t know anybody on this panel, in 

the Judiciary Committee, who is not interested in protecting civil 

liberties and freedoms. Our country is a beacon of freedom throughout the world. It is a country where people come from all over the 

world and share the American dream. 

In preserving our place in the world, however, we have to be 

careful to act responsibly to identify, stop and disable terrorists 

around the world, but particularly in our country, and especially 

those who enter our country who want to perpetrate attacks on innocent Americans. Anybody who thinks this is just talk hasn’t lived 

in the last few years. 

From today’s hearing, it is apparent to me that much of the criticism surrounding the Government’s anti-terrorism efforts centers 

on laws and policies that have little or nothing to do with the PATRIOT Act. That doesn’t mean that we can’t look for ways of improving it. 

In future hearings, this Committee will examine further some of 

these important civil liberties issues, such as the designation of 

enemy combatants and the detention of the Guantanamo Bay prisoners. Those are matters that bother all of us. 

On the other hand, wouldn’t it be awful if we overemphasize civil 

liberties to the degree that we also have another major, major terrorist incident in our country because we didn’t do the things that 

were protective of American citizens and others? 

George Washington once said, ‘‘There is nothing so likely to 

produce peace as to be well prepared to meet the enemy.’’ So we 

have to maintain our vigilance and our commitment to winning the 

56

war against terrorism, but do so in a manner that ensures the civil 

liberties and freedoms of all our people within our borders. 

Finally, I would like to commend Dr. Zogby for the work of his 

son, Joe, Senator Durbin’s head staffer on immigration and other 

matters. We appreciate his work for the Committee. I think you 

should be a proud father, and I am sure you are. I can see by the 

look on your face that you are, and I would be disappointed if you 

weren’t. 

Mr. ZOGBY. I thank you for your sign of good taste. 

Chairman HATCH. Thank you very much. 

Well, we have enjoyed having you all here today, and we will 

continue to research this matter, look at it further, and hopefully 

make the right decisions down the line. But I hope people realize 

this PATRIOT Act has played a significant role in protection of this 

land and we should never deemphasize that. 

With that, we will recess until further notice. 

[Whereupon, at 1:37 p.m., the Committee was adjourned.] 

[Additional material is being retained in the Committee files.] 

[Questions and answers and submissions for the record follow.]

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