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66–314 PDF 2011

USA PATRIOT ACT: DISPELLING THE MYTHS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

MAY 11, 2011 

Serial No. 112–32 

Printed for the use of the Committee on the Judiciary 

( 

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

(II) 

COMMITTEE ON THE JUDICIARY 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

[Vacant] 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

[Vacant] 

SEAN MCLAUGHLIN, Majority Chief of Staff and General Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

LOUIE GOHMERT, Texas, Vice-Chairman 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

J. RANDY FORBES, Virginia 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

SHEILA JACKSON LEE, Texas 

MIKE QUIGLEY, Illinois 

[Vacant] 

CAROLINE LYNCH, Chief Counsel 

BOBBY VASSAR, Minority Counsel 

(III) 

C O N T E N T S 

MAY 11, 2011 

Page 

OPENING STATEMENTS 

The Honorable F. James Sensenbrenner, Jr., a Representative in Congress 

from the State of Wisconsin, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security .......................................................................... 1 

The Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from 

the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security .......................................................................... 3 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 3 

WITNESSES 

J. Patrick Rowan, Partner, McGuire Woods LLP 

Oral Testimony ..................................................................................................... 11 

Prepared Statement ............................................................................................. 14 

The Honorable Bob Barr, a former Representative in Congress from the 

State of Georgia 

Oral Testimony ..................................................................................................... 21 

Prepared Statement ............................................................................................. 23 

Bruce Fein, Campaign for Liberty 

Oral Testimony ..................................................................................................... 68 

Prepared Statement ............................................................................................. 71 

Ed Mullins, President, Sergeants Benevolent Association of New York 

Oral Testimony ..................................................................................................... 83 

Prepared Statement ............................................................................................. 86 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 7 

Article from The New York Times submitted by the Honorable John Conyers, 

Jr., a Representative in Congress from the State of Michigan, and Ranking 

Member, Committee on the Judiciary ................................................................ 98 

Article from The Washington Post submitted by the Honorable John Conyers, 

Jr., a Representative in Congress from the State of Michigan, and Ranking 

Member, Committee on the Judiciary ................................................................ 100 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Sheila Jackson Lee, a Representative 

in Congress from the State of Texas, and Member, Subcommittee on Crime, 

Terrorism, and Homeland Security .................................................................... 117 

Article written by Julian Sanchez, Research Fellow, the Cato Institute ............ 126 

Letter from John Quinn, President, the Association of State Criminal Investigative Agencies (ASCIA), Director of Criminal Investigation, State of 

Iowa ....................................................................................................................... 158

Page

IV 

Letter from Jon Adler, National President, Federal Law Enforcement Officers 

Association ............................................................................................................ 160 

Letter from Ed Mullins, President, Sergeants Benevolent Association of New 

York City ............................................................................................................... 163 

Letter from Lester A. Davis, President, Society of Former Special Agents 

of the Federal Bureau of Investigation, Inc. ...................................................... 166 

Letter from Konrad Motyka, President, Federal Bureau of Investigation 

Agents Association ............................................................................................... 168 

Letter from Debra Burlingame, Co-Founder, and Timothy Killeen, Executive 

Director, Keep America Safe ............................................................................... 171 

Letter from Chuck Canterbury, National President, National Fraternal Order 

of Police ................................................................................................................. 172 

Letter from Doug Gillespie, Sheriff, and President, Major County Sheriffs’ 

Association (MCSA) ............................................................................................. 173 

Letter from James Reams, President, National District Attorneys Association 175 

Letter from Steven H. Cook, President, National Association of Assistant 

United States Attorneys ...................................................................................... 176 

(1) 

USA PATRIOT ACT: DISPELLING THE MYTHS 

WEDNESDAY, MAY 11, 2011 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON CRIME, TERRORISM,

AND HOMELAND SECURITY, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 10:05 a.m., in room 

2141, Rayburn Office Building, the Honorable F. James Sensenbrenner, Jr. (Chairman of the Subcommittee) presiding. 

Present: Representatives Sensenbrenner, Gohmert, Goodlatte, 

Lungren, Chaffetz, Marino, Gowdy, Adams, Quayle, Conyers, Scott, 

Johnson, Chu, Jackson Lee, and Quigley 

Staff present: (Majority) Caroline Lynch, Subcommittee Chief 

Counsel; Lindsay Hamilton, Clerk; (Minority) Bobby Vassar, Subcommittee Chief Counsel; Sam Sokol, Counsel; Joe 

Graupensberger, Counsel; and Veronica Eligan, Professional Staff 

Member. 

Mr. SENSENBRENNER. The Subcommittee will come to order, and 

the Chair recognizes himself for 5 minutes. 

Today’s hearing is the third the Subcommittee has held in the 

last 2 months on the USA PATRIOT Act. The first two hearings 

examined what the expiring provisions and the permanent provisions of the Act authorized the government to do and why they are 

critical to our national security. 

Today’s hearing will examine what the government is not authorized to do under these provisions, dispelling the myths and misinformation that has swirled around this law for 10 years. 

Let’s begin with the ‘‘Lone-Wolf’’ provision. First proposed by 

Senator Schumer and Kyle in 2002, the provision was added to the 

FISA definition of agent of a foreign power in the Intelligence Reform and Terrorism Prevention Act of 2004. 

Let’s be clear. ‘‘Lone-Wolf’’ is simply a definition intended to close 

a gap in our intelligent laws that allows rogue terrorists to slip 

through the cracks. It is not a free-standing provision. It does not 

create a set of surveillance tools different from FISA. It does not 

allow the government to engage in warrantless surveillance or 

gather any intelligence without the approval of a FISA court. Only 

those tools currently laid out in FISA—business records, roving 

wire taps, and the like—can be used to target a ‘‘Lone-Wolf’’. And 

the ‘‘Lone-Wolf’’ definition can only be applied to non-U.S. persons, 

meaning it cannot be applied to citizens or permanent resident 

aliens. 

2 

Similar to the ‘‘Lone-Wolf’’ provision, the roving wire tape authority is not a free-standing provision. It does not authorize 

warrantless surveillance, nor can roving authority be used to target 

an entire neighborhood or city block of people. Since 1978, FISA 

has authorized court-approved surveillance for intelligence gathering purposes. 

But gone are the days of landlines and rotary phones. Today’s 

terrorists and spies use disposable cell phones and free e-mail accounts to hide their tracks and to thwart detection. So, in 2001, 

Congress amended FISA to allow the FISA court to approve roving 

authority in certain circumstances similar to criminal roving authority that has been in place since 1986. 

In order to use a roving wiretap, intelligence agents must first 

establish, and a FISA court must approve, all of the criteria for a 

traditional wiretap. These include probable cause that the target of 

the surveillance is a foreign power or an agent of a foreign power, 

and probable cause that the devices being used are about to be 

used by a foreign power or an agent of foreign power. Then the 

agents must make an additional showing, which the FISA court 

must also approve, that the actions of the target may have the effect of thwarting their identification. With this authority, agents 

can monitor modern day terrorists and spies. Without it, agents 

would have to obtain a new surveillance order from the FISA court 

every time a target switches cell phones or e-mail accounts and 

risk losing track of him. 

Despite claims to the contrary, roving authority does not create 

a John Doe warrant. We know that drug dealers and gang members often use nicknames or aliases. It should come as no surprise 

that terrorists and spies do as well. It should not surprise anyone 

that it may be difficult or impossible to provide the true identity 

of those who engage in clandestine underground activities in circumstances in which the identity of a target is unknown and the 

government may provide a description of the specific target. But it 

must provide it description specific enough to establish probable 

cause that the target of the surveillance is a foreign power or an 

agent of a foreign power. 

That leaves us with the business records provision. To begin 

with, business records orders are not—and I repeat—are not national security letters. PATRIOT Act critics often join the two together in an effort to transfer NSL concerns to business records. 

National security records are administrative subpoenas; business 

records are FISA court orders. These orders cannot be used to 

search a person’s home or obtain their personal records. They can 

only be used to obtain third party records, such as hotel or car 

rental records. 

Perhaps the biggest myth that we just dispel here today is with 

the death of Osama bin Laden, we no longer need the PATRIOT 

Act. Nothing could be further from the truth. Just last week, AlQaeda released a statement saying it will continue to plan and plot 

‘‘without any fatigue, boredom, despair, surrender, or indifference.’’ 

It is clear that Al-Qaeda has not backed down, and neither should 

we as the United States of America. That’s why last week I introduced legislation to permanently reauthorize the ‘‘Lone-Wolf’’ defiVerDate Aug 31 2005 15:04 Jun 28, 2011 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\051111\66314.000 HJUD1 PsN: DOUGA
3 

nition and extend for 6 years the sunsets for roving and business 

records authority. 

It is now my pleasure to recognize for his opening statement the 

Ranking Member of the Subcommittee, the distinguished gentleman from Virginia, Bobby Scott? 

Mr. SCOTT. Thank you, Mr. Chairman. 

Today’s Subcommittee meets again to discuss the provisions of 

the USA PATRIOT Act, and I believe it is appropriate that we 

thoroughly examine these controversial provisions. And I thank 

you for holding a series of hearings that you have been holding so 

that we can fully understand exactly what these provisions are. 

Each time we allow law enforcement greater power to access private communications or look at records regarding private activities, 

we give up something important. Piece by piece we may not notice 

it, but we may wake up one day and ask, where did our freedoms 

go? 

There is no doubt that we entrust our law enforcement officers 

at all levels with awesome responsibility to protect us from harm. 

We respect them and thank them for that, and we work on a bipartisan basis to give them the resources and authorities they need. 

However in protecting us, we must also protect our freedoms and 

civil liberties, the basic principles of our Bill of Rights underlying 

what it means to live in a free country, and to define that relationship between citizens and government. 

And when we talk about government, it is not government in the 

abstract. In Northern Virginia, we are talking about people who 

may be our neighborhoods, lots of other people who may be involved in these activities. So, when we say government, we may be 

talking about dozens of people, or hundreds of people, who may 

have access to our private conversations. 

For years we’ve discussed roving wire taps, the ‘‘Lone-Wolf’’ provision, and the relaxed standards for access to business records. 

These provisions have expanded the government’s power to listen 

to personal conversations, read confidential records, and track private movements. We may establish procedures on how these authorities may be executed and require a secret court to authorize 

some of these actions, but those subject to the surveillance or those 

whose records have been examined may never get a chance to know 

just how much the government, their neighbors, and friends, or 

other people who may be government employees have intruded into 

their lives. It is difficult for us to conduct meaningful oversight 

over provisions which are implemented in such secret conditions. 

So, I welcome our witnesses, including one of our former colleagues, a Member of the Subcommittee, the gentleman from Georgia, Mr. Barr, and the other witnesses. I look forward to their testimony. 

Mr. SENSENBRENNER. I thank the gentleman from Virginia. 

I now recognize the junior Chairman emeritus of the Committee, 

the distinguished gentleman from Michigan, Mr. Conyers? 

Mr. CONYERS. Thank you, Chairman Sensenbrenner. It is a 

pleasure to be here today and to join Bobby Scott in welcoming Bob 

Barr, our former colleague from Georgia, for many years here to 

the Committee room. He also served on the Judiciary Committee, 

and we know we are all pleased to see him again. 

4 

Now, instead of this hearing, which is another oversight hearing, 

I begin by making the point that we have not had a legislative bill 

on the PATRIOT Act before the Committee for hearing. We have 

had a number of oversight hearings, and what we want to do is try 

to get ready with 16 days left to determine what we are going to 

do on this bill. 

Now, we have been having a hearing on ‘‘The USA PATRIOT 

Act: Dispelling the Myths.’’ Well, that is great, but I think that it 

shortchanges the real problems with a bill that we have so little 

time to work on. We ought to be, in my judgment, be working on 

what compromises we have to make to the PATRIOT Act to get it 

through the Committee and the House and the conference that is 

sure to follow. And it is in that spirit that I make this opening 

statement. 

We have got some work to do here. Now, there are a lot of people 

that are troubled about these expiring provisions. So, to introduce 

a bill that makes some of them permanent is exactly the wrong 

way to go. Now, this is the Committee that unanimously passed 

the first PATRIOT Act because we worked it out on both sides. And 

I do not think we are following that procedure again the way that 

we are going now. 

And so, I have introduced a compromise measure—H.R. 18-5— 

that is intended to cover this. And that compromise is a bill to extend the sunset of certain provisions of the USA PATRIOT Act, and 

that is what I would like all of my colleagues, especially the Chairman of our Judiciary Committee and the Members of this Subcommittee, to examine critically so that we can work out some position that we can reach some accord on. 

So, what we are dealing with now is legislation that makes 

‘‘Lone-Wolf’’ authority permanent. Well, no hearings, but let us just 

make it permanent because it is not that bad, all you critics of the 

PATRIOT Act. If you understood it and listened and read it, you 

would not feel so bad about it. 

It extends the business records and roving wiretaps for 6 years. 

The majority’s bill would make no further improvements to the PATRIOT Act period. It includes no new protections for privacy. It requires no reporting to Congress to the inspector general audits or 

to any other oversight. And so, I do not feel very supportive of that 

kind of approach. 

And so, thank goodness we will be hearing from some of our witnesses today about the serious issues raised by the 21st century 

government surveillance plan. 

Mr. SENSENBRENNER. Will the gentleman yield? 

Mr. CONYERS. Of course I will yield. 

Mr. SENSENBRENNER. First of all, I ask that the gentleman be 

given two additional minutes. 

Mr. CONYERS. Thank you. 

Mr. SENSENBRENNER. I look back at what happened in 2009, and 

there was only one oversight hearing that was conducted then. And 

there was a bill that was introduced, and following that there was 

a classified hearing that was closed to the public, and the Committee marked it up and sent the bill, you know, off to the floor. 

I have had a very open process, both when I was the full Committee Chairman in 2001 and 2005, and I believe this year as well 

5 

You know, we have heard testimony on the three expiring provisions and what they do, and this was a request for a third open 

hearing on what the PATRIOT Act does not do. So, I think we certainly have been able to hear all viewpoints on this. And, you 

know, I will continue to hear all viewpoints on this, but the time 

for a decision is at hand. 

And if the gentleman wants to respond to that, I will be happy, 

and then we can go on to the witnesses’ testimony. 

Mr. CONYERS. Well, thank you, Mr. Chairman. What I would like 

to do is finish my opening statement, and I do not choose to respond to it. 

So, what I hope—and I am sorry I did not see my Subcommittee 

Chairman or my Judiciary Committee Chairman—on the floor yesterday. I was not able to get there because I wanted to alert you 

to what this discussion was going to be like from my chair today. 

So, it is unfortunate, from my point of view, that we have not 

had more negotiations or discussions that may more quickly lead 

to a bipartisan compromise. Many Members on both sides of the 

aisle have serious concerns about the PATRIOT Act, including 

these three provisions that are about to expire. 

While some Members will judge that they cannot support any reauthorization, others may be open to compromise. Indeed, two inform these negotiations, I have introduced, by the bipartisan compromise measure that has been reported out by the Senate Judiciary Committee, and which has the full support of the intelligence 

community. 

Now, at an earlier hearing of this Subcommittee, the Assistant 

Attorney for National Security and the General Counsel for the Director of National Intelligence, both stated their support for this 

compromise. Both. General Counsel Bob Lipp said that this was 

the kind of measure that, ‘‘...would provide enhanced protection for 

civil liberties without affecting operational utility.’’ 

Can I have some additional time, Mr. Chairman? I yielded to 

you. 

Mr. SENSENBRENNER. But I did not use the whole 2 minutes. 

How much additional time does the—— 

Mr. CONYERS. Well, if you do not want to grant it—— 

Mr. SENSENBRENNER. How much do you want? 

Mr. CONYERS. I want to finish my opening statement. 

Mr. SENSENBRENNER. I ask unanimous consent the gentleman be 

given two additional minutes. 

Mr. CONYERS. Well, thank you for your generosity. 

What we are doing is trying to make meaningful improvements 

in important legislation, and what I am proposing in the bill, 

Chairman Sensenbrenner, is to remove the over broad ‘‘presumption of relevance’’ in Section 215 cases. Instead, require a detailed 

written statement of the facts and circumstances supporting the request for a Section 215 order in every case. 

We also have a provision to offer greater protection to library and 

book seller records. In addition, we tighten up the use of NSLs and 

reform the gag orders that were struck down as unconstitutional 

by the 2nd Circuit Court of Appeals. And finally, it puts in new reporting and audit requirements. 

6 

For many, or for some, this bill will not go far enough, but for 

others it may go too far. For me, the bill represents a reasonable 

compromise. And with the short time that we all know that we 

have, and with the need to find a measure that can win the support of the other body and the Administration, I think this bipartisan compromise measure is the proper vehicle for moving this 

issue forward. 

In any event, I appreciate that we are not here today for a legislative hearing. Instead, we are holding another general oversight 

hearing, this one called ‘‘Dispelling the Myths’’ about the PATRIOT 

Act. This title, of course, raises a question. If the majority has already concluded the concerns about the PATRIOT Act are myths, 

then why is the hearing necessary? It seems like they have already 

made up their mind. 

And I will submit the rest of my statement, and thank you, 

Chairman Sensenbrenner. 

[The prepared statement of Mr. Conyers follows:] 

7 


O66314-1.eps
8 


O66314-2.eps
9 

Mr. SENSENBRENNER. Without objection, other Members’ opening 

statements will be made a part of the record. 

And without objection, the Chair will be authorized to declare recesses during votes on the House floor. 


O66314-3.eps
10 

It is now my pleasure to introduce today’s witnesses. 

Patrick Rowan is a partner in McGuire Woods in Washington, 

D.C., where he practices in the Government, Regulatory, and 

Criminal Investigations group. Before joining McGuire Woods, he 

spent 18 years in the Department of Justice serving as an assistant 

U.S. attorney in Washington, then as acting deputy general counsel 

for the FBI’s national security law branch. And in 2004, he became 

senior counsel to the assistant attorney general in charge of the 

criminal division, where he assisted in the management of all 

counterterrorism investigations. 

Excuse me. In 2006, DoJ established the national security division, which consolidated its law enforcement and intelligence activities on counterterrorism and counterintelligence matters. Mr. 

Rowan served first as the division’s principal deputy assistant attorney general, and then as its assistant attorney general. 

He received his law degree from the University of Virginia in 

1989 and his undergraduate degree from Dartmouth College in 

1986. 

The Honorable Bob Barr represented the 7th District of Georgia 

in the U.S. House of Representatives from 1995 to 2003, and was 

the 2008 Libertarian Party nominee for President of the United 

States. 

He practices law in Atlanta, Georgia, and he is of counsel with 

the Law Offices of Edwin Marger. He runs a consulting firm, Liberty Strategies, Inc., which is also headquartered in Atlanta, and 

is a registered mediator and arbitrator. 

Mr. Barr was appointed by President Reagan as the United 

States attorney for the Northern District of Georgia in 1986, and 

served as president of the Southeastern Legal Foundation from 

1990 to 1991. He was an official with the CIA from 1971 to ’78, and 

additionally, he served as an official member of the U.S. delegation 

at several major United Nations conferences. 

He received his law degree from Georgetown University, his master’s degree from the George Washington University, and his bachelor’s degree from the University of Southern California. 

Mr. Bruce Fein is a constitutional lawyer, scholar, and writer. He 

has served as a visiting scholar for constitutional studies at the 

Heritage Foundation and adjunct scholar at the American Enterprise Institution, a guest lecturer at the Brooking Institution, and 

an adjunct professor at the George Washington University in 

Washington. 

He was appointed as research director for the House Republicans 

on the Joint Congressional Committee on Covert Arms Sales to 

Iran from 1986 to 1987, and was general counsel of the Federal 

Communications Commission from 1983 to 1984. From 1981 to 

1982, he served as the associate deputy attorney general in the Department of Justice and supervised the Department’s litigation and 

vetting of candidates for the Federal judiciary. From 1975 to ’76, 

he served as the assistant director in the Office of Legal Policy at 

DoJ, where his primary duties concerned legislative initiatives, 

aimed at upgrading the administration of Federal justice. Prior to 

his work in the Office of Legal Policy, he served as special assistant 

to the assistant attorney general for the Office of Legal Counsel 

11 

from 1973 to 1975, then he graduated with honors from Harvard 

Law School in 1972. 

Sergeant Edward D. Mullins has been a member of the New 

York City Police Department since January 1982. On July 1, 2002, 

he was elected president of the Sergeant’s Benevolent Association 

of New York City, one of the largest police unions in the Nation 

with more than 11,000 members. 

Early in his career, he was assigned to the 13th Precinct on 

Manhattan’s East Side. After nearly 10 years, he was promoted to 

detective and assigned to the 10th precinct in Manhattan’s Chelsea 

area. Promoted to sergeant in 1993, he was assigned to the 19th 

precinct on Manhattan’s Upper East Side, and subsequently transferred to the detective bureau in Brooklyn South, where he served 

as the violent crime supervisor in the 67th Precinct Detective 

Squad, Special Victim’s Squad, and the King’s County District Attorney’s Office. 

He has a bachelor’s degree from Concordia College and a master’s degree in organizational leadership from Mercy College. 

Each witness will be recognized for 5 minutes to summarize their 

written statement. 

And the Chair now recognizes Mr. Rowan for 5 minutes. 

Could you turn the PA on and bring the mic a little bit closer 

to you, and we will reset the clock? 

TESTIMONY OF J. PATRICK ROWAN, PARTNER, 

McGUIRE WOODS LLP 

Mr. ROWAN. Thank you. Chairman Sensenbrenner, Ranking 

Member Scott, and Members of the Subcommittee, thank you for 

inviting me to testify today. 

My name is Patrick Rowan, and I am currently a partner in the 

law firm of McGuire Woods, but prior to joining the firm in 2009 

I worked at the Department of Justice for 18 years, including at 

the FBI’s office of General Counsel, the Criminal Division, and the 

National Security Division. 

During this period I had the opportunity to work with FBI 

agents and DoJ lawyers who dedicated their days and nights to 

countering the national security threats that face our country. In 

this work, the investigative tools drawn from the PATRIOT Act 

were regularly deployed in the service of our national security. 

Even though the provisions of the PATRIOT Act have been repeatedly and successfully used in national security investigations 

over the last nine and a half years, the Act remains somewhat controversial. While there is great value in the ongoing national dialogue about the balance between national security and liberty, I believe that at least some of the continuing concern about the PATRIOT Act stems from misconceptions that have grown up around 

the Act. Accordingly, I appreciate the opportunity to appear before 

this Committee to address some of those misconceptions. 

I want to talk specifically about the three provisions that are 

scheduled to sunset this month—the roving surveillance provision, 

the business records provision, and the ‘‘Lone-Wolf’’ definition. 

Each requires the government to make a showing to an independent court—the FISA court. Each provision comes with rule 

governing how the government handles information regarding 

12 

United States persons, and each is subject to extensive executive 

branch oversight, as well as congressional reporting requirements, 

all of which is to suggest that they are not particularly susceptible 

to misuse in any way. 

The government’s most recent statements indicate that the 

‘‘Lone-Wolf’’ definition has never been used, let alone abused. The 

two other tools which have been used hardly represent radical incursions on civil liberties as these tools were recognized as available for ordinary criminal investigations long before 9/11. 

Some apparently believe that the government uses these national 

security tools to make an end run around the judiciary and the protections that surround our criminal justice system. I think that notion overstates the protections on the criminal side and understate 

the protections on the national security intelligence gathering side. 

For example, a FISA business records order is used to obtain the 

same records that can be acquired with a grand jury subpoena. As 

a Federal prosecutor, I issued grand jury subpoenas to specific individuals and organizations with virtually no oversight and no meaningful judicial review. Because those records were acquired in the 

course of a grand jury investigation, the person to whom those 

records pertained was ordinarily not aware that the government 

had obtained them. Those records did not necessarily relate directly to the target of the investigation. For example, in a fraud or 

bribery investigation, it would certainly not be unusual to seek 

records relating to the target’s girlfriend to determine if her activities had some relation to the target’s crimes. If the grand jury did 

not return an indictment or the charged offenses were not connected to the girlfriend’s activities, the girlfriend would likely never 

learn that her records had been subpoenaed. 

To employ the FISA business records provision, the government 

must apply to an independent court and demonstrate relevance in 

order to obtain a court order under the provision. There are heightened protections when investigators seek materials that are considered especially sensitive, such as medical records and records from 

libraries. 

If the target of the investigation is a U.S. person, the government 

must show that the investigation is not based solely on activities 

protected by the First Amendment. Moreover, the government 

must adhere to minimization procedures that limit the retention 

and dissemination of the information that is obtained concerning 

U.S. persons. And the government must also report to Congress on 

the use of this tool. 

To the extent that one assumes that criminal investigative tools 

are used with greater care because investigators understand that 

they will eventually have to defend their actions in court, one must 

keep in mind that national security investigations, intelligence investigations, often result in prosecutions as well. Agents know that 

even the most sensitive national security investigation may ultimately end up in a U.S. court where the investigative techniques 

will be scrutinized. This is particularly true when the investigations target a U.S. person. Agents understand that the most obvious and effective tools for neutralizing a U.S. person who threatens 

our security is a Federal criminal prosecution, and they make deciVerDate Aug 31 2005 15:04 Jun 28, 2011 Jkt 000000 PO 00000 Frm 00016 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\051111\66314.000 HJUD1 PsN: DOUGA
13 

sions about the use of investigative tools with that principle in 

mind. 

Let me talk for a minute about the ‘‘Lone-Wolf’’ definition. The 

government recently indicated that it has never had occasion to use 

the ‘‘Lone-Wolf’’ definition, which was contained in the Intelligence 

Perform Terrorism Prevention Act of 2004. And there are some 

that argue that the non-use of the definition demonstrates this provision is unnecessary and that it should be allowed to expire. I do 

not subscribe to this logic. The mere fact that I have never had occasion to use my spare tire does not mean that I would prefer not 

to have one in my car. The availability of radicalizing material on 

the Internet seems to be producing more and more individuals who 

form the intention to carry out violence on their own without the 

aid and support of a terrorist organization. 

These are circumstances for which the ‘‘Lone-Wolf’’ definition was 

created. If and when the need for the ‘‘Lone-Wolf’’ definition arises, 

it should be available to the FBI and their partners at NSD. Valuable time and resources might be wasted in trying to engineer our 

work around for the lapsed definition. 

Many of those who are concerned about the PATRIOT Act seems 

to think that the judges of the FISA court are rubber stamps from 

the government, that these judges approve everything that there is 

to approve and impose no meaningful check on the government. 

From personal experience, I can tell you that simply is not true. 

And I will be happy to answer further questions about the court 

and the other provisions that we are here to discuss today later on 

in the hearing. 

Thank you, Chairman. 

[The prepared statement of Mr. Rowan follows:] 

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Mr. SENSENBRENNER. Thank you very much. The gentleman’s 

time has expired. 

Mr. Barr? 

TESTIMONY OF THE HONORABLE BOB BARR, A FORMER REPRESENTATIVE IN CONGRESS FROM THE STATE OF GEORGIA 

Mr. BARR. Thank you very much, Mr. Chairman and Ranking 

Member Scott, Chairman Conyers, and Members of the Subcommittee and the Judiciary Committee. It is an honor to be here 

to discuss an Act that was passed with my vote back in 2001, but, 

as with many Members on both sides of the aisle who voted for it, 

not without very serious reservations, which is one of the reasons 

why we placed in the USA PATRIOT Act at the time a number of 

sunset provisions. Those were placed in there not simply to provide 

an opportunity to re-up the provisions regardless of whether they 

were ever used, whether they were necessary, whether they had 

been abused, but in order to provide a meaningful mechanism for 

the Congress of the United States to properly and regularly reevaluate whether or not these provisions, like any provisions of 

law, are necessary, need to be limited, need to be expanded perhaps, or are no longer necessary because they have been abused by 

the executive branch. This is both a very conservative view of government as a well as a very liberal view. It does not apply to one 

side of the aisle as opposed to the other. In other words, Members 

on both sides of the aisle should never be afraid to go back and reevaluate a law that was voted for that they might have voted for 

in earlier times based on exigent circumstances, so to speak, and 

the needs of the time, but which, with the passage of time and with 

evidence that the provisions either have been abused or require additional limitations and restrictions, need to be amended. And if 

that is indeed the purpose of this hearing, then I commend the 

Chairman for that and hope that all Members will approach it in 

that light. 

It is very difficult, as this Committee knows, to really get at the 

issues contained in the PATRIOT Act. There is a feeling or a presumption on the part of the American people that whatever is necessary to protect the national security is okay with them and 

should be done. Of course, we on the—you on the Judiciary Committee and we as officers of the court and the private arena or 

sworn law enforcement officers—know that the job of the President 

is not to do whatever is necessary to protect national security. The 

job of the President is in his oath, is to protect and defend the Constitution of the United States of America. And that includes what 

Justice Brandeis said many years ago, and which is as true today 

as it was back in the 1920’s when he penned the words that the 

right to privacy, which is essentially embodied in the Fourth 

Amendment, as the basic privacy protection for the people of this 

country, those who are here lawfully as well as citizens, of this 

country, is the most basic of right. It is the most important thing 

to be protected in our Nation. It is, as Ayn Rand said a number 

of years later in The Fountainhead, the right to privacy is what defines civilization. It defines freedom. And where we have provisions, such as some of these provisions in the PATRIOT Act, as 

well intended as they are, infringe those rights with no necessary 

22 

countervailing requirement in the government that the right to privacy be so suspended. 

It is important to go back and place limitations. For example, 

simply require in these provisions that you all are looking at—Section 215, for example, the business records—provision simply require what the Constitution requires, and that is a reasonable link 

between the person, be it citizen or other person, lawfully in this 

country against who the government is seeking information, whether it is tangible things, tangible items, or business records, whatever it is, at least give that person the benefit of requiring the government to show a reasonable connection—some connection to illegal activity, to terrorist activity, to a known or suspected terrorist, 

or even a known or suspected associate of a terrorist—something 

that gives that person, whether they ever know about it or not. 

That is a red herring. It does not matter whether a person knows 

that their rights have been violated that is the gauge by which we 

determine whether a provision should be continued in law is constitutional. And it ignores it, a requirement that the citizenry of 

this country come before the courts or the Congress or the President and document abuses, nor is that the criteria for determining 

the constitutionality of a particular law. It is whether or not it comports with the intent and the spirit of the Constitution and provision of the law, such as those you are looking at here today and 

tomorrow and on which the House will shortly vote, violate those 

basic provisions because they have broken the link between a citizen of this country or a person in this country’s right to privacy, 

and a reasonable suspicion that they may have done something 

wrong. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

Mr. BARR. That needs to be restored. Thank you, Mr. Chairman. 

[The prepared statement of Mr. Barr follows:] 

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Mr. SENSENBRENNER. Mr. Fein? 

TESTIMONY OF BRUCE FEIN, CAMPAIGN FOR LIBERTY 

Mr. FEIN. Thank you, Mr. Chairman and Members of the Subcommittee. 

I would like to amplify on my prior colleague’s statement about 

liberty and go back to first principles, because I think we have 

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Now, as Thomas Paine who wrote, ‘‘It’s the duty of the patriot 

to protect his country from his government,’’ and it is in that spirit 

I wish to address the PATRIOT Act, because it seems to me its fundamental principles are upside down. 

This country’s bedrock birth certificate was placing the liberty of 

the individual above the powers of government. The Declaration of 

Independence, we are all born with unalienable rights. We are endowed with our Creator with a right to liberty. And the purpose of 

government is to secure those rights. The purpose of government 

is exhausted after it secures those rights. 

And these were not marginal to the fight for our independence 

from Great Britain. James Otis in 1761 deplored the British general writs of assistance because they did not require probable cause 

or particularity in searching persons’ homes. And it was John 

Adams who said that was the bell that sounded the independence 

march of the United States of America. And it’s Patrick Henry who 

is noted for saying, what, ‘‘Give me liberty or give me death,’’ not 

give me liberty, but give me bigger government to protect my liberty. 

And I underscore these things to emphasize that where you start 

in asking the question determines where you end nine times out 

of 10, why that is so important. And the Founding Fathers did not 

cherish the right to be left alone just as an intellectual abstraction. 

It was Justice Louis Brandeis who wrote in 1928, ‘‘The architects, 

the makers of the Constitution, venerated man’s spiritual nature, 

his moods, and his intellect. They sought to protect Americans in 

their beliefs, their attitudes, seclusions, and challenges to conventional wisdom. They crown citizens with the right to be free from 

government encroachments, the hallmark of every civilized society.’’ And he concluded, ‘‘Every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means 

employed, must be deemed a violation of the Fourth Amendment.’’ 

Now, it is has been said by many, well, where are these court 

decisions, saying the PATRIOT Act is unconstitutional. There have 

been a few, but I can see there are few. But the Supreme Court 

and courts err. In the opinion I was quoting from Justice Brandeis, 

the court then held conversations were not even protected by the 

Fourth Amendment, that the government could wiretap and surveil 

free from any restraints because conversation was not in the text 

of the Fourth Amendment that addressed persons, houses, papers, 

and effects. Thirty-nine years later, the Supreme Court reversed. 

And we all remember it was this body in 1988 told the Supreme 

Court during World War II, they got it wrong when they said, you 

could use race-based concentration camps for Japanese-Americans. 

Courts can get it wrong. The Supreme Court itself has reversed 

perhaps 200 times bedrock constitutional principles. So, we should 

not be complacent with the fact that, well, where are the courts out 

there? 

Moreover, there are reasons why there would not be a plethora 

of suits challenging the PATRIOT Act. Number one, a former attorney general said, to criticize the Act was to aid and abet enemies 

in terrorism. There is a climate out there that if you challenge the 

government on the PATRIOT Act, you are then unpatriotic. You 

then deserve a opprobrium, and that has been true with many who 

70 

defended those who were detained at Guantanamo Bay. That is not 

the United States of America that was born in 1776. Remember 

John Adams? He defended the British soldiers accused in the Boston Massacre. He defended them. He did not say, well, this is time 

when we have to be angry at Great Britain. Due process is out the 

window. That explains why you do not have a mushrooming number of lawsuits, aside from the fact that in intelligence collection, 

the target of the investigation is never alerted as they are in a 

Title III case. How would they know that there is a violation? 

There is just a huge database, and the fact that the database exists 

is an abuse of itself. 

Now, I want to address specifically the idea, the need to gather 

just intelligence on Americans because need to protect against 

international terrorist. Harlan Fiske Stone was appointed attorney 

general in 1924. He was later appointed Chief Justice of the United 

States, and he shut down all—all—of the FBI’s intelligence collection methods. He said, we have to limit this to law enforcement 

only. There had been abuses. He styled what the Bureau is doing 

as tyrannical. So, that is a red herring, in my judgment. 

The United States lived securely for over 100 years without just 

intelligence collection in databases, and I think we can do that 

today. Probable cause to suspect of crime or the discovery of evidence of crime? Of course the government can seek that kind of evidence. But this is a free country, and the fact that we have limited 

government, just as Robert Jackson said, does not mean we have 

weak government. And this is very important. Justice Jackson, of 

course, was a prosecutor at Nuremberg in addition to being on the 

United States Supreme Court. And if you would indulge me, let me 

read his opinion here, because I think—— 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

Mr. FEIN. All right. Well, thank you. 

[The prepared statement of Mr. Fein follows:] 

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Mr. SENSENBRENNER. Mr. Mullins? 

TESTIMONY OF ED MULLINS, PRESIDENT, 

SERGEANTS BENEVOLENT ASSOCIATION OF NEW YORK 

Mr. MULLINS. Mr. Chairman, Ranking Member Scott, and Members of the Subcommittee, thank you for having me here today. I 

am here as the head of a police labor organization representing my 


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members and their family. I also speak with the perspective of a 

sworn law enforcement officer with 30 years of experience. 

I responded to the scene of the terrorist attacks on September 

11th, 2001. I also responded in 1993 to the terrorists’ first attempt 

to topple the Twin Towers. 

I am a third generation New Yorker whose life was forever 

changed by the terrorist attacks of 9/11. These unprovoked attacks 

devastated New York City and the ranks of its fire and police departments. The 2,973 innocent men, women, and children killed on 

9/11 surpassed the death toll America suffered in the surprise attack on Pearl Harbor that triggered our entry into World War II. 

Sadly, the final casualty figures from 9/11 are not yet known. 

Those terrorist acts continue right up to the present day to claim 

the lives of more firefighters, police officers, construction workers, 

and ordinary citizens who were caught in the events of that fateful 

day. These are the people who, in the years after 9/11, have developed debilitating illnesses and died from their exposure to the toxins released when the World Trade Center Towers collapsed. 

The James Zadroga 9/11 Health and Compensation Act, passed 

late last year to help discontinue victims, is a stark reminder that 

while justice has been served on bin Laden, innocent Americans 

continue to die and suffer as a result of his evil. 

The USA PATRIOT Act was enacted in direct response to these 

terrorist attacks for the purpose of preventing any repetition. I appreciate the chance to help clear up some of the myths surrounding 

the deliberations over whether to reauthorized three specific expiring PATRIOT Act authorities. Let me begin by setting aside the 

false clarities and simplicity that seek to impose on these deliberations. 

Reauthorizing these authorities is not a stark choice between 

whether we place a greater value on our civil liberties than our security. It is not a choice between freedom and a police state. Let 

us not lose sight of how much alike every one of us in this room 

today really is. We share the same values. We are all Americans 

who love our country and the liberties upon which it is founded. 

We all hate seeing our fellow citizens slaughtered by bin Laden’s 

demented disciples. None of us desire or intend to extinguish liberty in the pursuit of security. We only differ as to how, not if, our 

elected representatives should strike a balance between the universal value of protecting innocent lives from murderers and our 

uniquely American notion of individual liberty. 

Reauthorizing the three provisions set to expire later this month 

strikes the right balance. By any historical yardstick, these authorities are a measured response to an unprecedented and undeniably real threat to our Nation. A generation learned from struggles, 

the heroes of our past encountered imbalance in liberty and security while reacting to the unprecedented threats. We did not respond by rounding up and committing to internment camps all 

members of the ethnic and religious minorities from which the perpetrators of 9/11 were descended. We did not grant law enforcement wholly unprecedented powers never before entrusted to police 

on our shores. What we did was to extend the Federal agents hunting terrorist powers analogous to those that state and local enforceVerDate Aug 31 2005 15:04 Jun 28, 2011 Jkt 000000 PO 00000 Frm 00088 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\051111\66314.000 HJUD1 PsN: DOUGA
85 

ment have long used to investigate drug dealers, burglars, and 

other common criminals. 

In closing, let me dispel one final myth. We can let our guard 

down and permit these authorities to sunset because bin Laden is 

dead. The Pakistani Taliban, which was behind last year’s attempt 

to bomb Time Square, has vowed revenge. They have bragged, ‘‘We 

already have our people in America and are sending more.’’ Do not 

allow our recent success to obscure the fact that 10 years ago in 

less than 2 hours we lost more Americans at the hands of bin 

Laden’s henchman than we did almost 70 years ago on the Island 

of Guadalcanal. 

Our enemies are more desperate than ever to replicate this horror. A generation faces an unprecedented threat from a new kind 

of foe. Still, we are very fortunate. Responding to the great crisis 

of our age does not require drafting citizens to fight. It has not necessitated the conversion of our economy to wartime footing. There 

is no rationing of fuel, food, and other resources. Citizens are not 

even asked to buy war bonds. It is a testament to America’s 

strength that most citizens can go about their lives much as they 

did before 9/11 and delegate defeating the terrorists who declared 

war on us to a relatively small group of volunteers. 

As cops, my members are among those volunteers. We pray that 

as you debate the tools available to our Federal counterparts that 

played a critical role in this mission, they will be pragmatic in balancing the defense of our Nation with the preservation of the freedoms we cherish. We hope that you will not be seduced by rigid 

ideologies that demand the sacrifice of one of the fundamental values of another. 

As you know, this week is Police Week in our Nation’s capital. 

As we recognize all those officers who made the ultimate sacrifice, 

I beg that you do not disarm those sworn to protect you at a time 

when our enemies are bringing a renewed fervor and new tactics 

in their efforts to murder Americans. 

[The prepared statement of Mr. Mullins follows:] 

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Mr. SENSENBRENNER. Thank you very much, Sergeant. 

The Chair will now recognize Members alternatively by side for 

5 minutes to ask questions of the members of the panel. And the 

Chair has made note of the approximate order in which Members 

have appeared, and will use that list in terms of recognizing folks. 

And the Chair recognizes himself for 5 minutes. 


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Mr. Barr, you voted in favor of the PATRIOT Act when it was 

considered in the Committee, and then you voted in favor of another version that was less favorable to civil liberties when it appeared on the floor in October of 2001. The Committee has done 

extensive oversight under both Republican and Democratic control. 

Why do you think we failed, and why are you opposing just a simple extension of what has been the law since 2005 in these three 

areas given your votes in favor of it? 

Mr. BARR. I certainly, Mr. Chairman, would not deign to try and 

speculate on what Members have done or not done or why. I can 

certainly speak for myself. 

Yes, I did vote both for the better version more protective of civil 

liberties that was reported out unanimously by the full Judiciary 

Committee. Subsequent to that, when a very different bill came to 

the floor, I had several conversations, including some personal 

ones, with the Attorney General and some other members of the 

Department of Justice with regard to certain promises or assurances that the provisions in the PATRIOT Act then to be voted on 

would be used in certain ways for certain investigations that were 

indeed important national security terrorism related investigations. 

There were promises made that the executive branch, the President and the Attorney General, would report regularly and openly 

and extensively on the use of the PATRIOT Act. 

Mr. SENSENBRENNER. Oh, I think they did that after you left the 

Congress. As a matter of fact, there was one time I cancelled a 

hearing of Attorney General Ashcroft because he didn’t submit his 

testimony on time. So, you know, maybe we were busy doing something else. 

Let me ask you another question. There was an outstanding warrant against Osama bin Laden. You condemned the President for 

sending a U.S. military unit to strike and kill him when the civilian justice system was waiting to grind slowly away at him? 

Mr. BARR. No, I think this was one of those instances in which 

the resolution the use of military force does provide and did provide 

proper authority for the presidential action of taking out Osama 

bin Laden. 

Mr. SENSENBRENNER. Okay. But should not the President have 

used what you refer to as tried and true methods of capturing what 

you call a criminal-like bin Laden, like pursuant to an arrest warrant? 

Mr. BARR. No, simply because an individual can be pursued either through the criminal justice system or militarily in certain circumstances does not make it improper to choose one over the other. 

And in this instance, I think the President chose wisely and properly, and it was properly authorized by the Congress, unlike some 

of the other actions by the current and former Administration 

using the resolution for the use of military force which does not 

provide proper authority. 

Mr. SENSENBRENNER. The PATRIOT Act was passed after 9/11. 

Do you think the U.S. attorneys of New York, New England, and 

Washington, D.C. could have prevented the 9/11 attack by using 

traditional law enforcement methods? 

Mr. BARR. Certainly not being privy to all of the information that 

they had or did not have or the circumstances under which certain 

93 

acts were authorized or not authorized, it does seem to me that 

there was more than sufficient authority to have given us—the 

U.S. government, that is—a much greater chance, likelihood of 

having prevented the attacks had those proper preexisting authorities been used. They were not used. 

Mr. SENSENBRENNER. Well, the PATRIOT Act repealed the wall 

that prevented the FBI and the CIA from exchanging information. 

So, if the CIA knew that there were Al-Qaeda terrorists loose in 

the United States and, specifically, in the New York City area, it 

would have been a violation of the pre-PATRIOT Act law for the 

CIA to walk that information across the hall and give it to the FBI. 

Mr. BARR. Not necessarily. 

Mr. SENSENBRENNER. Oh, yes, it would have. Yes, it would have. 

Yes, it would have been. 

Mr. BARR. And on circumstances under which it was required, 

Mr. Chairman. 

Mr. SENSENBRENNER. Well, if the circumstances were, you know, 

that they acquired it overseas and then they found out that they 

appeared in New York, it was still giving them intelligence that 

they had found overseas. And the 9/11 Commission determined 

that the wall prevented that, and they studied it extensively for a 

couple of years. 

Mr. BARR. Well, we also now know, and with hindsight, that 

the—is the 19th or 20th hijacker—I forget the number—that had 

the government gone before a court and sought a warrant to access 

that person’s computer, which a court, based on the circumstances 

we know now existed at the time, almost certainly would have 

granted a warrant. The fact of the matter is, the government chose 

not to do that. They made a policy error. It was not that the law 

did not allow it. They made a policy error. 

Mr. SENSENBRENNER. Well, you know, from what I have heard 

you say, I think that you are advocating that before 9/11, the FBI 

would have violated the law that that was put up by the Church 

Commission if they ended up exchanging intelligence information. 

And as a result of the PATRIOT Act, we do not have that any 

more. 

The gentleman from Virginia, Mr. Scott? 

Mr. SCOTT. Thank you, Mr. Chairman. 

One of the problems with the PATRIOT Act is understanding exactly what it does. And so, Mr. Rowan, let me ask you a question. 

In declaring someone to be a ‘‘Lone-Wolf’’, where you can begin 

surveilling them, what information and what standard is there that 

you would not be able to get a run of the mill criminal warrant? 

Mr. ROWAN. Congressman, as you know, the FISA statute, with 

respect to the ‘‘Lone-Wolf’’ definition, talks about an individual engaged in activities relating to terrorism or preparation therefor. So, 

potentially you could think of circumstances where an individual 

was engaged in preparation for terrorist activities, and yet an Article III judge looking at it from a criminal law enforcement perspective might determine that there is not probable cause. 

But I agree with the thrust of your question, which is that most 

of the circumstances one can conceive of would also describe a 

crime that you could obtain a Title III wiretap under. 

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Mr. SCOTT. Okay. Let me ask the same question about business 

records. You’ve suggested it is the kind of same as criminal. What 

kind of investigation could you get business records under PATRIOT Act that you cannot get them under a regular criminal warrant? 

Mr. ROWAN. Well, when you say a warrant, I presume you mean 

a grand jury subpoena. Certainly, a—— 

Mr. SCOTT. Well, whatever the warrant, grand jury subpoena, or 

however else you want to get it. 

Mr. ROWAN. Yeah. No, I think you are right, that you could get 

all those tangible things with a grand jury subpoena. The critical 

difference is obviously not what you can get, but the circumstances 

under which you can get it. If you get it under a business records 

under FISA, you have the opportunity to gather it covertly, to use 

it for an intelligence investigation with far less risk that your investigation is going to be exposed. 

Mr. SCOTT. And if you get it with a criminal warrant, you cannot 

keep it secret? 

Mr. ROWAN. You cannot. I mean, with a grand jury subpoena, 

you are in a position when it hand it to a third party custodian. 

That custodian has every right and opportunity to turn around and 

share it with whoever else he or she cares to include in the target. 

Mr. SCOTT. And you cannot have an order prohibiting the dissemination of that information in the criminal court? 

Mr. ROWAN. I think what conventionally occurs is an AUSA will 

write a letter. They will request the third party custodian not to 

share the information. The actual getting an order from a judge, 

there may be circumstances under which you can obtain that. I 

think there are some judges that would provide it, others that 

might not. 

Mr. SCOTT. Roving wiretap—who gets to approve it, and after approval, what kind of oversight is there that is different under the 

PATRIOT Act that you cannot do in a normal criminal warrant? 

Mr. ROWAN. Well, a roving wiretap is obviously a FISA wiretap, 

so the approval mechanism—— 

Mr. SCOTT. Well, no. Under FISA, you have to designate it to be 

roving rather than kind of a stationary wiretap, or all wiretaps 

under FISA roving wiretaps? 

Mr. ROWAN. No, they are not all roving wiretaps. The way it 

kicks in is when you are asking the court—the FISA judge—what 

sort of orders you are going to need, and that is when the circumstances under which you described this as being an occasion 

where you need a roving wiretap. So, the approval mechanisms 

there, both within the Department of Justice, they are higher for 

a roving wiretap in a FISA context than you would have in an ordinary Title III wiretap. The approval with respect to the judiciary 

is going to be the same thing. It is going to be an Article III judge, 

and one of them happens to sit on the FISA court, the other does 

not. 

Mr. SCOTT. Once you get personal information subject to surveillance, exactly how many people have access to that information? 

Mr. ROWAN. When you say surveillance, you mean in the FISA 

world. 

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Mr. SCOTT. Yeah, in the FISA world, you got a FISA wiretap. In 

Northern Virginia, a lot of people work for the ‘‘government.’’ How 

many people get access to the private information that you have 

listened into? 

Mr. ROWAN. As you know, in the FISA statute there are a requirement for minimization procedures, which are procedures that 

are approved by the FISA court, which restrict the government’s 

dissemination of information. With the respect to—— 

Mr. SCOTT. Well, the whole point of this is for the FBI to talk 

to the CIA, to talk to everybody else. I mean, how many people get 

access to this information? 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

Gentleman from California, Mr. Lungren? 

Mr. LUNGREN. Thank you very much, Mr. Chairman, and thank 

you for these hearings. 

Mr. Fein, you and I have been on the same side of arguments 

before, but we find ourselves on the opposite side of the argument 

this time. You make a statement that I hope is an overstatement, 

where in your written testimony you say that repealing the PATRIOT Act would honor what the Americans who fought in the 

Civil War begot. Do you really favor repealing the entire PATRIOT 

Act, even that section which dismantled the so-called wall between 

law enforcement intelligence that the 9/11 Commission indicated 

was one of the major vulnerabilities that we had, and one of the 

reasons why we could not connect the dots so that we might be 

able to prevent the kind of attacks that we saw on 9/11? 

Mr. FEIN. I believe that the 9/11 Commission concluded that the 

9/11 abominations would have been thwarted if the so-called wall 

of separation had been absent. And I believe Jamie Gorelick, who 

was on the 9/11 Commission, who was deputy attorney general, I 

believe, when the alleged wall of separation was erected, denied 

that there really was that wall. And I do not believe that in passing the USA PATRIOT Act, that this Congress made a finding that 

if the wall was not erected, 9/11 would not have occurred. 

Mr. LUNGREN. My question, though, is do you really favor repealing the entire PATRIOT Act? 

Mr. FEIN. What I stated in the testimony, Mr. Congressman, was 

that the burden is on the government in this country to demonstrate the need and urgency to compromise the customary probable cause to suspect crime to endow government with authority—— 

Mr. LUNGREN. So, you think the probable cause to suspect a 

crime is sufficient to give us the kind of information necessary to 

find out about the possibility of a terrorist act and thwart it before 

it is carried out. You think the criminal law intelligence, criminal 

law procedures that we have talked about are sufficient to do that? 

Mr. FEIN. I believe the Constitution places the burden on government, when it wants to encroach on liberties to be justified. 

Mr. LUNGREN. No, I understand that. But what I am saying—— 

Mr. FEIN. And so, the burden—— 

Mr. LUNGREN [continuing]. Are you telling us what we have are 

sufficient to thwart terrorist attacks as opposed to gathering the 

evidence after in fact is has occurred to be able to convict those 

who may be involved in it? 

96 

Mr. FEIN. Well, first of all, you can gather evidence before any 

attack has concurred under the conspiracy laws. As you well know, 

conspiracy can reach before you come close to even getting that attempt. 

Secondly, I have stated that if this Committee can establish by 

empirical evidence, make a finding that these powers are indispensable to preventing a terrorist attack, then you have a justification 

for breaching the wall. But I do not have—— 

Mr. LUNGREN. Okay. So, do you have confidence in this Committee that we could make such a finding? 

Mr. FEIN. Ordinarily findings should not be made out of trifles 

lai desaire, meaning you have got to define based upon evidence—— 

Mr. LUNGREN. Well, I guess your answer is no. I guess you do 

not trust us to be able to make that finding. 

Mr. FEIN. No, I expect there to be empirical evidence with the 

experts who would state, yes, if we had this power, this particular 

investigation would have reached fruition and then blocked a terrorism act, and otherwise could not have happened. 

Mr. LUNGREN. Well, the predicate—— 

Mr. FEIN. Those decisions are made all the time. 

Mr. LUNGREN. The predicate for wiretaps is not that a crime is 

being committed, but that surveillance is necessary because the 

person to be surveilled is a foreign power or agent of a foreign 

power. It does not mean that they are involved in a crime at that 

point in time? Do you not think that is a sufficient basis for being 

able to have a wiretap? 

Mr. FEIN. I think that Title III does require suspicion of implication in crime, and I think that ought to be the standard. 

Mr. LUNGREN. So—— 

Mr. FEIN. That is the standard that Harlan Fiske Stone, Chief 

Justice—— 

Mr. LUNGREN. I understand. 

Mr. FEIN [continuing]. And former attorney general adopted for 

the—— 

Mr. LUNGREN. So, you are saying that we do not have the right 

to spy on foreign powers in our own country unless we have evidence that they are about to ready to commit a criminal act. 

Mr. FEIN. Now, if you are spying on citizens on the United States 

or people that are here lawfully, that is one thing. It is something 

else if you are spying on diplomats who are involved in embassies 

or otherwise. They are not loyal to the United States. They do not 

have the same protection. 

Mr. LUNGREN. And the definition of a U.S. person in this Act is, 

someone who is a citizen or someone who is a permanent resident 

alien. Other people are allowed under this, but those are not. 

Mr. Mullins, you have had more than a slight participation in 

the criminal justice system. Are you satisfied that the criminal 

tools that are available to law enforcement are sufficient that we 

do not the PATRIOT Act in our anti-terrorism efforts? 

Mr. MULLINS. Not at all. 

Mr. LUNGREN. Well, why is that? I mean, you use that every day. 

If I listen to Mr. Barr and Mr. Fein, you should be very satisfied. 

You guys are professional. You know what you are doing. You have 

97 

been able to do a great job in the city that you represent. Why do 

we need this? 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

The gentleman from Michigan, Mr. Conyers? 

Mr. CONYERS. Thank you. This is a quite interesting discussion 

because what we are exchanging views on is whether the failure 

of 9/11 was a failure of intelligence analysis or law enforcement. 

And I hear Members on the Committee claiming that law enforcement dropped the ball and that is how it happened. But I think 

that it was failure of intelligence, and I would like you two to comment on it, because since 9/11, of course, we have reorganized our 

whole Federal law enforcement, given the FBI, for example, the 

mission of preventing terrorism. And so, the failure of 9/11 was in 

one sense a failure to connect the dots. It was a failure to use the 

information that we had. And I would like you to expand on that. 

Mr. FEIN. Representative Conyers, I do not know whether I 

would be all that critical of the intelligence people. They make errors make from time to time. 9/11 was unprecedented in many 

ways. People did not think that that kind of dastardly abomination 

would be plausible, but certainly think, and I think Mr. Barr mentioned, that Mr. Moussaoui, the 20th hijacker, there was clearly 

probable cause to search his computer that could have uncovered 

the plot, and simply was not exercised on that score. 

And with regard, I think, to the general idea that anything that 

makes it easier to thwart terrorism is justified, then you might as 

well say, go into anybody’s home and spy whenever you want. And 

if the question is, DoE sit make it more likely for us to thwart terrorism, the answer is yes, but it destroys the country that we know 

and we fought to maintain as a country give to freedom rather 

than national security. 

Mr. BARR. I would say probably, not to coin a phrase, but what 

happened in the lead up to 9/11 was probably a perfect storm of 

failures. I do not think that it was, nor is it the case today, that 

these terrorists are all rocket scientists, and know exactly what 

they are doing, and never make mistakes. 

They got very lucky on 9/11. There were numerous opportunities, 

from enforcing our immigration laws to enforcing the laws requiring and establishing security at airports, to laws allowing the government to access computers, that were simply not exercised by the 

government at all levels, state government as well as Federal Government. There were licenses that were obtained, driver’s licenses 

based on false pretenses and false information that were never 

checked out. There were immigration statuses that were overstayed 

that the Federal Government did not enforce. There were not proper steps taken to search the baggage and so forth. And the 20th 

hijacker did not have his computer access, which the government 

could have. There was authority to do that. Yet, I do not recall, and 

maybe the Chairman does, but I do not recall that the post-9/11 

hearings that we had leading up to the PATRIOT Act, any government witnesses coming in and saying they had made a mistake. 

They all paraded in here and said, oh, we did not have enough authority. We did not have enough money. Give us more authority, 

give us more money, rather than address the mistakes that had 

been made by failing to use existing powers. 

98 

Mr. CONYERS. I ask unanimous consent to put in a New York 

Times story that said that the leaders—‘‘Bush Was Warned Bin 

Laden Wanted to Hijack Planes.’’ 

Mr. SENSENBRENNER. Without objection. 

[The information referred to follows:] 


B66314-1.eps
99 

Mr. CONYERS. Thanks, sir. And another one from the Washington 

Post, the heading, ‘‘Two Months Before 9/11, an Urgent Warning 

To Rice.’’ 

Mr. SENSENBRENNER. Without objection. 

[The information referred to follows:] 


B66314-2.eps
100 


C66314-1.eps
101 


C66314-2.eps
102 

Mr. CONYERS. Thank you again. 

Now, I want to dispel this misunderstanding that some Members 

seem to be articulating up here. This is not about a hearing of 

whether we have no PATRIOT Act or we continue the same PATRIOT Act. I want to make that clear. This is about how we improve the PATRIOT Act, and that is why I have a compromise bill 

that I strongly suggest that we try to have some hearings on. We 

are not having hearings on the bill itself. This a hearing called 

‘‘Dispelling the Myths.’’ That is not a hearing, and I insist that—— 


C66314-3.eps
103 

Mr. SENSENBRENNER. The gentleman’s time has expired. The 

gentleman from Michigan knows full well that the Committee 

Rules require advance notice of hearings so that everybody can be 

prepared, and he dropped his bill last night, which was well after 

the time deadline that was required for a hearing today. And the 

full committee Chair has scheduled a markup tomorrow. So, I 

think the gentleman is a little bit too late in meeting deadlines of 

rules that everybody knows. 

The Chair now recognizes—— 

Mr. CONYERS. Would the Chairman allow me 30 seconds? 

Mr. SENSENBRENNER. Certainly, without objection? 

Mr. CONYERS. You dropped your bill Friday. 

Mr. SENSENBRENNER. Mm-hmm. 

Mr. CONYERS. I guess that makes your bill okay and my bill too 

late. 

Mr. SENSENBRENNER. My bill was dropped in time for the full 

Committee Chair to notice the bill for a markup tomorrow, so we 

complied with the rules on that. And everybody has now had 5 

days to see what was in the legislation that I dropped. You dropped 

yours last night. You did not see me on the floor. You did not see 

the gentleman from Texas, Mr. Smith, the full Committee Chair, 

on the floor. So, we got here today to find out that you dropped 

your bill, and we found out a couple of hours before this hearing. 

The gentleman from Florida, Ms. Adams? 

Ms. ADAMS. Thank you, Mr. Chair. I will yield my time to the 

gentleman from South Carolina. 

Mr. SENSENBRENNER. Okay. The gentleman from South Carolina 

is next up on the Republican side. Without objection, the Chair will 

recognize the gentleman from South Carolina, Mr. Gowdy, for 10 

minutes? 

Mr. GOWDY. Thank you, Mr. Chairman, and I want to thank the 

gentle lady from Florida for yielding and also for her service as a 

distinguished law enforcement officer prior to coming to Congress. 

Mr. Fein, I want to be very, very clear about this. I do not and 

have never challenged the patriotism of anyone who holds a contrary viewpoint on this Act. In fact, I applaud you for probing and 

questioning and challenging. And I would hope in that spirit that 

you would also help those of us who have a contrary view on the 

constitutionality of this Act to beat back the rhetoric, to instruct it 

with fact. And when I read that this hearing is about national security letters, or jackbooted thuggery, or sneak and peak search 

warrants when it demonstrably false, just as I would rise in defense of your patriotism, I would hope that you would rise in defense of the truth about what these hearings are about. 

And as you mentioned, the spirit of the Fourth Amendment, that 

is the conversation I would like to have with you, one grounded in 

civility, but one about the depth and breadth and spirit of the 

Fourth Amendment. Fair enough? 

Mr. FEIN. That is fair enough. 

Mr. GOWDY. All right. You mentioned in your testimony, and I 

will quote, ‘‘Government in the United States has no business collecting or retaining information about citizens without probable 

cause to believe that crime has been or will be committed.’’ So, you 

104 

allow that there needs to be government involvement in the investigation of future crimes. 

Mr. FEIN. Yes, conspiracy is a perfect example, yes, sir. 

Mr. GOWDY. Right, and there are other examples. I mean, you 

cannot wait until something happens to begin to investigate. 

Mr. FEIN. Well, that is what conspiracy law is about. Conspiracy 

means nothing has happened; you just have an agreement, and you 

can investigate the agreement to commit an unlawful act, and that 

is permissible. 

Mr. GOWDY. Well, the difference is, in a conspiracy case, nothing 

ever has to happen. It is a crime just to conspire to commit an offense. You can have conspiracies all day long and not ever have a 

crime. Agreed? 

Mr. FEIN. Well—— 

Mr. GOWDY. I mean, there does not have to be—— 

Mr. FEIN [continuing]. Some conspiracies you do not need any 

overt action. 

Mr. GOWDY. You need no overt action Title XXI conspiracy. 

Mr.. Fein. You can go ahead and prosecute, but all I am saying 

is that you can begin an investigation before anything happens 

under the criminal law. 

Mr. GOWDY. Agreed, but you used the word probable cause in 

that sentence. And then in another sentence you said the whole 

purpose of the Fourth Amendment is to saddle government with a 

heavy burden of demonstrating by indisputable evidence. Now, you 

would agree with me, Mr. Fein, that is not the standard. Indisputable evidence is not the standard by which the Fourth Amendment is judged. 

Mr. FEIN. Indisputable evidence that the inquiry would produce 

is focused on somebody who is probably implicated in crime or the 

evidence unearthed would shed light on a crime. 

Mr. GOWDY. Well, the word ‘‘indisputable’’ and ‘‘probably’’ do not 

fit nicely in the same sentence. What is your definition of probable 

cause? 

Mr. FEIN. The one that the U.S. Supreme Court has said you 

have got some reasonable foundation and suspicion that ordinary 

people applying their intellect would conclude makes it substantially likely that the individual is engaged in crime. 

Mr. GOWDY. It is a fair probability, right? 

Mr. FEIN. Fair probability, yes. 

Mr. GOWDY. That is what the Supreme Court said, and that is 

very different from indisputable evidence. 

Mr. FEIN. Yes, but I believe my statement with regard to indisputable evidence is indisputable showing that this particular investigatory tool is necessary to investigate crime under those standards, not the standard for getting a warrant. 

Mr. GOWDY. But you will agree with me that there are several 

areas of criminal law where the standard is not probable cause. 

You do not have to have probable cause for a terry-like encounter 

with law enforcement. You have a distinguished law enforcement 

officer right beside you. If there were to be a police citizen encounter on the street, he does not have to have probable cause to frisk 

me for weapons, right? 

105 

Mr. FEIN. And that is not viewed as a search. It is a stop and 

frisk. 

Mr. GOWDY. Well, you can remove weapons and contraband from 

their hand or from their pocket under another exception to the 

Fourth Amendment, which is the Plain Feel Doctrine. Do you agree 

or disagree with the Plain Feel Doctrine? 

Mr. FEIN. No. The Plain Feel is you have got plain evidence that 

a crime or contraband is in your vision. 

Mr. GOWDY. But you do not have a warrant. 

Mr. FEIN [continuing]. Probable cause. No, I am not saying— 

probable cause does not mean you have to get a warrant in every 

circumstance. Sometimes you can act without a warrant, but you 

would have to establish probable cause if it were challenged after 

the fact. 

Mr. GOWDY. And you will agree that there are areas of criminal 

law where well before the PATRIOT Act, all you had to have was 

a reasonable suspicion or an articulable suspicion, or, in some instances, just a hunch. 

Mr. FEIN. With regard to full scale searches and seizures, no, sir, 

I do not believe that is the law. 

Mr. GOWDY. Well, but then we get into a discussion of what is 

a full scale search and seizure. Can I put a tracking device on an 

automobile? 

Mr. FEIN. I think that is in dispute now, depending upon whether the tracking device is there 24 hours a day. I believe that case 

is just in the U.S. Court of Appeals for the District of Columbia. 

Mr. GOWDY. But there are courts of appeals, including the 4th 

Circuit, which have said you can put electronic tracking devices on 

automobiles, right? 

Mr. FEIN. Yes, there are, and they may be wrong. 

Mr. GOWDY. They may be, but what if they find out in 10 years 

we are all wrong? 

Mr. FEIN. You have an independent judgment to make as well. 

The Olmstead case in 1928 said wiretaps are free, that you do not 

have to have any cause whatsoever, and it was overruled 3o9 years 

later. 

Mr. GOWDY. Right. 

Mr. FEIN. And this body has a tradition of looking at court decisions and maybe overruling them. They did that with regard to 

Korematsu and Haribiyashi when they enacted the Civil Liberties 

Act. 

Mr. GOWDY. We are having a hard time getting the laws we have 

passed enforced right now with respect. This executive branch does 

not enforce the laws we do pass, so the notion that we are going 

to foresee—— 

Let me ask you this. Do you agree that law enforcement should 

be able to search the computer records of a suspected child pornographer who uses a taxpayer funded computer at a public library? 

Mr. FEIN. If it satisfies probable cause, they will come up with 

evidence of crime. Of course, yes. 

Mr. GOWDY. They have no—well, it does not have to be probable 

cause. An assistant United States attorney can send a subpoena, 

right? You do not have to have a search warrant. 

Mr. FEIN. I am talking about probable cause. If it just—— 

106 

Mr. GOWDY. I know you are talking about probable cause, but 

what I am trying to establish is there is a rich jurisprudence in 

this country where probable cause is not the only standard. An assistant United States attorney can send a grand jury subpoena to 

a library and get your library records today, correct? 

Mr. FEIN. That is correct because the Supreme Court, and I 

think they got it wrong, says that if the information is in the hands 

of a third party, then you have no protectable—— 

Mr. GOWDY. You have no understanding. 

Mr. FEIN [continuing]. Reasonable expectation—yeah. 

Mr. GOWDY. You have no expectation of privacy. 

Mr. FEIN. I believe that is an incorrect interpretation of the 

Fourth Amendment. In today’s Internet era, you can have your virtual digital diary of everything you have done tracked in the hands 

of third parties, and that doctrine enables then the government to 

find—really look in your diary—— 

Mr. GOWDY. Or you can be on notice that the law is what it is 

and not keep things that you have an expectation of privacy—— 

Mr. FEIN. I think if you are an American, you are endowed with 

liberty, and the burden is on the government to overcome your 

right to be left alone, not the other way around. 

Mr. GOWDY. You think that you are endowed with the liberty to 

use a taxpayer funded computer at a taxpayer funded library and 

search for child pornography, and have standing to contest whether 

or not the government can get those records. 

Mr. FEIN. If the government is providing it and they place certain conditions that the government places certain conditions on 

use, that may be different because you are then given alert that 

you are using government property. It is like if you are living in 

government operated house, they may say, well, then you are going 

to be searched to make sure you do not have guns or something 

in there. So, that changes—— 

Mr. GOWDY. Well, that raises a wonderful point. Would you agree 

with me that as a condition of probation, the government can say 

we have the right to search you when we want to? As a condition 

of parole or probation, you consent to be searched. 

Mr. FEIN. If they wish to—if you have already established that 

they violated the law, this is a privilege they have got now to go 

out on probation. The government can set those conditions. 

Mr. GOWDY. Well, wait a minute. You have already served your 

debt to society. 

Mr. FEIN. Well, with regard to parole, I am not sure—— 

Mr. GOWDY. Or probation. There is no parole in the Federal system. 

Mr. FEIN [continuing]. That if you violate the conditions of parole, you return to—— 

Mr. GOWDY. Could we make it a condition on admittance to this 

country that you consent to be searched? 

Mr. FEIN. If you are not a U.S. citizen, that is—— 

Mr. GOWDY. So, you do not have a problem with that. 

Mr. FEIN. The rule on border searches is that you do not have 

to—yeah, you do not cause whatsoever. It is an exception to the 

Fourth Amendment. 

107 

Mr. GOWDY. Border searches, probation searches. So, there has 

already been an erosion in your judgment of the probable cause 

standard, the warrant standard, of the Fourth Amendment. 

Mr. FEIN. In very narrow circumstances, yes. 

Mr. GOWDY. All right. Do you disagree with the lawfulness of anticipatory search warrants? 

Mr. FEIN. Of what search warrants? 

Mr. GOWDY. Anticipatory. The crime has not even been committed yet, but law enforcement can go get a search warrant for 

that crime. 

Mr. FEIN. Well, as I say, if there is a conspiracy and there is suspicion—— 

Mr. GOWDY. Not a conspiracy case. 

Mr. FEIN. No, I do not believe that you should just go out and 

be able to spy on citizens because of somebody’s individual hunch. 

Mr. GOWDY. Not a spy. 

Mr. FEIN. Hey, maybe it will come out. 

Mr. GOWDY. It is not a spy. It is an undercover case where somebody has ordered contraband, and it is going to be delivered to 

their home. So, you go get a search warrant in anticipation of delivery. The crime has not been committed yet. 

Mr. FEIN. No, if the search warrant is based upon probable cause 

to believe you will uncover evidence of crimes, of course you can do 

that. 

Mr. GOWDY. So, again, the strictures of the Fourth Amendment 

do not require a warrant before every arrest, agreed? 

Mr. FEIN. Right. Probable cause is different than a warrant. 

Mr. GOWDY. And they do not require a warrant for all searches, 

agreed? 

Mr. FEIN. Right, but they may require probable cause if—— 

Mr. SENSENBRENNER. The time of the gentleman has expired. 

The gentlewoman from California, Ms. Chu? 

Ms. CHU. Thank you, Mr. Chair. 

I would like to ask Mr. Fein, pertaining to the business records 

provision and gag orders, we know that secrecy is essential when 

conducting any intelligence investigation. But Section 215 orders 

come armed with significant gag orders that are the subject of the 

order from discussing it with anyone. In fact, you have to wait an 

entire year before you can even challenge the gag order in court. 

And uninformed person might not even know that they actually 

challenge it, or how to it. 

Judicial review is the essential mechanism that we arm citizens 

with to ensure that they can protect their rights, but under the PATRIOT Act it is practically impossible to bring these cases to court. 

How can we change the rules? What would be your recommendation with regard to changing the rules surrounding gag orders to 

more adequately provide innocent Americans with an avenue to 

challenge them in court? 

Mr. FEIN. Well, I would authorize them certainly to consult with 

lawyers and to bring court challenges without waiting, because 1 

year all sorts of damage could happen in the interim, because I believe that the PATRIOT Act, again, is premised largely on the idea 

that government generally never gets it wrong, and the burden is 

on the citizen to establish their right to be free from government 

108 

snooping rather than the burden on the government to say, why 

are you crossing the threshold of the citizen. 

And certainly there have been instances where the gag orders 

were challenged. A couple of cases held that they were unconstitutional because they interfered with the due process right to challenge an alleged violation of the law. And I do not believe that 

there is any demonstration. In some of these instances when the 

gag orders were lifted, the FBI just dropped the investigation without showing that we had a terrorism crime that ensued because 

there wasn’t that particular authority to keep the entire matter 

under wraps, if you will. And I think that anyone who receives 

some government issued document should have a right to go into 

court and challenge its legality. That is what the rule of law is 

about. 

Ms. CHU. You mean immediately without having to wait a year. 

Mr. FEIN. Correct. 

Ms. CHU. And also you discussed the fact that subjects are frequently kept in the dark when they are the subject of these investigations because much of the information is requested directly 

from third parties, such as telecommunication companies or Internet service providers. And not only is the subject never told that 

their information is being shared with the government, the third 

parties hardly ever have any incentive to even question the government’s actions. In fact, the legal costs for those third parties are 

a strong barrier, and they find that it is just easier for them to cooperate. 

This essentially allows the government to compile information regarding individuals without notice, providing they claim it as relevant to a national security investigation. 

Should the government be required to give notice to the subjects 

of these investigations? 

Mr. FEIN. Yes. I believe that is true, and I believe in other circumstances, for instance when there are tax investigations or the 

Bank Privacy Act, Congress went out of its way and, by statute, 

did allow in limited circumstances the target of the investigation 

to be notified, even though the target was not specifically the recipient of the subpoena or for the investigative demand. And it 

seems to me more, rather than less, urgent today to do that because so much of the data about any individual in the hands of 

third party Internet service providers. It is hard to suggest that 

you volunteer information on the Internet. It is hard to even run 

or live today without having huge stores of information on the 

Internet. 

And without being cynical, you are exactly right. The incentive 

of the provider of the information is to cooperate. They are regulated by the government. They have huge amounts of contracts. I 

think we discovered that with regard to the cooperation of the telephone companies concerning the President’s terrorist surveillance 

program, and they were eager. We will give you all of our phone 

records even without asking for an attorney general assertion that 

this is constitutionally mandated because they have got $10, $20 

billion contracts with the Defense Department, and you cannot expect them—they are out for their interests—to defend the third 

party target of the investigation. 

109 

Ms. CHU. Mr. Barr, I wanted to ask a question about oversight. 

At the end of last month, the Department of Justice submitted an 

annual report that Congress had detailed a number of times that 

the government want FISA support authority to conduct secret 

electronic surveillance for access to certain business records and 

the number of national security letters. And this report found out 

that the government used these special tools much more often than 

in the past years. For instance, they made 96 applications for access to business records for foreign intelligence purpose, and that 

is five times more than the year before. And the FBI used national 

security letters to get information on over 14,000 different U.S. persons; that is over double the individuals of the year before. 

I am greatly concerned about the increase in government access 

to personal information without the proper checks and balances. 

And we know that there have been times when the FBI has abused 

this—— 

Mr. SENSENBRENNER. The time of the gentleman has expired. 

Gentleman from Virginia, Mr. Goodlatte? 

Mr. GOODLATTE. Thank you, Mr. Chairman. Thank you for holding this hearing, and I want to thank all the panelists for their 

contribution. 

I want to start out, Mr. Rowan, and ask you to comment on what 

I think is the core point that Mr. Barr and Mr. Fein have made 

here. And that is that with regard to the business records provision, that there needs to be illegal activity or a known terrorist, 

that somehow this legislation has broken the link between the 

right to privacy and the requirement that the government show a 

reasonable suspicion before being able to examine these third party 

held business records. I wonder if you would comment on that. 

Mr. ROWAN. Well, I think that, first of all, there is a standard 

in there. A statement of facts needs to be submitted to a judge 

showing that there are reasonable grounds to believe that the—— 

Mr. GOODLATTE. So, to be clear. No one is looking at anybody’s 

business records without a judge first saying they are going to be 

able to do so. Is that correct? 

Mr. ROWAN. Right. And, again, from the perspective of somebody 

who knows how Federal criminal law enforcement investigations 

go, this is an extraordinary bar. The director of the FBI and the 

attorney general or his designate are signing off on these applications. This is such a more stringent mechanism in place—— 

Mr. GOODLATTE. So, in order to look at somebody’s business 

records, the top level people in our law enforcement agencies are 

having to approve this. 

Mr. ROWAN. That is right. These are being treated with the same 

set of protections as a request for electronic surveillance under 

FISA. And there is an application made to an Article III judge sitting on a FISA court who is going to determine whether or not the 

standard has been met. 

The standard is, relatively speaking to electronic surveillance, it 

is lower, but it needs to be lower because—— 

Mr. GOODLATTE. I understand there three categories it has to fit 

into—foreign intelligence investigation—not just a whim, but there 

is an actual investigation that this will be a part of—international 

110 

terrorism or clandestine intelligence activity, all under Section 

501(a). Is that correct? 

Mr. ROWAN. That is correct. 

Mr. GOODLATTE. And then the court that this is brought to has 

to make a number of specific findings before one can look at one’s 

business records. And these are not business records held by the 

individual; these are, as have been discussed here, business records 

held by a third party. 

Mr. ROWAN. That is right, and keep in mind that in addition to 

making those findings, the court is imposing minimization procedures on the government effectively telling the government, if and 

when you get these records, you need to take great care in how you 

handle them. You need to determine whether or not they are in 

fact intelligence information before you disseminate them. And, 

moreover, there is going to be at the end of the year or whenever 

it is appropriate, there is going to be a report made to the Congress 

that is going to list this particular order as one of those that was 

secured during the year. So—— 

Mr. GOODLATTE. Now, let me interrupt you. Mr. Fein has said in 

his testimony that every provision of the PATRIOT Act should be 

repealed unless the government can prove that, ‘‘but for the authority,’’ an act of international terrorism would have succeeded. 

That is a pretty high standard to meet in terms of trying to look 

forward to prevent something like 9/11 happening again, because 

it will not happen exactly the same as it happened previously. 

So, let me ask you. Are you confident that the PATRIOT Act has 

helped to thwart acts of international terrorism since its enactment 

in 2001? 

Mr. ROWAN. Yes, I am. 

Mr. GOODLATTE. And in September 2004 before the Senate Judiciary Committee, former Congressman Barr, my former colleague 

and friend, and hopefully still a current friend, stated that a Federal agent could randomly wiretap an entire apartment complex. Is 

there any legal authority in the PATRIOT Act or in the U.S. Code 

anywhere that would authorize a court to authorize such a wiretap? 

Mr. ROWAN. No. 

Mr. GOODLATTE. And in your experience, have you ever heard of 

such a wiretap taking place? 

Mr. ROWAN. No. 

Mr. GOODLATTE. Sergeant Mullins, in your experience, do your 

Federal law enforcement counterparts exercise care, restraint, and 

discretion in the exercise of PATRIOT Act provisions? 

Mr. MULLINS. Yes. 

Mr. GOODLATTE. Do you want to elaborate? 

Mr. MULLINS. Well, to my understanding, there has been approximately 32 events to which terrorist acts were about to inflicted upon Americans here in this country. And those events were 

prevented as a result of the intelligence that was gathered by Federal authorities. And to date, again, my understanding, there has 

been no Supreme Court decisions, no major court cases that have 

challenged that. 

Mr. GOODLATTE. Thank you. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

111 

The gentleman from Arizona, Mr. Quayle? 

Mr. QUAYLE. Thank you, Mr. Chairman, and thanks to all the 

witnesses for being here today. 

Mr. Fein, I enjoyed your constitutional back and forth with Mr. 

Gowdy, and obviously there is a differing of opinion between the 

constitutionality of the PATRIOT Act. But aside from the constitutionality, we just have to decide, even if we stipulate that it is constitutional, I mean, the Constitution is a set of rights that cannot 

be trampled on by the majority. So, even if you stipulate that it is 

constitutional, you still have to figure out whether it is the right 

thing to do. 

Mr. FEIN. Correct. 

Mr. QUAYLE. And I think that that sometimes is lost in this argument when people continue to say this is constitutional, so it is 

constitutional, so it is okay to do. And I just wanted to say that 

at the beginning because there are some concerns that I have. 

And, Mr. Rowan, one of the things that I want to just get some 

clarification on, when you are talking about the grand jury subpoenas that you had issued, and you said that they were obviously 

issued without any court order and without any judicial oversight, 

was that with a criminal investigation to a crime that already occurred, or was it something that was to try to prevent a crime from 

occurring in the future? 

Mr. ROWAN. Well, it would certainly be in the context of either 

historical criminal activity or ongoing criminal activity. As Mr. 

Fein has pointed out, you know, the conspiracy law is broad, and 

you can be investigating a series of activities, including what you 

think is going to happen in the future, in the context of a grand 

jury investigation because you can identify somewhere in there an 

offense that is going on at the time. 

Mr. QUAYLE. Okay. And one thing that I was just wondering is, 

with the Foreign Intelligence Surveillance Act of 1978, they required specific and articulable facts. Why do you think it is imperative to have that removed from that level of relevancy and actually 

having to be able to state, these are the facts that show the reasonable grounds to go and get the business records of an individual or 

to have a surveillance? 

Mr. ROWAN. Well, I think there are two different things here. I 

think that the factual showing that needs to be made for electronic 

surveillance is higher in FISA than it is for business records, and 

that is appropriate because it is far more intrusive than going after 

third party documents. 

With respect to Section 215, the business records provision, if 

you are going to ask the FBI to do a lengthy factual narrative of 

why they want these third party records, there is a huge disincentive for the FBI to pursue that because it is a time consuming activity. Remember, these orders are written by an agent in Phoenix, 

who then forwards it to his supervisor, who forwards it to Washington, who takes it to the Justice Department. And the Justice 

Department and the FBI headquarters work on it together, and 

then they eventually say, this is good enough that it can be signed 

by the director of the FBI and the attorney general and sent to a 

Federal judge. All that takes time, and they can do it very quickly 

when they have to. And they do it all the time very quickly when 

112 

they need to. But when you are asking the agents to get a lengthy 

factual narrative explaining exactly why you need these records, 

that is a lot of work to do under circumstances where they have, 

you know, potentially they may well decide, you know what? I 

would rather risk exposing my investigation and using a grand jury 

subpoena because I can get this quickly, and I need to move. I cannot wait to go through everything that you are asking me to go 

through to meet the standards of a 215 order. 

That may not be a good thing, that agents make decisions like 

that, but I think that is the real world of conducting national security investigations. 

Mr. QUAYLE. And I understand that, and I understand the importance of being able to balance and give Federal law enforcement 

officers and intelligence officers the ability to thwart attacks 

against the United States. But the one thing that I have been looking and reading about, sometimes when you have laws that are 

vague or overly broad, it opens up to misuse by various agencies, 

not to say that it would actually happen, but it actually has the 

potential to have—when you have vague and overbroad laws. Do 

you think that that is the case in this instance? 

Mr. ROWAN. I understand your general point, but I think that 

when you consider all the informal and formal executive branch 

oversight that exists for these orders, that the chances of abuse are 

far—it is just not very likely, I think, under these circumstances. 

I mean, if you look back at the history of the business orders, it 

took the FBI and the DoJ several years to even use this provision 

because it was new, it was different, it asked them for things they 

had not been required to do in the past. It took a long time for 

agents to get comfortable with this approach. And to be blunt, if 

you raise the bar further in terms of what needs to be provided, 

it is even harder to see this used in the future. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

The Vice Chairman of the Committee, the gentleman from Texas, 

Mr. Gohmert? 

Mr. GOHMERT. Thank you, Mr. Chairman, and do appreciate 

each of you being here and the attention that each of you have 

given to this subject. Obviously there are differing opinions. 

There is no question in my mind, and hopefully in yours, that 

there are people who are war with us. They have declared war on 

the United States and on western civilization. They feel like the 

freedoms we have lead to debauchery and lead to things that can 

be avoided if you have on religious zealot controlling what people 

get to do. I do not want to get there. I believe God gave us freedom 

of choice. 

And yet when you are dealing with people at war with you, are 

often different parts of the Constitution come into play. I have been 

struck that people demand constitutional rights for people who 

have declared war against us that actually are not constitutional 

rights for them at all. The Constitution anticipates that in time of 

war or in time of peace, our own military will not have the constitutional rights. When I was in the Army, I did not have the constitutional rights everybody else did. That is just all part of the 

Constitution. 

113 

I have been concerned about parts of the PATRIOT Act, but felt 

that if it were pertaining to foreign non-U.S. citizens and we had 

some terrific discussions about this back in my first term, ’05 and 

’06. But even then it needed to be properly monitored. 

There were a couple of us that really pushed hard, some of us 

harder than others, but really pushed for having sunsets so we 

could have this discussion down the road. And I was pleased that 

we got them in on anything in the House version so that when it 

got to conference it could still be used. 

But as the last 5 years have unfolded, it seems to be that the 

biggest abuses have not come in 206 or 215, the ‘‘Lone-Wolf’’ provision, but in the national security letters. That is where we had the 

IG report that was just devastating of how abusive that has been. 

And that is not something that is up for renewal, but I have concerns if maybe we ought to slide the NSL authority under the business records provision. I am just uncomfortable after we saw how 

easily abused that could be. 

I think because of some of the presentations some have made in 

public that America is confused about the report of the national security letter abuses, which have not been similarly abused that I 

can find under 215 or 206. 

So, I am curious. I asked in a prior hearing if one proponent 

against NSLs, if he wanted to see them disappear because I was 

entertaining that, and he said, oh, no, I do not think so. 

How would you feel if NSL authority were somehow merged with 

215 to at least give some requirement of court authority before you 

could just send out what basically amounts to a subpoena for 

records and other things? Yes, sir, Mr. Fein? 

Mr. FEIN. Congressman Gohmert, the first thing I would like to 

do before I get specifically that is read from this statement of the 

unanimous consent ex parte Milligan about the idea of war changing the constitutional matrix. And this was, of course, after the existence of the republic had been shaken by the Civil War. 

Mr. GOHMERT. I understand Milligan, and I understand, and perhaps I did not make myself clear. I am not talking so much in war 

there are different things that apply to prisoners of war, enemy 

combatants, and things like that. But I would like to one answer 

to my question. 

Mr. FEIN. I think in one of the prior hearings, it was shown that 

on a couple of occasions when 215 authority was sought and turned 

down because the judge thought it was focused on First Amendment activity, the government then went and got national security 

letters to, in some sense, circumvent the standards of 215. And I 

do not see any reason why the national security letters seem to me 

historically the ones that have been most abused. They have the 

most lax standards administratively. It is not like 215 where you 

have to get a court involved, just the FBI goes out there and say 

it is relevant. That covers about everything—— 

Mr. SENSENBRENNER. The time of the gentleman has expired. 

And the Chair will clarify is that the national security letters 

were never a part of the PATRIOT Act. 

Mr. GOHMERT. Right. 

114 

Mr. SENSENBRENNER. They were originally enacted in 1986 on a 

bill that was sponsored by Senator Leahy of Vermont and Representative Kastenmeier of Wisconsin. 

The Chair now recognizes the gentleman from George, Mr. Johnson? 

Mr. JOHNSON. Thank you, Mr. Chairman. 

Mr. Bob Barr, we have seen you many times here testifying on 

behalf of liberty, Fourth Amendment issues particularly. And you 

know well this area, having served as a U.S. congressman on this 

Committee for a number of years, and then prior to that as a U.S. 

attorney down in the northern district of Georgia, where, in my 

opinion, you exercised prosecutorial authority in a nonpartisan 

way. And I appreciate your service to the Nation. 

I have just a few questions that I would like to ask you. Does 

a relevance standard impose any real check on the government’s 

ability to secretly collect information about American citizens using 

Section 215? And cannot a good lawyer almost always come up 

with a reason why information is relevant? 

Mr. BARR. The standard that you refer to is virtually no standard 

at all. To come before a judge or any other authority and say we 

need this and you need to issue an order allowing us to access this 

information because it is relevant to an investigation that we are 

undertaking, in effect, means absolutely nothing. It is no standard, 

and it is particularly problematic here because the relevance standard, so to speak, is being used to access information or may be used 

to access information on individuals with no connection whatsoever 

to a terrorist, a suspected terrorist, or even an associate of a known 

terrorist. 

Mr. JOHNSON. Well, let me ask you this question. If a terrorist 

suspect—and before I do that, though, I must point out the fact 

that as a congressman, you served as a Republican, and now I have 

not heard you renounce your political leanings, so I assume you are 

still a Republican with some libertarian leanings. But I will 

not—— 

Mr. BAR. Probably a little more than that, but I am here today 

in a nonpartisan capacity. 

Mr. JOHNSON. Well, I do appreciate that, sir. 

If a terrorist suspect used a U.S. online dating site and viewed 

your profile or sent you a message, could the government collect 

your online dating history or other records about you? And would 

not such information be relevant to the investigation and possibly 

even presumptively relevant since it involved contact with a foreign 

power? 

Mr. BARR. I would like to make clear for the record that the congressman is referring to a hypothetical, not a real situation. 

[Laughter.] 

Mr. JOHNSON. Well, I mean, many people use dating services 

these days. [Laughter.] 

Mr. BARR. With that understanding, I think probably in that 

case, there would be a justification for accessing those records because there would be a link, certainly one that could be dispelled, 

but certainly a link that would be apparent. You have a known or 

suspected terrorist communicating with an individual, and that individual may have no connection whatsoever and may be entirely 

115 

*The submissions referred to are located in the Appendix of this hearing record. 

innocent. But I think in that situation, there probably would be an 

appropriate justification for the government to look at those 

records. 

Mr. JOHNSON. And what if there was no message at all and there 

was just a viewing of the records? 

Mr. BARR. There was just what? 

Mr. JOHNSON. A viewing of the records. 

Mr. BARR. Well, that would establish nothing. If an individual 

just goes online to a dating service, as I understand it—never having used one—they can look at virtually an unlimited number of 

persons with no connection whatsoever. So, in that situation, there 

would seem to be no nexus whatsoever that would provide a justification for the government to then look at that other individual 

and their data. 

Mr. JOHNSON. Well, that is kind of using a reasonable standard, 

but I guess someone could eke out a relevancy purpose. 

Mr. SENSENBRENNER. The gentleman’s time has expired, and the 

Chair will observe that the use of dating services, either hypothetically or actually, is not within the purview of this hearing. 

So, with that note, I would like to thank all of the witnesses for 

their testimony today. And without objection, all Members will 

have 5 legislative days to submit to the Chair additional written 

questions for the witnesses, which we will forward and ask the witnesses to respond as promptly as they can so that their answers 

may be made part of the record. 

Mr. SENSENBRENNER. Without objection, all Members will have 5 

legislative days to submit any additional materials for inclusion in 

the record. 

Also without objection, letters from the Federal Law Enforcement 

Officers Association, the Sergeants Benevolent Association of New 

York City, the Society of Former Special Agents of the FBI, the FBI 

Agents Association, Keep America Safe, the National Association of 

Assistant United States Attorneys, and the National Fraternal 

Order of Police in support of the reauthorization of the PATRIOT 

Act, will be submitted to the record.* 

And without objection those three requests are so ordered. 

The gentleman—— 

Mr. BARR. Mr. Chairman, I may have missed the beginning, but 

might I ask permission to have my entire printed statement made 

a part of the record? 

Mr. SENSENBRENNER. Well, just to make clear, without objection, 

the printed statements of all four of the witnesses will be made 

part of the record at the beginning of their testimony. 

And if there is no further business to be brought before the Subcommittee, the Subcommittee stands adjourned. 

[Whereupon, at 11:53 a.m., the Subcommittee was adjourned.] 

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