S. HRG. 109–168

OVERSIGHT OF THE USA PATRIOT ACT

HEARINGS

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

APRIL 5, AND MAY 10, 2005

Serial No. J–109–10

Printed for the use of the Committee on the Judiciary

(

OVERSIGHT OF THE USA PATRIOT ACT 

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24–293 PDF 2005

S. HRG. 109–168

OVERSIGHT OF THE USA PATRIOT ACT

HEARINGS

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

APRIL 5, AND MAY 10, 2005

Serial No. J–109–10

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

DAVID BROG, Staff Director 

MICHAEL O’NEILL, Chief Counsel 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III)

C O N T E N T S 

TUESDAY, APRIL 5, 2005

STATEMENTS OF COMMITTEE MEMBERS 

Page

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois .................... 37

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin, prepared statement ................................................................................................... 247

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa, prepared 

statement .............................................................................................................. 280

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 15

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

prepared statement .......................................................................................... 283

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 1

WITNESSES 

Gonzales, Alberto R., Attorney General, Department of Justice, Washington, 

D.C. ........................................................................................................................ 5

Mueller, Robert S., III, Director, Federal Bureau of Investigation, Department 

of Justice, Washington, D.C. ............................................................................... 9

QUESTIONS AND ANSWERS 

Responses of Alberto R. Gonzales to questions submitted by Senators Specter, 

Kennedy, Durbin, Grassley, Biden, Feingold, Kyl, and Leahy (June 29, 

2005) ...................................................................................................................... 59

Responses of Alberto R. Gonzales to questions submitted by Senators Specter, 

Kennedy, Biden, Feingold, Kyl, and Leahy (October 20, 2005) ........................ 114

Responses of Robert S. Mueller III to questions submitted by Senators Grassley, Kyl, Leahy and Feingold .............................................................................. 192

SUBMISSIONS FOR THE RECORD 

Gonzales, Alberto R., Attorney General, Department of Justice, Washington, 

D.C., prepared statement .................................................................................... 249

Moschella, William E., Assistant Attorney General: ............................................

report on applications to Foreign Intelligence Surveillance Court, April 

1, 2005 ............................................................................................................ 287

report on translation services, April 1, 2005 .................................................. 289

Mueller, Robert S., III, Director, Federal Bureau of Investigation, Department 

of Justice, Washington, D.C., prepared statement ............................................ 304

TUESDAY, MAY 10, 2005

STATEMENTS OF COMMITTEE MEMBERS 

Page

Biden, Hon. Joseph R., Jr., A U.S. Senator from the State of Delaware ............ 331

Cornyn, Hon. John, a U.S. Senator from the State of Texas ............................... 321

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois .................... 322

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 316

prepared statement .......................................................................................... 441

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 315

Page

IV

WITNESSES 

Barr, Bob, former Representative in Congress from the State of Georgia ......... 333

Cole, David, Professor of Law, Georgetown University Law Center, Washington, D.C. ........................................................................................................... 334

Collins, Daniel P., Munger, Tolles and Olsen, LLP, Los Angeles, California ..... 336

Craig, Hon. Larry E., a U.S. Senator from the State of Idaho ............................ 318

Dempsey, James X., Executive Director, Center for Democracy & Technology, 

Washington, D.C. ................................................................................................. 338

McCarthy, Andrew C., Senior Fellow, Foundation for the Defense of Democracies, Washington, D.C. ..................................................................................... 340

Spaulding, Suzanne E., Managing Director, The Harbour Group, LLC, Washington, D.C. ........................................................................................................... 342

QUESTIONS AND ANSWERS 

Response of Dan Collins to a question submitted by Senator Biden .................. 361

Response of Suzanne E. Spaulding to a question submitted by Senator Leahy 363

SUBMISSIONS FOR THE RECORD 

American Booksellers Association, American Library Association, Association 

of American Publishers, PEN American Center, Washington, D.C., joint 

letter ...................................................................................................................... 365

American Jewish Committee, Richard T. Foltin, Legislative Director and 

Counsel, Washington, D.C., letter ...................................................................... 367

Ashcroft, John, former Attorney General, Department of Justice, Washington, 

D.C., letter ............................................................................................................ 369

Barr, Bob, former Representative of Congress from the State of Georgia, 

prepared statement and letter ............................................................................ 378

Cole, David, Professor of Law, Georgetown University Law Center, Washington, D.C., prepared statement ....................................................................... 389

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

prepared statement .............................................................................................. 406

Dempsey, James X., Executive Director, Center for Democracy & Technology, 

Washington, D.C., prepared statement .............................................................. 426

League of Women Voters, Kay J. Maxwell, President, Washington, D.C., 

letter ...................................................................................................................... 440

McCarthy, Andrew C., Senior Fellow, Foundation for the Defense of Democracies, Washington, D.C., prepared statement .................................................. 444

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

Washington, D.C.: 

letter, May 3, 2005 ........................................................................................... 479

letter, May 6, 2005 ........................................................................................... 486

Salazar, Hon. Ken, a U.S. Senator from the State of Colorado, prepared 

statement .............................................................................................................. 489

Senate Bill of Rights Caucus, statement of principles and attachment .............. 491

Spaulding, Suzanne E., Managing Director, The Harbour Group, LLC, Washington, D.C., prepared statement ....................................................................... 493

(1)

OVERSIGHT OF THE USA PATRIOT ACT 

TUESDAY, APRIL 5, 2005 

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

The Committee met, pursuant to notice, at 9:30 a.m., in Room 

SD–216, Hart Senate Office Building, Hon. Arlen Specter, Chairman of the Committee, presiding. 

Present: Senators Specter, Hatch, Kyl, Sessions, Cornyn, Coburn, 

Leahy, Kennedy, Feinstein, Feingold, and Schumer. 

OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. 

SENATOR FROM THE STATE OF PENNSYLVANIA 

Chairman SPECTER. Ladies and gentlemen, the hour of 9:30 having arrived, the Senate Judiciary Committee will not proceed to 

this hearing on the PATRIOT Act, and the Committee welcomes 

Attorney General Alberto Gonzales for his first appearance before 

this Committee after his confirmation and, similarly, we welcome 

FBI Director Robert Mueller to take up this very important subject. 

I have had a considerable number of comments about my health, 

some on the way walking in this morning, so just a brief comment. 

I have had about a third of the treatments. I am doing fine. The 

doctor predicts a full recovery. I have been on the job. In the last 

2 weeks during the recess, I could not travel a road and spent most 

of the time here in Washington on the job. The most noticeable effect has been the involuntary new hairstyling. 

Senator LEAHY. I think it looks great. 

Chairman SPECTER. Well, Patrick, we are practically tied at this 

point. 

[Laughter.] 

Chairman SPECTER. But I am assured that within a few months 

I will be back to a head of hair comparable to Attorney General 

Gonzales, maybe not quite comparable, but close. 

The hearing on the PATRIOT Act poses very fundamental questions of security for our country, with appropriate concern for constitutional and civil rights. There is no doubt that the fundamental 

responsibility of Government is to protect its citizens, and in the 

United States, with our deep tradition for civil rights and constitutional law, that concern for security has to be balanced by new regard for civil rights. 

The report, which was just issued last week by the Commission 

on Intelligence Capabilities of the United States regarding weapons 

of mass destruction, contains some very disquieting conclusions 

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which bear directly upon the efficacy of the PATRIOT Act and our 

overall efforts as security. 

Without going into the conclusions in any depth at this time, a 

couple point up the basic concern where the Commission reported 

that the clashes between the various intelligence agencies, concentrating specifically on the CIA and FBI, exist not only in regards 

to which agency gets credit for intelligence reports, but also in the 

field where lives are at stake. The Commission went on further to 

say, ‘‘The failure of the CIA and FBI to cooperate and share information adequately on cases could potentially create a gap in coverage of these threats like the one on September 11th, which the 

attack plotters were able to exploit.’’ 

The Committee will be engaging in comprehensive oversight really on the model that the Committee used on Ruby Ridge about a 

decade ago. A team has already met with Director Mueller on the 

issue of coordination, set up where I contacted him, personally, and 

we met with representatives of our staffs on February the 1st. The 

report which Director Mueller gave was significantly more optimistic with respect to the coordination than as has been the report 

of the Commission last week. That is something that we will want 

to consider during the course of these hearings but, as noted, the 

principal focus of the hearings is on the PATRIOT Act itself. 

In my view, there are very, very important provisions in the PATRIOT Act which need to be reauthorized, not all perhaps, but 

some very important provisions. The wall separating the Foreign 

Intelligence Surveillance Act is down and has been very, very useful in law enforcement so that evidence obtained pursuant to the 

Foreign Intelligence Surveillance Act warrant can be used in a 

criminal proceeding. The provisions on nationwide search warrants 

are certainly necessary. The material support for terrorist prohibition is a very important provision. 

There have been questions raised by both the right and the left 

on the political spectrum about some of the other provisions, as we 

all know, with respect to the authority to seize tangible things. The 

illustration of that has been the library books, so to speak, and we 

will hear from the Attorney General and the Director on this subject. 

The question arises, in my mind, as to whether the traditional 

standards for probable cause ought not to be used in obtaining materials of that sort, a concern that I expressed to Attorney General 

Gonzales during his confirmation hearings and I have expressed 

also to Director Mueller. The issues of the so-called sneak-and-peek 

provisions, where there are five exceptions, and one of the exceptions is so broad that it could be a coverall to not have a limit of 

time as to when the subject of the sneak-and-peek is informed. 

That is something which we will take a look at. 

The roving wiretaps provision has also been subject to certain 

challenges to the identity of the person, whether a description is 

sufficient and how many technical means can be used to obtain. 

Those are all issues which we will look into during the course of 

this hearing. 

We have asked the Attorney General and Director to limit their 

opening remarks to 10 minutes, with their full statements made a 

part of the record. We will work through until 1 o’clock or a conVerDate 0ct 09 2002 12:04 Nov 04, 2005 Jkt 024293 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\24293.TXT SJUD4 PsN: CMORC
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venient break point about that time, and the Attorney General and 

the Director have already been asked to be available in the afternoon because I think we will have a large attendance at this session with questions. We will have 7-minute rounds of questions. I 

am right up to 7 minutes now, and I want to yield, at this point, 

to my distinguished ranking member, Senator Leahy. 

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

FROM THE STATE OF VERMONT 

Senator LEAHY. Thank you very much, Mr. Chairman. I do feel 

this is an extremely important meeting, and it is good to have oversight. I was delighted, also, to hear your comments about going 

back to the kind of oversight we did with Ruby Ridge. I agree with 

you that that was an example of how oversight can and should be 

done, and we should go back to that. 

On a September morning, as we all know, three-and-a-half years 

ago nearly 3,000 lives were lost on American soil. Our lives, our 

lives as Americans, changed instantly. In the aftermath of the 9/

11 attacks Congress moved quickly—some have said too quickly—

to give Federal authority substantial new powers to investigate and 

prosecute terrorism. The USA PATRIOT Act was signed into law 

just 6 weeks later. 

Some of us sitting here today contributed to the PATRIOT Act. 

We worked together in a bipartisan manner, and with common resolve to craft a bill that we hoped would make us safer as a Nation. 

Freedom and security are always in tension in our society, but we 

tried our best to strike the right balance. Now it is time to return 

to this discussion to assess what aspects we got right and what 

modifications need to be made. 

I negotiated many of the provisions of the PATRIOT Act and am 

gratified to have been able to add several checks and balances that 

were not in the initial proposal. The White House broke its word 

on some agreements that we had mutually reached to strike a better balance on some of the PATRIOT Act’s provisions. It is also 

true that additional checks and balances that I and others sought, 

had the White House agreed to them, would have yielded the same 

benefits to our law enforcement efforts, but with greater accountability. In the final negotiating session, former House Majority 

Leader Dick Armey and I joined together to insist that we add a 

sunset for certain governmental powers that have great potential 

to affect the civil liberties of the American people. That is why we 

are here today because that sunset provision ensured that we 

would revisit the PATRIOT Act and shine some sunlight on how 

it has been implemented. 

Before we rush to renew any controversial powers created by the 

PATRIOT Act, we need to understand how these powers have been 

used and whether they have been effective. A few weeks ago, we 

celebrated the first national Sunshine Week with a hearing on 

open Government and bipartisan calls for accountability. We 

should do the same in our oversight. 

We should bear in mind the 9/11 Commission’s counsel about the 

PATRIOT Act. They wrote, ‘‘The burden of proof for retaining a 

particular governmental power should be on the Executive to explain, A, that the power actually materially enhances security, and, 

4

B, that there is adequate supervision of the Executive’s use of the 

powers to ensure protection of civil liberties.’’ 

We are in a new Congress with a new Chairman of this Committee. Chairman Specter has a distinguished record as a steadfast 

advocate and practitioner of meaningful oversight—of meaningful 

oversight. We have before us a new Attorney General who has 

pledged to work with us on a number of issues, including the PATRIOT Act. The American people deserve to be represented by a 

Congress that takes its oversight responsibilities seriously. The 

breakdown of cooperation following the passage of the PATRIOT 

Act has fostered distrust. We can change that by working together 

to achieve the right balance in our Antiterrorism Act by allowing 

the appropriate amount of sunshine to light what we are doing. 

We have heard over and over again there have been no abuses 

as a result of the PATRIOT Act, but it has been difficult, if not impossible, to verify that claim when some of the most controversial 

surveillance powers in the act operated under a cloak of secrecy. 

We know the Government is using its surveillance powers under 

the Foreign Intelligence Surveillance Act more than ever, but everything else about FISA is secret. This difficulty of assessing the 

impact on civil liberties has been exacerbated greatly by the administration’s obstruction of legitimate oversight. 

Now, whether or not there have been abuses under the PATRIOT 

Act, the unchecked growth of secret surveillance powers and technology, with no real oversight by the Congress to the courts, has 

resulted in clear abuses by the executive branch. We have seen secret arrests and secret hearings of hundreds of people for the first 

time in U.S. history; detentions without charges and denial of access to counsel; misapplication of the material witness statute as 

a sort of general prevention detention law; discriminatory targeting 

of Arabs and Muslims; selective enforcement—selective enforcement—of the immigration laws; and the documented mistreatment 

of aliens held on immigration charges. 

These abuses harm our national security as well as civil liberties. 

They serve as recruiting posters for terrorists, intimidate American 

communities from cooperating with law enforcement agencies, and 

when they misuse limited antiterrorism resources, they make it 

more likely real terrorists are going to escape detection. 

Beyond this, the administration has used brutal and degrading 

interrogation techniques against detainees in Afghanistan, Iraq, 

and Guantanamo Bay. Those run counter to past American military traditions. Information about these disgraceful acts continue 

to trickle out in large part only because of a persistent press and 

the use of FOIA not by the oversight this Congress should do. 

In yet another example of abuse, recent press reports provide disturbing details about how the administration embraced the use of 

extraordinary rendition after the 9/11 attacks. Several press reports detail the CIA’s use of jets to secretly transfer detainees to 

places around the world where they were going to be tortured. 

In defending the administration’s rendition policy, the President 

said, in his March 17 press conference, that ‘‘we seek assurances 

that nobody will be tortured when we render a person back to their 

home country.’’ That statement came only 10 days after Attorney 

General Gonzales acknowledged that we cannot fully control what 

5

happens to detainees transferred to other Nations. He added that 

he does not know whether these countries have always complied 

with their promises. 

There are always going to be scandals and tragedies in a Nation’s history. What makes America special is that we do not hide 

from our mistakes; we investigate them, we learn from them; and 

we make sure they do not happen again. When necessary, we 

change our laws to reflect the lessons we have learned. The spirit 

of openness and accountability are what bring us here today to reconsider portions of the PATRIOT Act. 

Mr. Chairman, I applaud you for doing this. The kind of oversight that you have is similar to what you did in Ruby Ridge, and 

we are going to be doing far, far better for the country, for the 

Committee, and for the Senate. 

Chairman SPECTER. Thank you very much, Senator Leahy. 

Attorney General Gonzales and Director Mueller, would you rise, 

please. 

Do each of you solemnly swear that the testimony you will 

present before the Senate Judiciary Committee will be the truth, 

the whole truth and nothing but the truth so help you God? 

Attorney General GONZALES. I do. 

Director MUELLER. I do. 

Chairman SPECTER. Attorney General Gonzales, we again welcome you here for the first of the oversight hearings. We note some 

of your recent comments showing some willingness to consider 

some modifications. They have been described in the media as technical, but we welcome that approach, and we look forward to your 

testimony. 

The floor is yours. 

STATEMENT OF ALBERTO R. GONZALES, ATTORNEY GENERAL, 

DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Attorney General GONZALES. Thank you, Mr. Chairman. Chairman Specter, Senator Leahy and members of the Committee, I am 

pleased to be here with Director Mueller to discuss an issue relating to the security of the American people. 

Following the attacks of September 11th, 2001, the administration and Congress did come together to prevent such a tragedy 

from happening again. One result of our collaboration was the USA 

PATRIOT Act, which was passed by Congress with overwhelming 

bipartisan support. Since then, the Act has been integral to the 

Government’s prosecution of the war on terrorism. Thanks, in part, 

to the act, we have dismantled terrorist cells, disrupted terrorist 

plots and captured terrorists before they could strike. 

Many of the most important authorities in the Act are scheduled 

to expire on December 31, 2005. It is important that these authorities remain available, in my judgment. Al Qaeda and other terrorist groups still pose a grave threat to the security of the American people, and now is not the time to relinquish some of our most 

effective tools in this fight. 

As Congress considers whether to renew these provisions, I am 

open to suggestions for clarifying and strengthening the act. I look 

forward to meeting with those, both inside and outside of Congress, 

who have expressed concerns about the act, but let me be clear 

6

that I will not support any proposal that would undermine our ability to combat terrorism effectively. 

All of us have the same objective, ensuring the security of the 

American people, while preserving our civil liberties. I, therefore, 

hope that we will consider reauthorization in a calm and thoughtful manner. Our dialogue should be based on facts rather than exaggeration. Because I believe that this discussion must be conducted in an open and honest fashion, I will begin my testimony 

today by presenting this Committee with new information recently 

declassified about the use of certain PATRIOT Act provisions. 

Of the 16 provisions scheduled to sunset, some members of this 

Committee had raised the most concern about Sections 206 and 

215. Section 215 granted national security investigators authority 

to seek a court order requiring the production of records relevant 

to their investigation. Just as prosecutors use grand jury subpoenas as the building blocks of criminal investigations, investigators in international terrorism and espionage cases must have the 

ability, with appropriate safeguards, to request production of evidence that can be essential to the success of an intelligence investigation. 

To be clear, a Section 215 order, like a subpoena, does not authorize Government investigators to enter anyone’s home or search 

anyone’s property. It is merely a request for information. A Federal 

judge must approve every request for records under Section 215, 

and the FISA Court has granted the Department’s request for a 

215 order 35 times, as of March 30, 2005. 

Although prosecutors have long been able to obtain library 

records in connection with a criminal investigation, I recognize that 

Section 215 may be the act’s most controversial provision principally because of fears concerning the theoretical use of the provision to obtain library records. However, I can report the Department has not sought a Section 215 order to obtain library or bookstore records, medical records or gun sale records; rather, the provision, to date, has been used only to obtain driver’s license 

records, public accommodation records, apartment leasing records, 

credit card records and subscriber information such as names and 

addresses for telephone numbers captured through court-authorized pen register devices. 

Going forward, the Department anticipates that our use of Section 215 will increase as we continue to use the provision to obtain 

subscriber information for telephone numbers captured through 

court-authorized pen register devices just as such information is 

routinely obtained in criminal investigations. 

Although some of the concerns expressed about Section 215 have 

been based on inaccurate fears about its use, other criticisms have 

apparently been based on possible ambiguity in the law. The Department has already stated in litigation that the recipient of a 

Section 215 order may consult with his attorney and may challenge 

that order in Court. The Department has also stated that the Government may seek, and a court may require, only the production 

of records that are relevant to a national security investigation, a 

standard similar to the relevant standard that applies to grand 

jury subpoenas in criminal cases. 

7

The text of Section 215, however, is not as clear as it could be 

in these respects. The Department, therefore, is willing to support 

amendments to Section 215 to clarify these points. We cannot, however, support elevating the relevance standard under Section 215 

to probable cause. According to our lawyers and agents, raising the 

standard would render Section 215 a dead letter. As we all know, 

probable cause is a standard that law enforcement must meet to 

justify an arrest. It should not be applied to preliminary investigative tools such as grand jury subpoenas or Section 215 orders 

which are used to determine whether more intrusive investigative 

techniques requiring probable cause, such as electronic surveillance, are justified. 

Section 206, also, provides terrorism investigators with an authority long possessed by criminal investigators. In 1986, Congress 

authorized the use of multi-point or roving wiretaps in criminal investigations. Before the PATRIOT Act, however, these orders were 

not available for national security investigations under FISA. 

Therefore, when international terrorists or spies switch telephones, 

investigators had to return to the FISA Court for a new surveillance order and risk missing key conversations. In a post-9/11 

world, we cannot take that risk. 

Section 206 fixed this problem by authorizing multi-point surveillance of international terrorists or a spy when a judge finds that 

the target may take action to thwart surveillance. As of March 

30th, this provision had been used 49 times and has been effective 

in monitoring international terrorists and spies. 

Another important FISA-related PATRIOT Act provision is Section 207. Prior to the act, the Justice Department invested considerable time returning to court to renew existing orders granted by 

the FISA Court. Section 207 substantially reduced this investment 

of time by increasing the maximum time duration for FISA electronic surveillance and physical search orders. 

The Department estimates that Section 207 has saved nearly 

60,000 attorney hours. In other words, it has saved 30 lawyers a 

year’s work, and this estimate does not account for time saved by 

FBI agents, administrative staff and the Judiciary. Department 

personnel were able to spend that time pursuing other investigations and oversight matters. 

Given Section 207’s success, I am, today, proposing additional 

amendments to increase the efficiency of the FISA process, copies 

of which will be presented to this Committee today. Had these proposals been included in the PATRIOT Act, the Department estimates that an additional 25,000 attorney hours would have been 

saved in the interim. Most of these ideas were specifically endorsed 

in the recent report of the WMD Commission, which said that the 

amendments would allow the Department both to focus their attention where it is most needed and to maintain the current level of 

oversight paid to cases implicating the civil liberties of Americans. 

Finally, I would like to touch on another provision that has generated significant discussion—Section 213—which is not scheduled 

to sunset. It established a nationwide standard for issuing delayednotice search warrants which have been used by law enforcement 

in criminal investigations and approved by courts for decades, as 

we all know. 

8

Under Section 213, law enforcement must always, always provide 

notice to a person whose property is searched. A judge may allow 

that notice to be temporarily delayed in a few circumstances, but 

that person will always receive notification. The Department uses 

this tool only where necessary. For instance, from enactment of the 

PATRIOT Act through January 31, 2005, the Department used 

Section 213 to request approximately 155 delayed-notice search 

warrants which have been issued in terrorism, drug, murder and 

other criminal investigations. We estimate that this number represents less than one-fifth of 1 percent of all search warrants obtained by the Department during this time. In other words, in more 

than 499 of 500 cases, the Department provides immediate notice 

of a search. In appropriate cases, however, delayed-notice search 

warrants are necessary because if terrorists or other criminals are 

prematurely tipped off that they are under investigation, they may 

destroy evidence, harm witnesses or flee prosecution. 

I hope that the information I have presented will demystify these 

essential national security tools, eliminate some of the confusion 

surrounding their use and enrich the debate about the Department’s counterterrorism efforts. The tools I have discussed today 

are critical in my judgment to our Nation’s success in the war 

against terrorism. I am, therefore, committed to providing the information that this Committee and the American public need to 

thoroughly evaluate the PATRIOT Act. The Act has a proven 

record of success in protecting the security of the American people, 

and we cannot afford to allow its most important provisions to sunset. 

I look forward to working with the Committee closely in the 

weeks ahead, listening to your concerns and joining together again 

to protect the security of the American people. Thank you, Mr. 

Chairman. 

[The prepared statement of Attorney General Gonzales appears 

as a submission for the record.] 

Chairman SPECTER. Thank you very much, Attorney General 

Gonzales. 

Senator LEAHY. Mr. Chairman? 

Chairman SPECTER. Senator Leahy? 

Senator LEAHY. I just would ask consent that the Attorney General has submitted testimony, which we all received, and testimony 

actually delivered here today both be in the record because there 

are some substantial differences. 

Senator LEAHY. Without objection, the written testimony submitted will be made a part of the record. I think I noted that earlier, but, in any event, they will be made a part of the record. 

We now turn to the Director of the FBI. We welcome you, again, 

Director Mueller. Thank you for your courtesies of the recent meeting which you and I had with our respective staffs, and we will be 

pursuing that, among other matters. 

Now, we look forward to your testimony. 

9

STATEMENT OF ROBERT S. MUELLER III, DIRECTOR, FEDERAL 

BUREAU OF INVESTIGATION, DEPARTMENT OF JUSTICE, 

WASHINGTON, D.C. 

Director MUELLER. Thank you, and good morning, Mr. Chairman. 

Good morning, Senator Leahy and members of the Committee. I 

am pleased to be here today with the Attorney General to talk 

about the PATRIOT Act and how it has assisted the FBI with its 

efforts on the war on terror. 

The PATRIOT Act has, indeed, changed the way that we in the 

FBI operate, and it has assisted us, in many ways, in our 

counterterrorism successes. My formal statement was submitted for 

the record, and it focuses primarily on the 16 provisions that are 

scheduled to sunset at the end of this year. While I firmly believe 

it is very important to our national security that these provisions 

be renewed, I want to emphasize this morning the importance of 

the information-sharing provisions to the war on terror. 

Mr. Chairman, the information-sharing provisions are consistently identified by FBI field offices as the most important provisions in the PATRIOT Act. The ability to share crucial information 

has significantly altered the landscape for conducting terrorism investigations, allowing for a more coordinated and effective approach. Specifically, our field offices note that these provisions enable case agents to involve other agencies in investigations resulting in a style of teamwork that, first of all, enables us to be more 

effective and responsive in our investigative efforts, improves the 

utilization of our resources, allows for follow-up investigations by 

other agencies—for instance, when the subject of the investigation 

leaves the United States—and it, also, helps prevent the compromise of foreign intelligence investigations. 

Even though the law prior to the PATRIOT Act provided for 

some exchange of information, the law was complex and, as a result, agents often erred on the side of caution and refrained from 

sharing information. The PATRIOT Act’s information-sharing provisions, Sections 203 and 218, eliminated that hesitation and allows agents to more openly work with other Government entities, 

resulting in a much stronger team approach. This approach is necessary in order to effectively prevent and detect the complex web 

of terrorist activity. 

FBI field offices report enhanced liaison with State, local, tribal 

and, as important, other Federal agencies, including the intelligence agencies across the country. Our legal attache offices overseas report improved relationships with other intelligence agencies 

operating overseas. 

Prior to the PATRIOT Act, Federal law was interpreted to prohibit criminal investigators from disclosing criminal wiretap or 

grand jury information to counterparts working on intelligence investigations. 

Sections 203(a) and (b) of the PATRIOT Act eliminated these 

barriers to information sharing, allowing for routine sharing of information derived from these important criminal tools. 

Section 203(d) ensures that information developed through law 

enforcement methods other than grand jury testimony or criminal 

wiretaps can also be shared with intelligence partners at the Federal, State and local levels, as well as with our partners overseas. 

10

Section 218 of the PATRIOT Act was the first step in dismantling the wall between criminal and intelligence investigators. It 

eliminates the primary purpose requirement under FISA and replaces it with a significant purpose test. FBI agents working on intelligence and counterintelligence matters now have greater latitude to consult criminal investigators or prosecutors without putting their investigations at risk. 

Prosecutors are now involved at the earliest stages of international terrorism investigations, and prosecutors are often co-located with the Joint Terrorism Task Forces and are able to provide 

immediate input regarding the use of criminal charges to stop terrorist activity, including the prevention of terrorist attacks. 

Mr. Chairman, if these information-sharing provisions are allowed to sunset, the element of uncertainty and confusion that existed in the past will be reintroduced. Agents will again hesitate 

and spend precious time seeking clarification of complicated information-sharing restrictions. This hesitation will lead to less teamwork, less efficiency and, ultimately, loss of effectiveness in the war 

on terror. 

Experience has taught the FBI that there are no clear dividing 

lines that distinguish criminal, terrorist and foreign intelligence activity. Criminal, terrorist and foreign intelligence organizations and 

their activities are often interrelated or interdependent. FBI files 

contain many examples of investigations where information sharing between counterterrorism, counterintelligence and criminal intelligence investigations was essential to our ability to protect the 

United States from terrorist or intelligence activity and criminal 

activity. 

For example, the FBI investigated a group of Pakistan-based individuals who were participating in arms trafficking, the production and distribution of multiton quantities of hashish and heroin 

and participate in the discussion of an exchange of a large quantity 

of drugs for four stinger anti-aircraft missiles to be used by al 

Qaeda in Afghanistan. The operation, thanks to the ability to share 

information, resulted in the arrest, indictment and subsequent extradition of the subjects from Hong Kong to San Diego to face 

charges of providing material support to al Qaeda, as well as 

charges relating to their drug activities. 

In yet another example in the aftermath of September 11th, a reliable intelligence source identified a naturalized United States citizen from the Middle East as being a leader among a group of Islamic extremists operating in the United States. The subject’s extremist views, affiliations with other terrorist subjects and heavy 

involvement in the stock market increased the potential that he 

was a possible financier and material supporter of terrorist activities. 

Early in the criminal investigation, it was confirmed that the 

subject had developed a complex scheme to defraud multiple brokerage firms of large amounts of money. A close interaction between the criminal and intelligence cases was critical to the successful arrest of the subject before he was able to leave the country, 

and it ultimately resulted in his guilty plea to criminal charges. 

The increased coordination and information sharing between intelligence and law enforcement agents facilitated by the PATRIOT 

11

Act has allowed the FBI to approach cases such as these as a single integrated investigation that allows us to see the full picture 

not separate pieces of a criminal case, separate pieces of an intelligence case, separate pieces of information. It allows us to work together to successfully bring together various pieces of information 

regardless of whether it is in the field of counterintelligence, terrorism or criminal and enables us to depend on that free flow of 

information between respective investigations, investigators, and 

analysts to successfully perform our responsibilities. 

Mr. Chairman, critics of the PATRIOT Act’s information-sharing 

provisions have suggested that they lack sufficient safeguards or 

that they can be used to circumvent constitutional safeguards by 

conducting a search or wiretap for the purpose of investigating a 

crime without demonstrating probable cause that a crime has been 

committed. These concerns ignore the considerable safeguards and 

limitations that are firmly in place. 

With respect to changes in the wiretap statute, Section 203(b) 

only allows for the sharing of a certain limited class of information 

gathered under Title III, such as information relating to a serious 

national security matter. In addition, the Title III statute imposes 

substantial burdens on law enforcement and judicial approval prior 

to the initiation of the wiretap. Section 203(b) does not reduce 

these requirements. It simply permits the appropriate sharing of 

information after it is collected under court order. 

Mr. Chairman and members of the Committee, the provisions of 

the PATRIOT Act that I have discussed today are crucial to our 

present and future success in the global war on terrorism. By responsibly using the statute provided by Congress, the FBI has 

made substantial progress in our ability to proactively investigate, 

and prevent terrorism and to protect lives, while, at the same time 

and as important, protecting civil liberties. 

In renewing these provisions scheduled to sunset at the end of 

this year, Congress will ensure that the FBI will continue to have 

the tools we need to combat the very real threat to America posed 

by terrorists and their supporters. 

Mr. Chairman, thank you, again, for the opportunity to appear 

before you today, and I, too, am happy to answer any questions you 

might have. 

[The prepared statement of Director Mueller appears as a submission for the record.] 

Chairman SPECTER. Thank you very much, Director Mueller. 

We will now proceed with the 7-minute rounds in order of arrival, which is the custom of the Committee. 

Attorney General Gonzales, I am pleased to see some of the 

modifications which you have suggested would be acceptable to the 

Department of Justice with respect to the recipient may consult an 

attorney, the recipient may challenge in court not only documents 

relevant to national security investigations would be involved. 

I note that on the information provided by the Department of 

Justice there has not been a request under the ‘‘tangible things’’ 

category for library or medical records. That has been an area of 

substantial concern to some. Would you see any problem on specifically excluding, in a reauthorization of the PATRIOT Act, authority 

to obtain a library or medical records? 

12

Attorney General GONZALES. Mr. Chairman, let me try to reassure the Committee and the American people that the Department 

has no interest in rummaging through the library records or the 

medical records of Americans. That is not something that we have 

an interest in. We do have— 

Chairman SPECTER. Does that mean you would agree to excluding them? 

Attorney General GONZALES. We do have an interest, however, in 

records that may help us capture terrorists, and there may be an 

occasion where having the tools of 215 to access this kind of information may be very helpful to the Department in dealing with a 

terrorist threat. 

The fact that this authority has not been used for these kinds of 

records means that the Department, in my judgment, has acted judiciously. It should not be held against us that we have exercised, 

in my judgment, restraint. It is comparable to a police officer who 

carries a gun for 15 years and never draws it. Does that mean that 

for the next 5 years he should not have that weapon because he 

has never used it? 

Chairman SPECTER. Attorney General Gonzales, I do not think 

your analogy is apt, but if you want to retain those records as your 

position, I understand, and let me move on. 

The staff of the Judiciary Committee was briefed by the Department of Justice last month, and we were advised that it takes an 

average of 71 days to obtain a warrant under the Foreign Intelligence Surveillance Act. Does that sound right to you? 

Attorney General GONZALES. Sir, I do not know whether or not 

that is an accurate number. Perhaps Director Mueller might have 

more information about that. 

Chairman SPECTER. Would you check on that? 

Attorney General GONZALES. I will check on that. 

Chairman SPECTER. Because if it is true, and I note Director 

Mueller’s forehead furrowing a bit on that. It would certainly be 

very stale on the kind of information that a law enforcement officer 

would need. We have seen on oversight from this Committee before, going back to Wen Ho Lee, enormous problems in the Department of Justice on approval of warrants under the Foreign Intelligence Surveillance Act, and we have had some concerns with the 

FBI standard, which we go into back in June of 2002 with Director 

Mueller. That is a very vital weapon in the arsenal. The Committee 

would like to know how long it takes and to be assured that you 

are really on top of that issue. 

Director Mueller, on the so-called sneak-and-peek warrants, we 

have been provided with information just yesterday on some of the 

statistical data on the number of times these warrants were used. 

Sneak-and-peek means, for those who do not know, that there is 

no immediate notification given to the subject who has been the recipient of the search, of the secret search. 

There are some 92 instances where the catch-all category of ‘‘seriously jeopardizing an investigation’’ was relied upon. There are in 

the statute a number of specific justifications for the delay, endangering life or physical safety, flight from prosecution, destruction or 

tampering with evidence, intimidation of a potential witness. The 

broad catch-all of ‘‘seriously jeopardizing an investigation’’ is so 

13

broad that there are justifiable concerns that it can include practically anything. 

Could that category be eliminated or could you look to the situations where you have used that catch-all to be specific and have 

specific items, such as the first four, which give definable parameters to this delayed notification? 

Director MUELLER. Mr. Chairman, I do not believe that we would 

be well served by eliminating that provision. There are a number 

of circumstances that do not fit easily into the first four. An example is a recent case we had. It was a drug-smuggling operation 

from Canada in which individuals were bringing in a substantial 

amount of ecstasy from Canada. We had information, the DEA had 

information that this ecstasy was coming from Canada. They, quite 

clearly, did not want it on the streets, but they did not know all 

of the information as to whom it was to be distributed. 

When these distributors came to the United States, they stopped 

at a restaurant. As they stopped at the restaurant and ate their 

meals, the agents, pursuant to a warrant, were able to enter the 

car, pull out the ecstasy so it would never reach the street, strewn 

glass around, indicating that the car had been broken into, and the 

individuals came back on their way. That ability to delay notification of that entry into the car allowed us to arrest 103, I think—

somewhere over 100 persons who were involved in that conspiracy. 

Chairman SPECTER. Director— 

Director MUELLER. Now, the delay there was for less than 30 

days, and it was pursuant to a court order. 

The only other point I would make, Mr. Chairman, is that I 

think to characterize it as sneak-and-peek is wrong. It is a delayed 

notification. It is delayed notification that is pursuant to an order 

of the court. 

Chairman SPECTER. Director Mueller, let me interrupt you to ask 

you to give specific illustrations. I like to be fact-specific, and the 

one you gave is impressive, and we would like more of them. We 

were provided information that one period was 180 days, and we 

want to get into the specifics of that, but I have only one second 

left, and I will conclude and yield now to Senator Leahy. I want 

to stay right on time. 

Senator LEAHY. Thank you, Mr. Chairman. 

I mentioned in my opening statement that the 9/11 Commission’s 

report stated, with regard to extending the PATRIOT Act provisions, ‘‘The burden of proof for retaining a particular governmental 

power should be on the Executive.’’ 

Mr. Attorney General, do you agree that whenever possible the 

Government should make its case in public not in a classified report? 

Attorney General GONZALES. Certainly, I believe that to be the 

case, Senator Leahy, that we have a responsibility to inform not 

just the Congress, but the American people, about the actions of its 

Government. 

Senator LEAHY. I agree with you there. I noted that when Attorney General Ashcroft resigned, in his speech, he said, ‘‘The objective of securing the safety of Americans from crime and terror has 

been achieved.’’ If we take that too literally, we do not need you, 

we do not need Director Mueller, we do not need the police officers 

14

standing around this place. I know that you feel there is much 

work that still has to be done. I hope you will take a different tact 

than your predecessor and you will cooperate with this Committee 

as we consider how to improve upon and adjust the balances, we 

drew in the aftermath of 9/11 by way of the PATRIOT Act. 

I believe that many of us would be willing to consider renewing 

some of the provisions that are subject to sunset, but you have got 

to have a sense of trust through greater accountability from the 

Department first. 

I would like to see more and more regular reporting. Part of the 

difficulty with conducting oversight is the length of time it takes 

to get any information. Reports required by statute to be filed are 

months late or we never get them at all. For example, the PATRIOT Act required a report on the FBI’s translator program, but 

that report was not submitted until late December 2004. Last Fall, 

we directed the FBI to issue a broader set of data by a date certain, 

September 14th, 2005 [sic]. It was submitted on the 1st of April, 

April Fool’s Day, over 2 months late. 

The Department has also been slow in responding to questions. 

Late last Friday, we finally received answers to questions submitted to Director Mueller a year ago, last May. We, also, received 

answers to questions that we submitted to Deputy Attorney General Comey after a PATRIOT Act hearing. 

These are the reports and the outstanding hearing written questions and answers that were submitted between Friday, the 1st of 

April, and yesterday. I mention that because I do not think we 

would even have all of these. I mean, they come in at the last second, and they came in because we are having this hearing. If the 

Chairman had not scheduled it, I doubt if we would have had this. 

Some of them are over a year old. 

And then sometimes it is hard to figure out how we do it. Look 

at these charts over here representing responses to FOIA requests 

over the past 6 months. The FBI has released the same e-mail in 

three different versions. The first version was released in response 

to the FOIA lawsuit on October 15th, 2004. It is almost entirely redacted. So, then, you come a month later, a second version, in response to the FOIA suit, it has fewer redactions, but still difficult 

to decipher. A third version was released the following year, after 

Senator Levin requested it, in redacted form. 

Now, are the decisions of redacting made by the FBI or the Department of Justice? Because, obviously, three different decisions 

were made here on the exact, same document. 

Attorney General GONZALES. Can I, first, respond to your earlier 

point about being responsive to congressional requests for information? 

Senator LEAHY. I am complimenting you on getting these things 

in. They are a year late, but they are here. 

Attorney General GONZALES. The good news is you did have an 

answer. The bad news is that it did take us too long to respond. 

I have had discussions with members of my staff to advise them 

that we need to do better. I understand that you need information 

to properly exercise your oversight role, and I am committing to 

you that we are going to do better. We have a new process in place 

so that we can respond in a more timely fashion. 

15

But in defense of the Department, I am also aware that there 

have been extraordinary demands made by this Committee for information, obviously, within your right, but we want to be as careful and we want to be as forthright as possible, and it has taken 

us a great deal of time. 

Senator LEAHY. But how, over such a short period of time, could 

you have such varying differences on this? I mean, who is making 

these decisions? Is it the Department of Justice or is it the FBI? 

Attorney General GONZALES. I do not know specifically about 

these e-mails. I would be happy to look at them specifically and 

give you an answer, but, generally, of course, decisions made about 

how to respond to FOIA litigation, there are exemptions within 

FOIA which would allow the withholding of certain information. 

Senator LEAHY. I helped write a lot of that FOIA legislation. I 

understand it. The reason I picked this particular one is because 

it is talking about the coercive techniques of the Defense Department’s interrogations. It is interesting what was held out until a 

member of Congress really brought pressure. It said, ‘‘Results obtained from these interrogations were suspect at best.’’ ‘‘Suspect at 

best’’ was the part being kept out. Why was that initially kept out? 

Attorney General GONZALES. Senator Leahy, I really would like 

to study the e-mail and talk to the people involved in making that 

decision before answering that question. 

Senator LEAHY. Will you answer the question? 

Attorney General GONZALES. Once I have the information and 

feel that I can respond, give you some kind of answer, I am happy 

to do that. 

Senator LEAHY. Article 3 of the Convention Against Torture 

states that ‘‘no state party shall expel, return or extradite a person 

to another state where there are substantial grounds for believing 

they would be in danger of being subjected to torture.’’ Now, we are 

part of that treaty. What do you think the assurances we get from 

countries that are known to be torturers? When they say, well, we 

will not torture this person you are sending back, do you really 

think those assurances are credible? 

Attorney General GONZALES. I think, Senator, that is a difficult 

question that requires sort of a case-by-case analysis. We have an 

obligation not to render people to other countries when we believe 

it is more likely than not they will be tortured. The President said 

we do not engage in torture, we do not condone torture, and we are 

not going to render people to countries where we think it is more 

likely than not they are going to be tortured. 

Senator LEAHY. My time is up. I will come back to that because 

we do render them to countries that are known to be torturers. 

Chairman SPECTER. Thank you very much, Senator Leahy. 

Senator Kyl has had to leave to go to a leadership meeting, and 

he will be submitting a number of questions for the record. I turn 

now to our distinguished former Chairman, Senator Hatch. 

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 

THE STATE OF UTAH 

Senator HATCH. Well, we welcome both of you to the Committee. 

Of course, the reason we wrote the PATRIOT Act to begin with was 

to provide law enforcement the tools that it needs that it did not 

16

have in international terrorist situations. Many of these tools we 

already had with regard to the Mafia and other types of criminal 

activity, and so it was to update and bring the powers of our law 

enforcement people up-to-speed so that you could really go after 

international terrorists and domestic terrorists as well. 

By the way, as I understand it, there is a 72-hour emergency 

time in which you can apply for a FISA warrant and get it, if it 

is an emergency, just so everybody understands that. 

Now, much has been said, and much more will be said, about the 

effect of the PATRIOT Act on civil liberties. This is an important 

debate, but it is a debate that has to be guided by the facts, and 

the fact is that the critics of the PATRIOT Act are hard-pressed to 

provide documentation of any systemic abuse of the PATRIOT Act 

by the Department of Justice, the FBI or any other governmental 

agency. In fact, they are hard-pressed to provide any documented 

abuses of the PATRIOT Act. We have, I think, some 24 hearings 

on this issue and not one time have they been able to document 

an abuse. 

Whenever a relatively new and complex law like the PATRIOT 

Act is implemented by tens of thousands of law enforcement officials, there is always a chance for some mistakes, even serious mistakes, to be made. I think we need to be vigilant so that we minimize the overzealous or improper uses of the PATRIOT Act. If we 

can improve this legislation, we ought to do so. I have been particularly heartened by you, General Gonzales, and by you as well, Director Mueller, that you are willing to look at some changes in the 

legislation that would tighten it up and make it better. 

Now, in both of your prepared testimonies, you will note that 

Section 223 of the PATRIOT Act allows individuals aggrieved by 

any willful violation of the criminal wiretap statute or certain provisions of the FISA statute to file an action in Federal District 

Court to recover not less than $10,000 in damages. Moreover, Section 223 also requires the Department to commence a proceeding 

to determine whether a disciplinary action is warranted against 

any Federal employee found to have violated the wiretap statute. 

Now, the testimony of the Attorney General states, ‘‘To date, 

there have been no administrative disciplinary proceedings or civil 

actions initiated under Section 223 of the U.S. PATRIOT Act.’’ 

First, I want to make sure that I am correct in understanding 

that no actions have been brought, let alone have been successfully 

brought, under Section 223, in the three-and-a-half years since the 

PATRIOT Act has been on the books. Am I correct in arriving at 

that conclusion from your comments in your statement? 

Attorney General GONZALES. Your understanding is correct, Senator. 

Senator HATCH. That is fine. 

Second, what do you think this record shows about how seriously 

the Department and the Bureau take their responsibilities to protect civil liberties as they engage in activities to identify and prevent terrorist acts? 

Attorney General GONZALES. Senator, I think that that record indicates that we have tried to be careful in the exercise of these authorities. I think it, also, reflects the fact that I think Congress did 

a good job in drafting the PATRIOT Act and in including approVerDate 0ct 09 2002 12:04 Nov 04, 2005 Jkt 024293 PO 00000 Frm 00022 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\24293.TXT SJUD4 PsN: CMORC
17

priate safeguards. We take those safeguards very, very carefully. 

We think they are very, very important, a critical part of the PATRIOT Act, and so I think that that is also reflected in this record. 

Senator HATCH. Finally, going beyond the absence of cases filed 

under Section 223, can you tell the Committee whether you are 

aware of any documented cases of abuse of any provision of the PATRIOT Act? 

Attorney General GONZALES. I am not aware of any documented 

case of abuse. I am aware that an organization yesterday released—we received a copy of a letter to Senator Feinstein relating 

to alleged abuses under the PATRIOT Act. It is a very lengthy letter. Obviously, we want to look at it very carefully in response to 

it, but based upon our cursory review last night, it appears that all 

of the allegations in that letter do not sustain the fact that there 

has been an abuse of the PATRIOT Act or do not even relate to 

the PATRIOT Act. But, again, I want an opportunity to study the 

letter carefully and prepare an appropriate response. 

Senator HATCH. That has been my experience that most of the 

criticisms are of law enforcement not of provisions in the PATRIOT 

Act. They really do not apply. A lot of hysteria that has come from 

allegedly the PATRIOT Act violations really do not amount to anything and really cannot be justified. 

I know that Senator Specter will be holding a hearing in a few 

weeks during which several critics of the PATRIOT Act will have 

the opportunity to testify about their concerns. So we will look forward to that and see what happens. 

It would be helpful to the Committee if you would look into and 

provide us with a response to any specific charges of PATRIOT Act 

abuses that might be made at that hearing. So I would like to you 

to pay attention to that hearing and tell us as soon as you can 

about those particular abuses. Can we count on you to do that in 

a prompt manner? 

Attorney General GONZALES. You can count on that. 

Senator HATCH. Director Mueller, I think I have just enough 

time to ask this question. Your written testimony closes by making 

a plea for administrative subpoena authority in terrorist investigations. You note that Bureau has this authority in drug, health care 

fraud and child exploitation cases, among others, just to mention 

cases that are not terrorist involved. You, also, note that such a 

subpoena would be subject to challenge before the courts much like 

grand jury subpoenas may be challenged. Your testimony states, 

‘‘In investigations where there is a need to obtain information expeditiously, Section 215, which does not contain an emergency provision, may not be the most effective process to undertake.’’ 

Now, let me ask you and the Attorney General two questions 

about this statement. 

First, are you aware of any instances when a judge was not 

available to Act in a timely manner on a terrorism-related investigation? In other words, in short, is anything broken? 

And, second, if it is, in fact, broken or might potentially be a 

problem in the future, why would an administrative subpoena provision be a preferable fix to writing an emergency judicial review 

provision into the statute, and why would it be better to have a 

neutral magistrate be involved before the subpoena or warrant was 

18

issued if a suitable emergency review provision were crafted if such 

a provision is needed at all? 

Director MUELLER. Let me respond, if I could, Senator. 

Often we get information relating to threats, and we need to immediately find out whether that information is accurate or inaccurate, and we need basic records from third parties—hotel records. 

We may get information from the CIA or another agency that a 

person has come into the United States and is staying at a particular hotel in Washington, D.C., with an intent to link up with 

somebody else to conduct a terrorist attack in New York City. We 

need information from the hotel. We may even get the name of the 

hotel, and we need to get that information quickly. 

Now, we have been fortunate much of the time to have the cooperation of the persons who run these hotels, motels or other such 

agencies where we need third-party information. But an administrative subpoena, which we utilize in narcotics cases, which Congress has given to us to utilize in narcotics cases, health care fraud 

cases, child pornography cases, a ream of other circumstances 

where we have the same need for third-party information, the administrative subpoena allows us to get that information very quickly so we can maintain the momentum of that investigation. An example is ISPs, relating to the use of the Internet. 

The benefit of an administrative subpoena is that we can get it 

out, we can get it out there fast—the benefit to the Government. 

The benefit to the person who has been served with this subpoena 

is that they have an opportunity to challenge it before a court. 

They can talk to an attorney. They can challenge it before a court 

if they think it is unwarranted, not relevant to—unwarranted, let 

me just put it that way, or burdensome. So there is an advantage 

to us in terms of speed; there is an advantage to the recipient of 

the subpoena in terms of the ability to challenge it in court, as you 

would challenge a grand jury subpoena. 

Chairman SPECTER. Thank you very much, Senator Hatch. 

Senator Kennedy? 

Senator KENNEDY. Thank you, Mr. Chairman, and welcome, General, and thank you very much, Mr. Mueller, for being here. 

I would like to, Mr. Mueller, focus your attention on the detainee 

abuse in Guantanamo. On May 10th, 2004, the FBI e-mail described the Bureau’s efforts to raise the concerns regarding the interrogation practices at Guantanamo Bay. According to the e-mail, 

the Defense Department interrogation techniques were so coercive 

the FBI was worried about using the statements produced by the 

interrogations in military prosecutions. The concerns of the FBI 

agents were echoed by U.S. Navy interrogators who were so outraged by the abusive techniques that had been approved by DOD 

officials that Navy officials considered withdrawing its interrogators from Gitmo. 

Worse, the FBI e-mail describes DOD’s refusal to stop using the 

coercive techniques even after it acknowledged that the information 

obtained through coercion was no more substantial than what the 

FBI got using simple investigative techniques, and the FBI pointed 

out that the coercive practices produced unreliable information. 

Further, the problem of using the coerced confessions to prosecute 

19

the detainees was raised with the DOD General Counsel William 

Haynes, but it did not seem to make much of an impression there. 

Do you know, from your own inquiry, whether anyone higher up 

in the Bureau passed its complaints on directly to either the Attorney General or the White House counsel or to the Secretary of Defense or initiate any criminal investigations of these kinds of activities? Did you have the opportunity to interview the four Justice Department lawyers named in the e-mail to see what they did with 

the information that you gave them? 

Director MUELLER. My understanding is that persons in the hierarchy in the FBI did have conversations and, indeed, ultimately, 

we sent a letter to DOD reflecting concerns about certain instances 

that we had found, our agencies had seen at Guantanamo. There 

had been discussions, I would say, lower down in the Bureau with 

individuals at the Department of Justice with regard to appropriate 

techniques, particularly with regard to the understanding that FBI 

interrogations would be, according to our standards, would be necessary if we wished to prosecute an individual in the United States. 

Now, in terms of an investigation, I did not undertake an investigation as to these four individuals who are listed in that e-mail. 

My understanding is that there were some discussions with regard 

to the techniques that were being used in Guantanamo with those 

persons at DOJ, and my understanding is those persons at DOJ 

had further discussions with the Department of Defense. We did, 

at one point, inquire of our agents what procedures they had witnessed that they believed to be beyond our purview, and we did 

provide that information to DOD for appropriate resolution. 

Senator KENNEDY. So, as I understand, you had a communication 

with DOD. Is that the general counsel or do you know? Do you remember? 

Director MUELLER. I think it was at lower levels both here at the 

Pentagon, but also down in Guantanamo. I know, in looking at 

some of the e-mails that have been passed, I know that there were 

discussions down at Guantanamo between our persons and the 

general who was in charge of either the base or at least the interrogation techniques. 

Senator KENNEDY. Is that General Miller? 

Director MUELLER. Yes. 

Senator KENNEDY. I think the question is how are we going to 

ensure that the FBI is not going to be in the position of having to 

walk out of a room for fear they will be a witness to torture and 

who makes sure the prisoners are not tried and convicted on the 

basis of coerced statements that may be completely unreliable? 

How are you going to make sure that the FBI is not put in that 

position? How are you going to protect the Agency? 

Director MUELLER. Well, from the outset, we have directed our 

agents to follow our standards. Our standards, from our book, is it 

is the policy of the FBI that no attempt be made to obtain a statement by force, threats or promises. From the outset, we have directed our agents to follow that standard. So we have followed that 

standard with the understanding that we may well be called as 

agents to testify in a court of law in the United States where the 

issue will be voluntariness and in the course of attempting to obtain a conviction. 

20

Now, that does not mean that there are not other techniques 

that may be used by other entities that may well be legal, whether 

it be the CIA or the DOD. What I was concerned is that because 

our agents testify in the United States voluntariness is the standard, I attempted to assure that our agents followed that standard. 

Senator KENNEDY. Just in that e-mail, it does point out DOD finally admitted that the information was the same information the 

Bureau had obtained. Is that basically your understanding? 

Director MUELLER. I am not certain of the factual basis for that. 

I will say that it is tremendously important to get intelligence as 

well as providing a basis and predicate for going to court in the 

United States. We have had to modify some of our procedures, for 

instance, with regard to Miranda, when the circumstances are such 

that we would have to forego or use a modified Miranda and perhaps forego successfully having a person’s statement admitted into 

a U.S. court in those circumstances where it is very important to 

gain intelligence as to future threats. 

Senator KENNEDY. Let me move just to another area. This is on 

the GAO office found that a total of 44 firearm purchase attempts 

were made by individuals designated as known or suspected terrorists by the Federal Government from February 3rd to June 30th, 

2004. In 35 cases, the FBI specifically authorized the transactions 

to proceed because field FBI agents were unable to find any disqualifying information such as felony convictions or illegal immigration status within the federally prescribed 3 days. 

In response to a recent inquiry by Senator Lautenberg and myself, other Senators, you indicated the Justice Department is convening a working group to study the GAO report and existing law 

and regulations. Should the FBI be in the business of authorizing 

the transfer of guns to people on terrorist watch lists? 

Director MUELLER. Well, as we indicated in the response, the Attorney General has established a working group to look at that 

very issue. Persons may well be on a terrorist watch list without 

any disqualifying factor, and that is a factor that would disqualify 

them from getting a weapon, such as a conviction, such as an outstanding warrant, such as a stay away order. If that is the case, 

in these instances where GAO mentions that, and we become 

aware, as we would when we are alerted that somebody on the 

watch list wishes to purchase a gun, we then will pursue that. We 

will not let it go. 

But in terms of whether or not there should be some modification 

to the regulations or the statute, the Attorney General has established a work group to look into that. 

Senator KENNEDY. My time is up, but either the watch list needs 

addressing to be altered or changed, I would think. That is what 

we have for those individuals. We would have to ask is there a role 

really for the FBI for approving these matters. 

I thank the Chair, and I thank the— 

Chairman SPECTER. Thank you, Senator Kennedy. 

In order of arrival, Senator Cornyn. 

Senator CORNYN. Thank you, Mr. Chairman. Thank you, General 

Gonzales and Director Mueller, for being here today. 

Let me pick up, Director Mueller, with some of the questions 

that Senator Kennedy was asking you to make sure I understand 

21

why it was the FBI did not believe it could use some of the DODapproved interrogation techniques at Guantanamo. 

I have traveled, like many other members of the Committee 

have, to Guantanamo and had a chance to talk to General Miller 

and see some of the detainees there and understand a little bit better about what was going on. As I understand, we were trying to 

do two things perhaps at the same time. One is to get good, actionable intelligence in a legal and appropriate manner that could help 

save American lives, either in the field, battlefield in Iraq, Afghanistan or here in America. That was one of the goals, correct, sir? 

Director MUELLER. Absolutely. 

Senator CORNYN. Also, there would be, under appropriate circumstances, an attempt to enforce our criminal laws, investigate 

violations of our criminal laws, past violations, and bring those to 

a court of law and seek to obtain a conviction of appropriate individuals; is that correct? 

Director MUELLER. True. 

Senator CORNYN. Just so I understand, the reason why the FBI 

did not believe it could use all of the DOD-approved interrogation 

techniques is because different rules apply in a criminal prosecution with regard to information that an interrogator obtains from 

a suspect; is that right? 

Director MUELLER. That is one of the reasons, yes. 

Senator CORNYN. You talked about rules of voluntariness. 

Director MUELLER. Yes. 

Senator CORNYN. In other words, it has got to be a voluntary 

statement by the suspect; is that right? 

Director MUELLER. Correct. 

Senator CORNYN. For example, General Miller demonstrated to 

me when I was at Guantanamo how they would literally take a detainee from one location, I think, as I recall, three different places 

where they could be housed, but they would, on the basis of their 

cooperation, provide them better or perhaps food that they liked 

better. They could live in a group setting, as opposed to an individual cell, and that would be based on promises of cooperation and 

the like, certainly, not torture. But as I understood your testimony, 

it may impede a criminal prosecution because it may not be construed by a court in a criminal case as being strictly voluntary; is 

that right? 

Director MUELLER. Perhaps. 

Senator CORNYN. So the fact that the FBI did not participate in 

some of the interrogations conducted by Department of Defense or 

other officials, was that because you thought that they were engaging in a policy of torture or because you were concerned about your 

ability to obtain a criminal conviction based upon different standards in a court of law? 

Director MUELLER. My understanding was that there were discussions elsewhere about the appropriateness of certain standards 

to be used by other agencies besides ourselves. I did not participate 

in those discussions. I understood that it was important to gain intelligence, but from the perspective of the role of our agents, it was 

to assist in interrogations, but to do so pursuant to the standards 

that we have employed in the past. There was some debate on the 

effectiveness of particular mechanisms. I think it is fair to say that 

22

our agents were far more familiar in this area than I am. I believe 

that using the carrot rather than the stick often was more effective, 

but that was a debate that was ongoing. 

Senator CORNYN. As I understood, you said it was against FBI 

policy to use promises as part of an inducement for people to give 

intelligence information or give information during an interrogation. 

Director MUELLER. That is true. 

Senator CORNYN. Yet that was one of the techniques used with 

great success at Guantanamo Bay to get information— 

Director MUELLER. Good point, yes. 

Senator CORNYN.—that has provided intelligence information 

and potentially saved American lives; is that right? 

Director MUELLER. That is right. 

Senator CORNYN. There have been some questions, of course, 

about the PATRIOT Act since it was passed three-and-a-half years 

ago. Of course, as I think Senator Leahy pointed out, of course, 

there has always been a debate about appropriate freedom and liberty interests and what we need to do in order to protect our security. 

But let me ask you, General Gonzales, do you believe that the 

passage of the PATRIOT Act and its implementation by the Department of Justice, and by the FBI, and by other Government 

agencies is one of the reasons, one of the reasons, why al Qaeda 

and other terrorist organizations have been unsuccessful to date in 

attacking Americans on our own soil since September 11th? 

Attorney General GONZALES. I do believe, Senator, it is one of the 

primary reasons because of the sharing of information, which both 

the WMD Commission and the 9/11 Commission have recognized is 

so very, very important. So I think it is one of the reasons. 

I, too, like Senator Leahy and others here on this Committee, 

was involved in the drafting of the PATRIOT Act. We acted with 

deliberate speed because, quite frankly, we were concerned about 

a second attack, but we acted with a great deal of care and deliberation because we all understood that, while we needed to protect 

this country, we needed to do so in a way that was consistent with 

our values and consistent with the Constitution, and I think the 

PATRIOT Act reflects that balance. 

Senator CORNYN. I agree with you that the PATRIOT Act is good 

work done under difficult circumstances, and I say that, in part, 

number one, it has been successful in at least contributing to the 

lack of a follow-up terrorist attack on our own soil as a result of 

some of its provisions. 

But, secondly, it is true, is it not, General Gonzales, that the PATRIOT Act has been challenged numerous times in courts of law, 

and with the exception of the material support provision, which actually predates that controversy, predates the PATRIOT Act, there 

has been no provision of the PATRIOT Act held unconstitutional in 

a court of law; am I correct? 

Attorney General GONZALES. There have been numerous challenges to various provisions of the PATRIOT Act, and I think, to 

date, that we have been successful in resisting those challenges. 

Some decisions have been made by courts and some people have—

there is confusion as to whether or not was the provision chalVerDate 0ct 09 2002 12:04 Nov 04, 2005 Jkt 024293 PO 00000 Frm 00028 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\24293.TXT SJUD4 PsN: CMORC
23

lenged or struck down by the court really a provision of the PATRIOT Act. I think, if you study some of those decisions very carefully, you soon realize that they relate to provisions that were enacted by Congress years before the PATRIOT Act. 

Senator CORNYN. I see my time is up. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Cornyn. 

Again, in order of arrival, Senator Feingold. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

First of all, with regard to the point Senator Cornyn was just 

making and the Attorney General was making, I want to clarify 

one thing about the recent decision striking down a national security letter authority that is expanded by the PATRIOT Act. The 

law that the court struck down was very different from the law 

passed in 1986. While the court focused on the lack of procedures, 

it was in the context of a law that allowed FBI agents to obtain 

records and even entire databases under a much different standard 

than was originally passed. 

Mr. Chairman, I would say the Senator from Texas is simply not 

correct to say that the court struck down only the 1986 law. It 

struck down a law dramatically expanded by the PATRIOT Act. 

There is your example on the record of a provision of the USA PATRIOT Act that has been struck down. 

Mr. Chairman, thank you very much for holding this hearing. I 

am pleased that we are beginning our review of the PATRIOT Act 

early in the year, and I want to thank you very much for your commitment to taking the time necessary to review the executive 

branch’s exercise of Government power since September 11th. I am 

heartened that this year Congress will have the time and the perspective that we did not have in 2001 to carefully and calmly consider the many expanded Government powers in the PATRIOT Act. 

As we all know, the PATRIOT Act was proposed days after the 

horrific September 11th attacks, and the bill was passed and 

signed into law just a little more than a month later. I tried, in 

that emotionally charged time, to convince my colleagues that some 

provisions went too far and needed to be revised, but my amendments were rejected, although, Mr. Chairman, I want to note that 

you supported me in some of those efforts, and I will always appreciate that. 

Now, today, after three-and-a-half years of the Justice Department adamantly opposing any changes, and in some cases belittling critics, we have here today the Attorney General of the 

United States coming before us to this Committee to announce that 

he, too—he, too—recognizes the concerns about the PATRIOT Act 

are not so farfetched and that changes must be made. So we have 

come a long way. 

Attorney General Gonzales, I wish this day had come sooner, but 

I am delighted. I need to understand more about the changes to 

Section 215 that you are proposing, since they were not mentioned 

in your written testimony submitted yesterday, and it is possible 

that we will disagree about whether your changes are adequate to 

address the concerns of the American people, but this is a departure from what we have heard before. It is a good start. Having 

24

now taken this step, I hope we can have a productive dialogue that 

has been missing for so long. 

I look forward to working with you, Mr. Chairman, and with our 

witnesses and with other members of the Committee as we embark 

on the reauthorization process, and I would ask that my full statement be printed in the record so I can turn to some questions. Mr. 

Chairman, I would just ask that my statement be put in the record. 

Chairman SPECTER. Without objection. 

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

Senator FEINGOLD. Mr. Attorney General, I would like to ask you 

a bit more about a provision that you mentioned, the delayed notification or sneak-and-peek search warrants which were authorized 

in Section 213 of the PATRIOT Act. That provision, as you know, 

does not sunset, but has sparked a lot of controversy. 

Before I start, I want to express a little frustration that the Committee received a lengthy letter just yesterday afternoon responding to some very longstanding requests for information about the 

use of the sneak-and-peek provisions. Given that we have only had 

a few hours to review that letter, I hope that you will agree to respond to any follow-up questions promptly. 

Attorney General GONZALES. Of course. 

Senator FEINGOLD. I want to clarify a few things regarding 

sneak-and-peek warrants that I think have gotten a little confused 

in the debate. 

Mr. Attorney General, if the FBI were investigating an international terrorist or spy, it could obtain a secret FISA search warrant and never provide any notice to that person; that is correct, 

is it not? 

Attorney General GONZALES. Generally, yes, sir—no notice under 

FISA. 

Senator FEINGOLD. Section 213 has nothing to do with that authority one way or the other; that is right, is it not? 

Attorney General GONZALES. That is correct. 

Senator FEINGOLD. So, when we are discussing Section 213, Mr. 

Chairman, we are talking, for the most part, about searches done 

to investigate crimes that have nothing to do with terrorism or espionage, right? 

Attorney General GONZALES. It can, but it also includes other 

kinds of crimes. That is correct, 213. 

Senator FEINGOLD. There is no inherent connection to terrorism— 

Attorney General GONZALES. That is correct. 

Senator FEINGOLD. —vis-a-vis the power in Section 213 of sneakand-peek. 

Attorney General GONZALES. That is what Congress intended, I 

believe, when they drafted 213. 

Senator FEINGOLD. I am glad we clarified that because I think 

many people have a different calculation about what they think 

should be permissible if we are talking about terrorism investigations. People should be clear Section 213 sneak-and-peek is, in no 

way, delimited to terrorist situations. 

In the letter we received yesterday, the Department said that 

sneak-and-peek warrants are constitutional, in general, because of 

25

a Supreme Court case Dalia v. United States. Let me remind you 

what that case says. It says that if the Government is planning to 

install a bug in someone’s home, it can get a search warrant and 

delay notification because that is the ‘‘only means’’—only means—

‘‘by which the warrant effectively may be executed.’’ 

Now, that is a pretty strict standard, is it not? Much stricter 

than the standard in the PATRIOT Act, right? 

Attorney General GONZALES. I would like to go back and look at 

that decision carefully before I give you that answer, Senator, but 

I would be happy to do that. 

Senator FEINGOLD. General, I can assure you there are various 

items listed as justifications under 213, and they are certainly 

broader than the language ‘‘the only means by which the warrant 

effectively may be executed.’’ 

I would argue that this is a much stricter standard than in the 

SAFE Act. Is that the standard that you think should apply to 

sneak-and-peek searches? And, if not, would you agree that the reliance on the Dalia decision is misplaced? 

Attorney General GONZALES. Well, the standard that applies 

with respect to all of these kinds of warrants would be probable 

cause. That is the standard that applies here. 

Senator FEINGOLD. As I understand it, this is a question of what 

circumstances allow an exception to the normal notice, and certain 

items are listed as exceptions. We may have a disagreement about 

what those exceptions should be, but all of this is certainly broader 

than the language of the Dalia decision, which speaks only in 

terms of only means by which the warrant effectively may be executed. 

Attorney General GONZALES. Again, Senator, I have not read 

that case in some time, so I would like to opportunity to review it. 

What people need to understand, though, with respect to 213, it 

requires a determination by a judge, first, that there is probable 

cause; secondly, that there is a reasonable cause to believe that 

providing immediate notice would result in some kind of adverse 

result. So this is not a decision made solely by the Government. 

This is a decision made by a Federal judge, finding a reasonable 

cause and an adverse result is going to occur. 

Senator FEINGOLD. What we are talking about here, of course, 

are various provisions that are exceptions to what many of us regard as a constitutional protection. So the law in its current form 

and the proposals that we are making to change it all identify only 

certain circumstances where this exception can be made. 

My suggestion to you, and I am happy to move on to the next 

subject so that you can review it, is that the Dalia decision does 

not even support that standard, let alone the type of standard that 

we are proposing under the SAFE Act. 

Attorney General GONZALES. I would be happy to look at that, 

Senator. 

Senator FEINGOLD. Mr. Chairman, my time has expired. 

Chairman SPECTER. Thank you, Senator Feingold. 

Senator Sessions? 

Senator SESSIONS. Thank you, Mr. Chairman. 

With regard to the 1986 Act and the debate about whether the 

PATRIOT Act was struck down, and I believe it has been discussed 

26

here, Senator Cornyn, former Justice Cornyn, has written an oped that was published in the Washington Times and notes this, 

that what was struck down indeed was the 1986 Act, and in fact 

the ACLU, after contending otherwise, backed down and admitted 

that it attacked the wrong law. As ACLU attorney Jameel Jaffer 

eventually conceded, ‘‘The provisions we challenged and that the 

Court objected to were in the statute before the PATRIOT Act was 

passed. We should have raised the same objections before the 

power was expanded.’’ 

And in fact, Attorney General Gonzales, you never objected to the 

review and in fact thought it was implicit in the statute anyway, 

did you not? 

Attorney General GONZALES. That is correct. 

Senator SESSIONS. Let me just say this. I still contend that a 

myth has been created in large degree as a result of the talking 

heads on television that said we were going to have to erode our 

constitutional liberties to protect ourselves from terrorism. The Department of Justice, working with this Committee, crafted the PATRIOT Act and it was interpreted somehow as an erosion of our 

constitutional liberties when in fact it was never such, in my view. 

I predicted then that there was no provision of it that I believed 

would be struck down, and to date I do not believe any has. 

The PATRIOT Act basically is a restrained piece of legislation 

that focuses on a number of loopholes and gaps in our law. Many 

times situations arise, as Mr. Mueller has noted, where the DEA 

can go out and issue administrative subpoenas in a drug case, the 

Food and Drug Administration can go into businesses and search 

everything in the business and get all kinds of documents, but an 

investigator investigating somebody trying to kill millions of Americans cannot do it. So what we did was try to give the same proven 

constitutional powers that existed in other investigations to people 

investigating terrorism and to break down the walls that had been 

created between intelligence agencies that made it far more difficult to share that information. 

Am I wrong, Mr. Mueller, fundamentally in that— 

Director MUELLER. No, I think you are accurate, sir. 

Senator SESSIONS. And with regard to the delayed notification of 

a search warrant. Before you can get a search warrant, you have 

to get approval of a court and have probable cause that would justify you conducting that search. Is that not correct? 

Director MUELLER. Yes, sir. In every case. Pursuant to the Constitution. 

Senator SESSIONS. And if an FBI agent or a State police officer, 

if it is brought to your attention that they have conducted a search 

without a warrant, would you take immediate action against them? 

Director MUELLER. The statutes require it. 

Senator SESSIONS. And there is no doubt in the culture of law enforcement in America today—I say this as a prosecutor for 15 

years—that you do not conduct searches without a court-approved 

warrant. Is that not correct? 

Director MUELLER. That is correct except in a very limited area 

where there may be an emergency. But in every case that I am 

aware of, you have to go before a judge within a certain period of 

time to get approval of that action. It can only be an emergency. 

27

Senator SESSIONS. And the FBI knows that and they do not do 

it. That is the point I am simply making. 

Director MUELLER. Correct. 

Senator SESSIONS. In 12 years as United States attorney, there 

was one wiretap that we were involved in. It is not a common thing 

to do a wiretap. You have to have a tremendous amount of proof 

and court approval and supervision. 

But on this delayed notification, the so-called sneak-and-peek, 

basically all it says is that historically you issue a report or an inventory of the search and you give that to the person once you conduct a search warrant contemporaneously with the completion of 

the search. Is that not the traditional rule? 

Director MUELLER. Correct. 

Senator SESSIONS. But the courts have upheld in the past and it 

is an established principle of law enforcement since I was connected with the Department of Justice that you could conduct a 

search under certain circumstances with court approval and delay 

notification to the person who is being searched. Has that not been 

true? 

Director MUELLER. Yes. 

Senator SESSIONS. Before the PATRIOT Act. 

Director MUELLER. Around the country, various courts have 

upheld that process over the years. 

Senator SESSIONS. So this Act simply said we can do it when we 

are investigating people that are trying to kill us, not just sell 

drugs on the streets. 

Director MUELLER. That, and it also regularizes the practice 

throughout the United States. 

Senator SESSIONS. I think that is important for us to know here. 

Now, they complain, and General Gonzales notes that perhaps 

the most controversial part is the part about the libraries. That is 

almost amusing. I mean, some of the things that have come out of 

the national Library Association, in my view, have been utterly extreme. It sounds like Woodstock myths, out of Woodstock or something. Library records, like medical records, like business records, 

have always been subject to subpoena. Is that not right, Mr. 

Mueller? You have been a Federal prosecutor for how many years 

before you became FBI? 

Director MUELLER. Off and on for maybe 25 years. 

Senator SESSIONS. And I would just say you are recognized as 

one of the most professional and able prosecutors in the Department of Justice, maybe in the history of the Department of Justice. 

Director MUELLER. I would not go that far. 

Senator SESSIONS. Well, I might. I might. Because I served with 

you and I know the reputation you had throughout the Department. So this is always—you can subpoena these records. 

Director MUELLER. Yes, you can. 

Senator SESSIONS. You tell me a principled reason why you could 

subpoena someone’s medical records, their bank records, their telephone records, but not subpoena their library records. Is there one? 

Director MUELLER. I do not believe so, and I do not believe there 

should be a safe harbor for libraries. We have had occasions where 

we have had terrorists who are operating, generally, computers. 

Many libraries now, public libraries, have computers that you can 

28

have access to. And this has not been lost upon those who are affiliated with terrorist groups. We have had investigations in which 

we have seen persons associated with terrorist groups go into a library, use the library to communicate, or the computers in the library to communicate, draw up jihadist literature, and the like. We 

have been fortunate not to have used 215 because we have had the 

cooperation of the libraries to date. But the libraries can upon occasion be used for persons to communicate. 

As I indicated, terrorists, we have had more than one—several 

examples where terrorists have used libraries as you would use a 

Kinko’s or some other place to have access into a computer. We 

have also had occasions where, for instance, in the Kaczynski case, 

where the Unabomber, who was living in a remote area of the 

country but writing these tomes that would justify his actions in 

sending letter bombs, he utilized excerpts or quotes from various 

books. We came to find out that there was a library he was using, 

and we subpoenaed those records. It is in cases like that, cases 

where we have a belief, a predication that persons are using libraries in ways that will assist them in their illegal activities, where 

we believe that we should have the opportunity to address a subpoena of some sort to the library and have them produce records. 

Senator SESSIONS. Thank you. And I know that they are entitled 

to every kind of constitutional protection, a library is, that anyone 

else is. But I do not think a library deserves a special protection 

over any other business. 

Thank you, Mr. Chairman. 

Director MUELLER. Could I add one other thing, if I might, Senator? We are sensitive to the concerns of the Library Association. 

But all that being said, we think that the balance is well struck 

in terms of our need to obtain records from a library. If it is 215, 

a judge is reviewing that request. And so the balance is fairly 

struck, I believe, in terms of the desire of librarians and others to 

protect the sanctity of the library. 

Senator SESSIONS. A library does not have any sanctity. Why 

does a library have sanctity that your medical records do not have? 

Director MUELLER. Well, a number of areas have been looked 

upon as being special. 

Senator SESSIONS. They think it is sanctified, I will admit. I just 

disagree that it deserves special protection. 

Chairman SPECTER. May we move on, gentlemen? 

Senator Schumer? 

Senator SCHUMER. Thank you, Mr. Chairman. And I want to 

thank both the Attorney General and the Director for being here 

today. 

I am going to start of with—Senator Kennedy mentioned it briefly—the issue of terrorists and guns. I think both of you would 

agree with me that in order to fight an effective war against terror, 

common sense dictates we must not only take care to arm ourselves with the proper legal tools, but we ought to disarm terrorists 

as well. And you are familiar that all of us learned, unfortunately, 

last month from the GAO report that we are not doing everything 

we can to disarm terrorists. Forty-seven times, it was reported, 

people on terrorist watch lists legally purchased guns in the U.S. 

29

Even worse, it would be bad enough if this were accidental, but 

it is not. Even if the FBI wanted to prevent a suspect terrorist from 

buying a gun, even if the watch lists were perfect—because I know 

you alluded to the fact that maybe the watch lists are not perfect—

the FBI could not, could not prevent a terrorist from buying a gun. 

If you are on a terrorist watch list today, that fact is not enough 

under current law to be denied a deadly firearm. So what that 

means, it leads to an absurd conclusion. If somebody is convicted 

for some nonviolent crime, like illegally selling lottery tickets, he 

cannot even buy a revolver. But if he has sworn allegiance to al 

Qaeda, he can stock up on AK–47s and Uzis to his heart’s content. 

What troubles many of us, of course, is the substance, but is 

also—it is completely out of touch and out of tune and out of consistency with what this administration does on every other issue. 

So when it comes to the age-old clash between security and liberty, 

the administration instinctively sides with security, except in one 

area—guns. Guns are inexplicably a sacred cow. And you have to 

wonder why this is. Is it politics? Is it the power of the NRA? As 

you know, I agree with the President that we should have a strong 

offense on the war on terror. But we should be going after the terrorists in every way when they prepare to strike us and not make 

a huge exception for guns. By the same logic that the administration has pressed over and over again, if we prevent garden variety 

criminals from possessing firearms, why do we not prevent suspected terrorists from possessing them? I do not understand that. 

So that is why Senator Lautenberg and I wrote a letter to the 

Department demanding action, asking that gun-purchase records, 

rather than being destroyed within 24 hours, are kept for a longer 

period. I also have to tell you, I am going to plan to introduce an 

amendment to this bill that would, once and for all, make it illegal 

for people on terrorist watch lists from getting guns. In addition, 

because I support Senator Lautenberg’s efforts to keep gun records, 

I plan to offer in Committee an amendment to prevent the destruction of gun sales so that we do not hamper our ability to trace terrorists. 

First, to Secretary Gonzales, would you consider, would the administration consider supporting legislation to prevent those on 

watch lists from buying guns? 

Attorney General GONZALES. Well, let me be very clear about 

this, Senator. The administration does not believe and would prefer 

not to have, desperately prefer not to have terrorists possessing 

guns. And we do what we can to make sure that that does not happen. But at the end of the day, we have to enforce the law. And 

unless someone has a disability under the law from possessing a 

firearm, then they are entitled under the law to possess a firearm. 

And so we have taken steps, also reflected in the GAO report, to 

try to buy some additional time— 

Senator SCHUMER. Mr. Attorney General, I am asking you, would 

you support, would the administration just consider supporting 

changing the law? 

Attorney General GONZALES. We would certainly consider looking 

at your legislation, of course. 

Senator SCHUMER. You would not rule it out? 

Attorney General GONZALES. That is correct. 

30

Senator SCHUMER. Good. Thank you. 

Second, that would relate to terrorists not getting guns when 

they go into the gun shop. But sometimes you find out that someone is a terrorist after they have purchased the gun. I think we 

have had that in a few instances as well. That would mean that 

we would have to keep the records for at least a longer period of 

time. Your predecessor instituted a policy where the records were 

destroyed in 24 hours. Would you consider supporting legislation 

that would require the records be kept for a period longer than 24 

hours, particularly—Well, let me ask you that. 

Attorney General GONZALES. We would be happy to look at your 

legislation. My own sense, it is not the fact that the records are 

being destroyed in 24 hours that is sort of the main problem, it is 

the fact that it is currently not a disability from owning a firearm. 

But we would be happy to consider your legislation. 

Senator SCHUMER. Well, but this is an example. I mean, Joe 

Smith goes into a gun shop, buys a whole bunch of guns legally, 

and then it is found out later that he was on a terrorist watch list. 

If you destroy the records—well, you will not be able to find out 

later, if you destroy the records. That is why we want to keep the 

records. No one wants to use them for any other purposes. So I 

would urge you to consider that as well. That is a possibility? 

Attorney General GONZALES. We would consider that. 

Senator SCHUMER. Good. Because your predecessor had instituted the previous policy. 

And just in reference to what Mr. Mueller said—and I share the 

respect for the FBI Director that my colleague from Alabama 

does—you were alluding, when Senator Kennedy asked you questions, well, we are not sure the watch list is perfect. I thought that 

is what you were saying, the watch lists have some problems. Well, 

we use them for lots of other things—not getting on an airplane, 

things like that. You are not saying we need a standard of perfection in the watch lists before we use them to prevent people who 

are on them from buying guns, are you? 

Director MUELLER. No. What I meant to say is there are people 

on the watch list who do not suffer from any of the disabilities that 

would preclude them from having a weapon. In other words, there 

would be information that leads us to believe that a person is affiliated or associated with terrorism. We put him on the watch list, 

but that person will not necessarily have that— 

Senator SCHUMER. You mean will not have a criminal record. 

Director MUELLER. Will not have a criminal record, will not 

have— 

Senator SCHUMER. Right. But we do not require a criminal record 

for airplane boarding or anything else. Why should we allow people 

like that to buy a gun? Any good reason? 

Director MUELLER. No, all I was saying, that the watch list 

should not be the—Well, the watch list serves certain functions. It 

does not serve the function of assuring that everybody on there has 

the debilitating factor— 

Senator SCHUMER. Well, that is not what it is supposed to be, as 

you know. It is a totally different list. 

Director MUELLER. That is true. 

31

Senator SCHUMER. There are people who are not American citizens on that list. 

Director MUELLER. That’s the only point I was trying to make. 

Chairman SPECTER. Senator Schumer, your time is up. 

Senator SCHUMER. Thank you, Mr. Chairman. 

Chairman SPECTER. Director Mueller, I want to return to a subject I raised in my opening statement, and that is the report of the 

Commission on Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction. No matter how effective the 

PATRIOT Act will be, we know that, unless there is information 

sharing among the intelligence agencies, we have a gigantic gap in 

our security system. And we do know, and have talked about this 

extensively, about the tremendous amount of information which 

was available before September 11th, about that Phoenix FBI report which never got to headquarters, with the fellow who wanted 

to learn how to fly a plane but was not interested in take-offs or 

landings. And we had Agent Coleen Rowley’s report about the 

wrong standard being used on Foreign Intelligence Surveillance 

Act that never got to the headquarters of the FBI, and she was in 

this room back in June of 2002 and we had extensive discussions 

about that. And we know the CIA had information about al Qaeda 

agents in Kuala Lumpur, never given to Immigration and Naturalization Service. And we know about Zacarias Moussaoui, part of 

the Agent Rowley issue as to the information which might have led 

to total disclosure of the al Qaeda plans. 

And then we had the legislation to create the secretary of homeland security, and Senator Lieberman and I, co-authors, fought 

hard to get a provision that would give direction to the secretary 

and we could not get it done. The House passed the bill in October 

of 2002 and, as they do from time to time, left town, so that we 

were faced either with taking their bill or deferring the matter 

until the spring. Now we have the creation of the national Counterintelligence Center, and of all the specifics on the war against terrorism, it is my view, having chaired the Intelligence Committee 

and done a lot of oversight on this Committee, that that coordination is the most important and without it, we are desperately vulnerable. One of the first things I did after taking over the chairmanship was to come to see you to clearly get into that subject. Because I think we can be helpful on oversight. 

Let me say this to you, Attorney General Gonzales, there is a lot 

of experience on this panel. There are prosecuting attorneys, there 

are lawyers with a lot of experience, or jurists, who have been in 

the field a long time. So that it was with really some dismay that 

I saw the report of the Commission on Intelligence Capabilities Regarding Weapons of Mass Destruction again referring to clashes between the CIA and FBI not only in regard to what agency gets 

credit for an intelligence report, but also in the field, where lives 

are at stake. And then the failure of the CIA and FBI to cooperate 

and share information adequately on cases could potentially create 

a gap in the coverage of these threats like 9/11. And there are a 

lot of references. And, only to cite one more, in-fighting between 

the FBI and the CIA had ‘‘become too common’’ and that ‘‘potential 

information on terrorism sometimes was not shared among the 

FBI, CIA, and Department of Homeland Security.’’ 

32

Director Mueller, are those criticisms outdated? 

Director MUELLER. I think, if you focus on what the WMD Commission was looking at, some of it was accurate, particularly when 

it comes to the sharing of information between our Legats overseas 

and the CIA station and the sharing of information and the working cooperatively between the NR stations and the FBI here. We 

are well on our way to resolving those coordination issues. 

On the other issue of sharing information with regard to— 

Chairman SPECTER. Director Mueller, when you say ‘‘well on 

your way,’’ it has been a long time since 9/11 and it has been a long 

time since June 6th, when you and I were here together, and a 

long time since October, when Senator Lieberman and I tried to get 

it under one command. Now, we do have a new national Director 

of Intelligence, but he has not been confirmed and it will take him 

awhile to get operational. And who can say that, assuming confirmation of Director Negroponte, that he is going to be able to 

solve the problems? 

Director MUELLER. If I might, Mr. Chairman, in the sharing of 

information between the CIA and the FBI when it comes to terrorism, we have made huge, huge strides. I am not certain that the 

quotes that you are stating would accurately reflect our exchange 

of information on terrorism. We have established a national 

Counterterrorism Center— 

Chairman SPECTER. So the quotes are wrong? 

Director MUELLER. I would say they do not accurately describe 

the full picture of what we have done since September 11th to assure cooperation between the FBI and the CIA. And I mentioned 

the national Counterterrorism Center, where we gather information in the United States pursuant to our procedures—the CIA 

gathers it overseas—and we have used it in the national 

Counterterrorism Center. We have colocated certain of our international terrorism units with similar units with the CIA, and the 

exchange of information there is as good as it possibly could be. 

Chairman SPECTER. Director Mueller, let me ask you one final 

question before my 36 seconds expire in this round. There are reports about critical information which led the administration to 

conclude that Saddam Hussein had weapons of mass destruction 

and it came from somebody named Curveball, or nick-named 

Curveball. And then the reports are that the information from 

Curveball never got to CIA Director Tenet. And then there are reports that the information from Curveball never got to Deputy Director McLaughlin. 

Now, during my stewardship here, I am going to put everybody 

under oath when we have testimony, as we do on confirmation 

hearings. But I am just aghast at the necessity for Congress to pursue these issues as if we are after John Dillinger, as to who knew 

what and when. 

Director MUELLER. Well, I am disappointed as well, Mr. Chairman. 

Chairman SPECTER. That is not your watch. 

Director MUELLER. I am disappointed as well, Mr. Chairman, 

that you feel you have to do that. 

Chairman SPECTER. Senator Leahy? 

Senator FEINSTEIN. Mr. Chairman, I think you— 

33

Chairman SPECTER. Pardon me, Senator Feinstein. Senator Feinstein. 

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

General, I want to thank you for the report that you sent, which 

I have received and have been poring through. I think it is very 

helpful, and we have given a copy of it to each member of the Committee. As I understand it, you go through each section—I am talking mainly now about the 16 sections subject to sunset—with respect to the use, and it varies rather dramatically. Sections 201 

and 202, you say, have been used maybe once, maybe twice. And 

you get to 203(b) and 203(d), which involves the wall, and they are 

quite frequently used. And I wanted to ask you about it. 

As you mentioned in your comment a little earlier, the ACLU has 

written a 10-page letter, which is rather specific, particularly on 

page 8 and 9, on some specific what they contend are abuses of the 

PATRIOT Act. Now, we have scrubbed the area once again and we 

find—I have no reported abuses. I had 21,000 reported abuses 

when we started this. We have asked the Inspector General for 

abuses, and he has not come up with any. 

So I think the situation is very different today as opposed to 

what it was when we passed the act. I think, for one thing, PATRIOT II, which was reportedly going to come to the Hill following 

PATRIOT I, did not. And I think that has become clear. I think 

people’s understanding of the Act is much clearer today. I think 

there are still misimpressions around 203(b) and (d). And the 

ACLU letter, because I authored in this Committee the significant 

purpose test, I want to ask you a question specifically about that 

test and the Brandon Mayfield case, using it as an example. 

Can you describe how the significant purpose test was used in 

this case? I think it is a good example because it is both a criminal 

and an intelligence matter. 

Attorney General GONZALES. Senator, I think we have said publicly—if not, I guess I am saying it publicly—that the PATRIOT 

Act was not used in connection with the Brandon Mayfield case. 

The search was not conducted pursuant to Section 213. The question that you are raising is whether or not 218 is implicated in 

terms of, quite frankly, which change the purpose test from ‘‘the’’ 

purpose to ‘‘a significant’’ purpose. The truth of the matter is, the 

facts as I understand the Madrid bombing and the investigation 

with respect to Mr. Mayfield would have been an investigation that 

we could have pursued, quite frankly, irrespective of the change to 

the PATRIOT Act. It would have been—we think that it was a—

you could make the argument that the purpose of that investigation was for purposes of foreign intelligence. And so for those reasons, we disagree with the conclusion by the ACLU that the provisions of the PATRIOT Act were implicated in connection with that 

investigation. 

But again, I have only had a short period of time to review the 

letter. I do not have the letter with me. My staff is looking at it 

carefully. Obviously, when anyone alleges any kind of abuse, we 

consider it very, very seriously. We know you consider it equally as 

serious, and we want to be as responsive as quickly as possible to 

reassure you that in fact the Department’s actions have been consistent with the law. 

34

Senator FEINSTEIN. I guess what I would like to know, since this 

is an oversight hearing on that, whether the significant purpose 

test, you believe, at this stage is adequate—is it an adequate protection; if we should change it in any way 

Attorney General GONZALES. I truly believe it is important. I 

think it is adequate in that I think it has been successful in aiding 

the Department in its investigations, and so I do believe it is adequate. I do believe it is important, and I do believe that, again, as 

I said earlier in response to a question, in my judgment, the PATRIOT Act includes a lot of safeguards that critics of the Act 

choose to ignore. They don’t talk about the safeguards that do exist 

in the Act. 

I think they, as I said before, reflect a very careful balance between the security of this country and the protection of our civil 

liberties, and for that reason we wholeheartedly support the renewal of the PATRIOT Act. 

Senator FEINSTEIN. If I might ask you if you would take a look 

on pages 8 and 9 of the ACLU letter, they raise some specific 

cases—Michael Galardi, the case of a lovesick girl who planted 

threatening notes aboard a Hawaii-bound cruise ship, the case of 

Czech-born University of Connecticut grad student Thomas Faral, 

David Banash—and make the general allegation that sneak and 

peek, 213, was used almost exclusively outside of terrorism investigations. 

You might not be able to address those with specificity today. 

Attorney General GONZALES. I can say, Senator— 

Senator FEINSTEIN. If you can, that would be great. 

Attorney General GONZALES. Well, as to the specific cases you referred to, I would like the opportunity to go back and look at these 

carefully, but Section 213, the delayed notice warrant provision, 

was not limited only to terrorism cases. So the fact that that authority was used in connection with other kinds of cases doesn’t 

mean that we violated the law. 

Quite to the contrary, the Department acted pursuant to the law. 

We exercised authority that was granted by this Congress, but I 

welcome the opportunity to study these allegations further and we 

will report to you as quickly as we can. 

Senator FEINSTEIN. I appreciate that. Thank you. 

Mr. Mueller, let me ask you this question. I am concerned—and 

I have asked this question of you before—that there is insufficient 

understanding of the difference between intelligence and law enforcement. 

How many senior DOJ officials who are running national security today are professional intelligence officers? 

Director MUELLER. We have not had a certification program in 

the past. So in terms of a certified intelligence officer, we do not 

have anybody. We are in the process of establishing a certification 

program. 

I would have to get back to you in terms of numbers of persons 

at the top levels who have spent a substantial amount of time in 

either counterintelligence or throughout their careers have spent 

time in the intelligence community, whether it be a year or two at 

the CIA or had some form of training that would qualify them to 

be a certified intelligence officer. 

35

Senator FEINSTEIN. Just quickly because my time is up, could I 

ask the same question of you, General, please? 

Attorney General GONZALES. I don’t know the answer to that, 

Senator, but I would be happy to get that information for you. 

Senator FEINSTEIN. Mr. Chairman, I think this is a real problem. 

I suspect the answer is zero. Going back to the Rob Silberman report and putting on my Intelligence Committee hat, I think there 

is a growing view that there needs to be a specific national security 

division under an assistant attorney general for national security 

which is really intelligence-driven. 

The question comes really whether you can change the culture 

sufficiently, and I asked this question at a prior hearing and the 

answer has always been zero. And the question comes whether we 

can really get in this country that corollary to MI–5 with the structure that is set up today. I thought originally that we can. I must 

say I am beginning to doubt it now. The fact that this new commission once again came up with that same recommendation is something we need to look at. 

Thanks very much. 

Chairman SPECTER. Senator Feinstein, I think you have put your 

finger on a very critical issue. The commission recommended a national security division for both the FBI and the Department of 

Justice, and that is a subject which I plan to take up in the next 

round and I think it is a very important subject to be discussed. 

Senator FEINSTEIN. Thank you. 

Chairman SPECTER. Senator Coburn was just here, but we will 

go to Senator Cornyn. 

Senator CORNYN. Thank you, Mr. Chairman. 

Gentlemen, we are talking, of course, about the PATRIOT Act, 

but I want to pull back a little bit more and look generally at our 

efforts to protect America from terrorist attacks and specifically 

talk about the border. This causes me a great deal of concern, and 

let me explain. 

While I think we have done a great job since 9/11 upgrading our 

means of determining who can come into the country and why they 

are here through the implementation of the US VISIT program, upgrading the quality of documents, identifying people who are presenting fraudulent documentation and the like, I fear that we are 

not doing what we need to be doing between the bridges and outside of the airports. Let me just explain. 

A few weeks ago, I flew with a Border Patrol agent in Laredo, 

Texas, down the Rio Grande River and landed on the World Trade 

Center Bridge, and asked about whether he was receiving the kind 

of support they needed in order to do their job. He said no, that 

because of demands along the Arizona border, the Texas border 

was seeing a move of equipment and personnel to Arizona. 

He said, what I fear is that the human smugglers are smart 

enough—and it is not just human smugglers, it is human traffickers, it is drug dealers, money launderers, arms dealers and the 

like—to move to a different part of the border and our borders are 

way too porous. 

So I would just like to get your opinion, General Gonzales, on 

whether this is a concern of yours from a terrorism point of view, 

36

from a national security point of view, the porous nature of our borders. 

Let me just mention one little footnote. On my most recent trip 

to Laredo, I was also provided with some documentation in the way 

of pictures of juice boxes with Arabic writing on the juice boxes 

that did not come from that area where the person was detained 

and where the juice boxes were obtained, and also a jacket with Arabic writing on it, some of a jihadist nature, including a patch 

showing a plane flying into a large building. These were just a couple of the sorts of things that are being obtained in the course of 

detaining people coming across our border from Mexico. 

So I would just appreciate your general observations, Attorney 

General Gonzales, about whether you are concerned about that 

from the standpoint of protecting America from terrorist attacks. 

Attorney General GONZALES. Well, of course, I am concerned 

about opportunities that terrorists have to come into this country. 

There is a tension between the principles that we hold dear about 

being an open society, encouraging immigrants into this country, 

and also the principle of defending this country against terrorists 

that come to this country simply to do evil. 

Like our President, I come from your State, Senator, that borders 

Mexico. We understand the realities of life along the border communities where people come back and forth everyday not to do 

harm, but simply to provide for their families. So an immigration 

policy, in my judgment, has to be reflective of that reality as well. 

So you have got these competing tensions of the reality of life 

along the border, the need to protect this country, and also I think 

the principle which many of us believe in and that is that if we 

have immigration laws, they should be enforced. That should be, of 

course, a principle that we all support. 

So to answer your question, am I concerned about it, of course 

I am concerned about it, even though the responsibility regarding 

immigration enforcement now lies within the Department of Homeland Security. I know that Secretary Chertoff shares the same concern and he is working as hard as he can, along with the rest of 

us, to try and address this problem. 

Senator CORNYN. Let me ask you, would it make your job and 

Director Mueller’s job easier if, in passing comprehensive immigration reform, we were able to distinguish between people who wanted to come to the United States and work on a temporary basis and 

then return to their home country—distinguish between those people and those who want to come here to kill us? 

It just strikes me as a logical matter that, given the limited resources of law enforcement, no matter how vast people may think 

the Department of Justice is and how vast the Federal Government’s resources are, would it help if you were able to concentrate 

on people who were likely threats to American security, as opposed 

to people who wanted to come here to work under some legal 

framework? 

Attorney General GONZALES. Of course, it would help that we 

know who is coming across our borders and the reason that they 

are coming into this country. The President has proposed a worker 

program that contemplates providing some kind of legal status to 

37

certain people who meet certain qualifications, and I think that is 

consistent with the approach that you are thinking about. 

Senator CORNYN. Director Mueller, let me just ask—consistent 

with, I think, the questions that Senator Leahy was asking, I am 

very interested in the Freedom of Information Act. He and I have 

cosponsored a couple of bills that we are hopeful of getting action 

on in the Committee and then on the floor. 

Specifically, I am concerned about why would you see three different versions of the same e-mail with different decisions made 

about redaction. It concerns me that it may be just happenstance 

who requests what at what time, and we lack any coordinated effort to determine exactly what statutory exemptions do apply and 

to make sure that those are uniformly applied to each and every 

request for the same information. 

Director MUELLER. I would have to go back and look at how the 

various iterations were developed. I do know there are different 

standards for FOIA. There may be different standards for classification. I don’t know to what extent in this sequencing either one 

or the other kicked in to address one or more of the provisions. I 

would have to get back to you on that. 

Senator CORNYN. Well, I would appreciate when you are responding to Senator Leahy’s questions about that if you would also include a response to that. I would like that both from General 

Gonzales and Director Mueller because I think getting some systematic, uniform response in a predictable way that provides people the information they are entitled to, while protecting information that is entitled to a legal exemption, is important. 

Thank you. 

Chairman SPECTER. Thank you, Senator Cornyn. 

Senator Leahy commented that someone had two rounds before 

one. We have had a practice of alternating between the parties. I 

know we go to Senator Durbin next, but maybe we ought to rethink 

the issue as to whether we avoid the alternation in the interest of 

giving people a first round. I will give due consideration to that. 

Had we done it earlier, you would have been up sooner, but it 

is your turn now, Senator Durbin. 

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

FROM THE STATE OF ILLINOIS 

Senator DURBIN. Thank you, Mr. Chairman. 

Thank you, Attorney General Gonzales and Director Mueller, for 

being with us today. I think we should start this conversation 

about the PATRIOT Act, this dialogue, by acknowledging the obvious. Let’s be honest. We passed the PATRIOT Act at a moment 

when our Nation was gripped with high emotion and fear. 

History tells us that we don’t do our best work under those circumstances. I think we know that we don’t enact laws with adequate and careful consideration under those circumstances. Sadly, 

history tells us we often err on the side of expanding the power of 

government at the expense of individual rights and liberties. 

That is why if there was any wisdom in this PATRIOT Act, 

which I voted for, it was the sunset provision which said we will 

revisit these things; we will determine whether or not we are 

caught up in the emotion of the moment and have gone too far. 

38

I think it was in that spirit that Senator Craig and I took a look 

at the PATRIOT Act and suggested the SAFE Act, which does not 

repeal or abolish the PATRIOT Act, but adds what we consider to 

be thoughtful provisions which are going to make it more specific 

in what it sets out to do, and more protective of the rights of individuals. 

Now, if you search the political spectrum in the Senate, you will 

probably find no two Senators farther apart than Senator Craig 

and myself, and you will find the groups supporting our SAFE Act 

as diverse as well, from the American Conservative Union to the 

American Civil Liberties Union. 

So I am heartened by your opening statement, Attorney General, 

about being open to suggestions and ideas. It is a grand departure 

from your predecessor and I think it is the right spirit for us to address the PATRIOT Act. And I would commend to you, as I am 

sure Senator Craig would, the provisions which we are offering. 

There are two things which I would like to speak to specifically 

about the PATRIOT Act and what has been said this morning. The 

very first reason, Attorney General, that you gave for the PATRIOT Act was to enhance the Federal Government’s ability to 

share intelligence. That is an absolute necessity for our defense of 

America in the war on terror. 

But most honest observers will tell you that to suggest that the 

only way we can expand the sharing of information and intelligence 

is to expand the power of government, or to at least move perhaps 

too far when it comes to individual rights and liberties, overstates 

the obvious. 

We now know, well documented by investigation after investigation, that there was a bureaucratic turf war in many agencies 

which stopped them from sharing information. Director Mueller 

has devoted more hours than he can count to improve the outmoded technology he inherited after 9/11 so that information systems could communicate. 

The point I would like to make is this: If the goal here was, as 

you say, to enhance the Federal Government sharing intelligence, 

we could have stayed away from the PATRIOT Act altogether and 

really focused on the agencies working with one another and sharing information so that the Phoenix memo wouldn’t be buried in 

the depths of the FBI and so that the CIA and all the other agencies would communicate. 

So before we go to challenge in any respect the Bill of Rights, I 

think we had a lot of homework to do when it came to the management of information in the Federal Government. Maybe this new 

intelligence reform will move us in a more positive direction. 

The second thing I would like you to address is Section 215, 

which has caused great pain for people in many communities. The 

American Library Association, not historically a politically active 

group, has become very active because they believe the PATRIOT 

Act went too far. 

They believe, for example, if an FBI field office believed that an 

unidentified terrorist had checked out a book entitled How To 

Build a Dirty Bomb from the Chicago public library, Section 215 

gives the Government the authority to search the library records 

of hundreds of ordinary citizens in an attempt to identify the terVerDate 0ct 09 2002 12:04 Nov 04, 2005 Jkt 024293 PO 00000 Frm 00044 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\24293.TXT SJUD4 PsN: CMORC
39

rorist, catching in this net innocent people who have checked out 

books in a library, never knowing that they would be swept in the 

potential of finding a terrorist. 

Similarly, if an FBI field office came up with information that 

the wife of a suspected terrorist had an abortion, therefore they 

would set out through Section 215 to search the records of a hospital or clinic for all the women who had received an abortion, 

whether or not they might have been associated with any terrorist 

activities. Section 215 allows all of that information to be gathered 

in secret through the FISA court and many innocent people to have 

their privacy compromised in the process. 

Now, often, it is said that we should stop and consider that it is 

just like a grand jury subpoena, but it is not. There are significant 

differences. The recipient of a grand jury subpoena can challenge 

the subpoena. That is not the case here. The Government must 

make a showing with a grand jury subpoena of the need before a 

gag order is imposed. That is not the case here. 

The Section 215 provision of the PATRIOT Act is in secret, and 

the recipient of the subpoena can challenge the gag order, which 

can’t be done under Section 215. So the analogy breaks down completely when you try to argue that this is just a routine process like 

a grand jury subpoena. 

So I wish you would address Section 215 in that context. If, in 

fact, the records of a library should be protected and are somehow 

sacred, can the same not be said for medical records and other 

business records that might be swept up in the same Section 215 

effort? 

Attorney General GONZALES. Thank you, Senator. You bring up 

some, I think, good points. Obviously, Section 215, in my judgment, 

has been subject to a great deal of misunderstanding, and let me 

repeat what I said earlier. This Department and the Government 

has no interest in the library reading habits of ordinary Americans. 

We do believe, however, that libraries should not become safe havens for people who are here in this country and do want to do 

harm to other Americans, and we do have evidence of that happening even though Section 215 has not been used in connection 

with library records. We do know that there have been examples 

of terrorists who are using access to computers at libraries. 

As I said in my statement, we do believe that there is an inherent right, but would support a change in the law to allow specific 

challenges to a Section 215 order, and would support changes in 

law that would allow someone to talk to an attorney in connection 

with preparation of that order. 

My own sense is that there are sufficient safeguards that many 

people choose to ignore, and that is let me just mention a few. This 

is not just the Government making this decision. We have to go to 

a Federal judge. That judge— 

Senator DURBIN. But Section 215 requires the judge to issue the 

order. It is required. I can read it to you, but I know you are familiar with it. The language says specifically, ‘‘Upon application made 

pursuant to this section, the judge shall enter an ex parte order.’’ 

There is no discretion. 

Attorney General GONZALES. Once the U.S. Government presents 

information meeting the relevant provisions of the statute, you are 

40

right; the law does provide that the judge shall issue the order. But 

I quarrel with those who have characterized this as a rubber-stamp 

operation. We provide information to the judge. Judges often ask 

questions. Judges often ask us to go back and get information. We 

provide that information and then the judge makes the decision. 

Senator DURBIN. The information is not individualized. That is 

my concern and Senator Craig’s concern. You are not talking about 

a person suspected of; you are talking about a potential group of 

people that includes many innocent people. It is as if you said we 

have the authority to arrest and search large groups of people in 

hopes of finding one criminal. 

Under our system, there is more particularity required, is there 

not? And Section 215 does not include that. 

Attorney General GONZALES. There is, in our judgment, a relevance standard that should be applied in connection with 215, relevance to terrorist activity or an intelligence investigation. 

Senator DURBIN. But is it individualized? Is it individualized? 

Attorney General GONZALES. It is certainly applied as narrowly 

as we can, and people have the opportunity, Senator, after the 

fact—if the information is going to be used in any way in any kind 

of proceeding, they have the opportunity to go to another judge and 

contest the collection of that information. 

Finally, I might remind you that we do have an obligation upon 

the Department to provide semi-annual reports about the exercise 

of this authority. So it is not true that the Department is using this 

authority in secret. 

Senator DURBIN. Do you provide that information to the Judiciary Committee? 

Attorney General GONZALES. I don’t know if it is— 

Senator DURBIN. The answer is no. You give it to the Intelligence 

Committee. You don’t provide the information to the Judiciary 

Committee, as I understand it. Is that correct, Mr. Chairman? I see 

my time is up. 

Chairman SPECTER. Well, we are counting this on your second 

round, Senator Durbin. 

Senator DURBIN. I am going to stop, then. Thank you very much. 

Chairman SPECTER. You are well into your second round, but we 

kept you waiting a long time. So under equitable considerations, we 

are giving you that extra time. 

Senator DURBIN. Thank you. Thanks for stopping me, too. 

Chairman SPECTER. Besides that, you are on a subject of great 

concern to the Chairman. 

Senator DURBIN. Well, many of my colleagues are waiting to ask 

and I won’t dwell on it, but I wish we would receive more particular information than generic numbers. I think it might be more 

helpful. 

Thank you very much. 

Chairman SPECTER. Senator Leahy. 

Senator LEAHY. Well, I agree with the Senator from Illinois. We 

might have reports, but, one, if we get them, usually we get them 

late, if we get them at all, and oftentimes they are meaningless. 

The fact is, no matter how much a judge might ask questions, the 

law says he shall give the order. 

41

I thought we left some of my questions up in the air earlier. And 

that may have been the time constraints, so let’s just go back to 

it. Going back to the 2001 State Department report on Iraq which 

was talking about Saddam Hussein, it says the security services 

routinely and systematically tortured detainees. According to 

former prisoners, torture techniques included branding, electronic 

shocks administered to the genitals and other areas, beating, pulling out fingernails, burning with hot irons and blow torches, suspension from rotating ceiling fans, breaking of limbs, and denial of 

food and water. 

Now, under those circumstances, suppose we had had a detainee 

here and we had Saddam Hussein’s assurances that he would not 

be tortured if he was rendered back to Iraq. Does anybody think 

we would have rendered him back? We would not have relied on 

his assurances, would we? I realize it is a hypothetical, but I can’t 

imagine we would. 

Attorney General GONZALES. Senator, I think you present sort of 

an extreme hypothetical. Obviously, we would look carefully at the 

record of the country in terms of how they have dealt with other 

individuals that they are holding in their custody. We would look 

at the record of the other country in how they have met their other 

commitments to this country. 

Senator LEAHY. Before we get too far into the hypothetical, are 

you suggesting that there is anybody in any administration that 

would have rendered somebody back to Saddam Hussein under his 

assurances? 

Attorney General GONZALES. I am not suggesting that, no, sir. 

Senator LEAHY. Okay, so let me ask you about another area. We 

have, however, relied on assurances from Uzbekistan that they 

would not torture detainees transferred from U.S. custody. Now, I 

am going to read somewhat similar words to cover the 2004 State 

Department human rights report on Uzbekistan. 

Quote, ‘‘Police, prison officials and the NSS allegedly used suffocation, electric shock, rape and other sexual abuse. However, beating was the most commonly reported method of torture. Authorities 

frequently and systematically applied torture, including severe 

beating, suffocation and electric shock.’’ 

Do you think that Uzbekistan’s promise that they would not torture detainees is trustworthy or even credible? 

Attorney General GONZALES. I think a country that would have 

that kind of record, we would have to receive some very special assurances to satisfy ourselves in meeting our legal obligations that 

it is more likely than not that someone that we sent over in their 

custody would not be tortured. 

Senator LEAHY. Well, the President in his March 17 press conference was asked a question and he declined to answer. Perhaps 

you can answer it. What is it that Uzbekistan can do in interrogating an individual that the United States cannot? 

Attorney General GONZALES. What is— 

Senator LEAHY. What is it that Uzbekistan can do in interrogating an individual that we might send there that the United 

States cannot? 

42

Attorney General GONZALES. I don’t know how to answer that 

question, Senator. I do know that the policy of this country is that 

we will not engage in torture or condone torture. 

Senator LEAHY. I know that. We are not going to condone torture. We have this unmarked—actually, ‘‘unmarked’’ is probably 

not the best way to describe the CIA planes because you can go on 

the Internet and you can find out which places they have landed 

and taken off. They won’t tell us, but you can easily find it on the 

Internet. 

We say we won’t torture this person, but we put him on the 

plane and send him to a country that does torture. I am not sure 

that we really have standards. I mean, if our standards are to rely 

on their assurances that they won’t torture somebody, do you really 

think, with some of the countries that we send detainees to, that 

that is an adequate assurance? 

Attorney General GONZALES. Well, again, Senator, we take this 

obligation very, very seriously and we know what our legal obligations are. We know what the directive of the President is, and each 

case is very fact-specific. 

Senator LEAHY. That is going to be great comfort to the Canadian citizen sent to Syria and then being tortured. 

Attorney General GONZALES. Senator, with respect to that particular case, I think he was—he wasn’t rendered. I believe he was 

deported. 

Senator LEAHY. He was not allowed to continue to Canada once 

he got into the United States, even though he was a Canadian citizen. 

Attorney General GONZALES. He was also a Syrian citizen, I believe, sir. 

Senator LEAHY. I know. A lot of people have dual citizenship, but 

if he had had a dual citizenship with a lot of other countries, we 

would have sent him on to Canada. 

Would you support legislation to make diplomatic assurances an 

insufficient basis for determining that a detainee would not be in 

danger of being tortured if he was rendered to another country? 

Attorney General GONZALES. Senator, I would certainly consider 

legislation. I believe that the administration is currently meeting 

its legal obligations. 

Senator LEAHY. In mid-January, you opened a wide-ranging investigation into reports from the FBI about the military’s use of coercive and abusive tactics against prisoners held in American custody at Guantanamo Bay and in Iraq. 

What is the scope of the investigation and when is it expected 

to be concluded? 

Attorney General GONZALES. Senator, there are, as you know, a 

series of investigations about the potential abuses that have occurred in various theaters of operation. Some investigations are 

here in Congress, some within DOJ, some within DOD, some within CIA. All those are at various stages of progression. 

I have asked folks within the Department to try to get a sense 

of where things stand. I have already received one report and I am 

waiting for additional information to get an assessment of how 

these investigations stand. 

Senator LEAHY. Will you let us know when you hear? 

43

Attorney General GONZALES. I will be happy to share with you 

what I think I can, sir. 

Senator LEAHY. Director Mueller, has the FBI transferred detainees to other countries, and if so, which countries? 

Director MUELLER. I don’t believe so, in the context in which you 

are saying it, which I presume is— 

Senator LEAHY. No, not in the context in which I am saying it. 

Have you transferred detainess to other countries? 

Director MUELLER. I don’t believe so. 

Senator LEAHY. Will you double-check that? 

Director MUELLER. Yes. 

Senator LEAHY. I am not asking about a country that might torture or not. I am just asking if you have transferred detainees to 

other countries. 

Have you been asked to? 

Director MUELLER. I would have to get back to you on that. I 

don’t believe so. 

Senator LEAHY. If you are asked to, do you have a process of determining whether the person may be tortured if they are sent to 

another country? 

Director MUELLER. We would do that in conjunction with the Department of Justice and with the Immigration Service if that is indeed the case. 

Senator LEAHY. The Weapons of Mass Destruction Commission 

report says, we have been assured that it is currently the case that 

the Attorney General personally approves any interrogation techniques used by intelligence agencies that go beyond openly published U.S. Government interrogation practices. 

Is that accurate? 

Attorney General GONZALES. I can really speak with certainty 

about the actions of this Attorney General, Senator Leahy, and I 

can say that I am personally involved in providing— 

Senator LEAHY. Can or cannot say? 

Attorney General GONZALES. I can say that I am personally involved in providing legal analysis and legal approval with respect 

to techniques. 

Senator LEAHY. Have you personally approved the use of any extraordinary interrogation techniques? 

Attorney General GONZALES. There has been no decision to date 

with respect to that, sir. The answer to your question is, no, I have 

not. 

Senator LEAHY. Thank you, Mr. Chairman. I will have other 

questions later. 

Chairman SPECTER. Thank you, Senator Leahy. 

It is now almost noon. As announced earlier, we would run until 

one and come back this afternoon. We have a little more than an 

hour until one o’clock, so we have time for eight rounds. Perhaps 

we will be able to finish by one o’clock. I know that would be a relief to the Attorney General and to the Director, who have a lot of 

other duties, and also to members. So we will see how we progress. 

Senator Hatch. 

Senator HATCH. Thank you, Mr. Chairman. 

One of key challenges in fighting terrorism is to share information among various governmental agencies. This was one of the 

44

central conclusions of the 9/11 Commission report. The recent 

WMD Commission report also made this point and singled out the 

FBI as an entity that could do better in sharing information. 

I think that there is widespread agreement that one of the major 

benefits of the PATRIOT Act was, as both of you have noted in 

your testimony, the manner in which Sections 203 and 218 acted 

to take down the wall that had previously existed between intelligence and law enforcement personnel. 

I would like both of you to tell the Committee about the efforts 

underway by each of you personally and your agencies to see that 

information is shared across the Federal Government, as well as 

with relevant State and local law enforcement officials and appropriate international partners in our worldwide battle against terrorism. In particular, I would like both of you to tell us how you 

share information with the CIA and other agencies within the intelligence community. 

Let me also say that I recognize that Ambassador Negroponte is 

not yet been confirmed as Director of national Intelligence, but I 

would like to know how you personally and institutionally plan on 

working with him and his office, with CIA Director Goss and with 

Secretary Chertoff, as well, to make certain that President Bush 

and other decisionmakers have all the available information they 

need and that the Congress can be assured that the DOJ and FBI 

are sharing information in a timely and comprehensive manner. 

So if you could both talk to that, then I have maybe one other 

question. 

Director MUELLER. Let me just start with what we have established since September 11th. We started with a small intelligence 

office and have now built it into an intelligence directorate with 

several thousand intelligence analysts. One of the components of 

that is the development of reports officers. At last count, I had 

something like 183 reports officers whose responsibility it was to 

take information, strip off the sources and methods, and distribute 

that information and disseminate that information throughout the 

community, whether it be the intelligence community or State and 

local law enforcement, DHS. 

So as opposed to the presumption prior to September 11 that you 

did not disclose something unless there is a good reason, the presumption now for us is you disclose unless there is a good reason 

not to disclose. 

They will field intelligence groups in every one of our field offices. Those field intelligence groups include analysts and agents 

whose responsibility is to gather intelligence, but to do assessments 

as well as disseminate intelligence. So within the FBI we have developed a structure that we are still—I would agree with the Commission that we are still in the process of building it. We are not 

where we need to be, and we have a ways to go. But we are in the 

process of having an intelligence directorate that includes analysts, 

surveillance officers, language specialists, targeting officers, agents 

that will perform that intelligence function. 

With regard to the DNI, we would expect from the DNI, from Mr. 

Negroponte, taskings with reporting back, taskings to fill gaps that 

are perceived in the intelligence that is necessary to be gathered 

within the United States. 

45

With our fellow agencies, we have—as I indicated before, we 

have the national Counterterrorism Center, which combines access 

to all of our databases. There is access to the FBI databases, the 

CIA databases, DHS databases, DOD databases in this particular 

national Counterterrorism Center. We also have colocated elements 

of our counterterrorism division with comparable elements of the 

CIA and others so that they are sitting side-by-side, which will give 

us better coordination on transnational intelligence operations. 

That is a baseline that we have established for the exchange of information. We still have a ways to go, but I think we have made 

substantial strides. 

Senator HATCH. I think you are doing a terrific job up to that 

part, so I asked the question. I wanted to make sure that this is—

I know you have had some criticisms, some of them unjust, some 

that may be just, in the sense that you are still not there. But you 

are working at it very hard. 

Let me just ask you both another question. I understand that the 

ACLU has run a television advertisement claiming that Section 

213 of the USA PATRIOT Act allows law enforcement to search our 

homes ‘‘without notifying us,’’ implying that this provision gave 

Federal law enforcement the authority to conduct searches without 

ever providing notice to the individual whose property is searched. 

I would like to know if this is an accurate description of the socalled what you have criticized, I think adequately, search-andpeek, to use their language, provision. And am I correct in reading 

your report yesterday, this provision has only been used 155 times 

since 2001? 

Attorney General GONZALES. The ads are incorrect. We are required by law to provide notice in each and every case. 

Senator HATCH. So. So this is just typical of the efforts made 

against the USA PATRIOT Act. Am I correct? 

Attorney General GONZALES. You are correct in that we are required to provide notice, Senator Hatch. 

Senator HATCH. Okay. Well, Attorney General Gonzales, I take 

it from your testimony that you would not be averse to writing into 

Section 215 an explicit relevancy standard. As I understand it, you 

believe a probable cause standard to be too high a burden in the 

investigatory stage, and at our fielding hearing in Utah last year, 

Deputy Attorney General Comey suggested that the relevancy test 

was de facto employed by judges under Section 215. So I am 

pleased that you have signaled today that the Department is prepared to make what has been implicit explicit. 

So I just want to compliment you on that and compliment both 

of you. You have tough jobs. It is easy to sit back and take cheap 

shots at you, as many have done. But you folks have done as good 

a job as anybody in my 29 years now in the United States Senate 

has done, and you, General, in the short time you’ve been in there, 

but you, Director, have been in there ever since right after 9/11. 

And I just want to compliment both of you. We all know that 

things are never going to be perfect, but by gosh, you have both 

tried your very best to get them as perfect as you can and I want 

to personally let the whole world know just how good you really 

are. 

Director MUELLER. Thank you. 

46

Attorney General GONZALES. Thank you. 

Chairman SPECTER. Thank you, Senator Hatch. 

Senator Feingold? 

Senator FEINGOLD. Thank you, Mr. Chairman. 

First, with regard to the point that Senator Hatch was making, 

it is certainly accurate that the statute under Section 213 does provide that there has to be notice within a reasonable period. But I 

do want it noted that that opens the possibility of a much longer 

period of time than what the various circuits have suggested. I understand that the three circuit courts have suggested 7 days. So 

the concern here is that it is a vague, potentially unlimited period 

for notice and I just want that noted in the record. 

Attorney General GONZALES. May I make a comment to that, 

Senator? I am told that the average time in which case the delay 

occurs is between 30 and 90 days. The other thing that I think people need to remember is that this is a determination by a Federal 

judge as to what is a reasonable period of time, depending on the 

circumstances that that judge is confronting. 

Senator FEINGOLD. Let me move on. Mr. Mueller, just a quick 

follow-up on Section 215. The Attorney General said, I am sure accurately, that Section 215 has not been used to obtain library 

records. But I believe you mentioned earlier that libraries have voluntarily cooperated with the FBI, making it unnecessary to use 

Section 215. Can you clarify that? It sounds like they have given 

up library records, but you did not need to compel them under Section 215. 

Director MUELLER. That is true. I mean, we have had in circumstances where librarians understand the, I would say, discreet 

inquiry and we’ve had occasions where, several occasions where in 

the course of terrorism investigations we have had to obtain library 

records. I only make that point to say that because we have not 

been forced to go to 215 does not mean that we have never had occasions where we have needed to go and obtain library records. 

Senator FEINGOLD. I think that is an important clarification. 

Now it is clear on the record that library records have been obtained pursuant to these investigations. There are people out there 

on both sides distorting this issue, and I am pleased to say that 

it can no longer be said that library records have never been obtained, although not under the force of Section 215. But they have 

been obtained pursuant to investigations—voluntarily requested 

and obtained pursuant to terrorist investigations. 

Director MUELLER. Yes, and on other occasions there had been 

sufficient predication for a possible criminal charge so that it may 

have been under the force of a grand jury subpoena. 

Senator FEINGOLD. General Gonzales, as you know, the PATRIOT Act expanded the FBI’s authority to obtain real time noncontent information about telephone and computer communications 

by making it easier to obtain pen register and trap and trace device 

orders by clarifying that the pen trap authority applies to the 

Internet as well as to phone communications. It makes sense to 

apply the same rules to all types of communications, especially as 

technologies converge. 

The line between content and non-content information is simply 

harder to draw, as you know, in the context of Internet communicaVerDate 0ct 09 2002 12:04 Nov 04, 2005 Jkt 024293 PO 00000 Frm 00052 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\24293.TXT SJUD4 PsN: CMORC
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tions. In the telephone world, it is somewhat easier. The phone 

numbers dialed are not content but the actual conversation is; but 

in the Internet world there are gray areas. For example, it is unclear whether a URL, which indicates exactly where a person has 

gone on the Internet, is content that requires a full wiretap order. 

I understand from Deputy Attorney General Comey’s recent responses to congressional questions that the Department requires 

field agents encountering these gray areas with regard to the use 

of pen traps to consult with Main Justice. 

How does the Justice Department evaluate whether an aspect of 

Internet communications such as a URL constitutes content under 

the statute? 

Attorney General GONZALES. Senator, this is a very—for me, because of my limited computer knowledge—complicated area. And 

you are right, it does raise, in my judgment, complicated questions. 

And I think it is appropriate to ensure that content is not being 

collected whenever the authorities under 214 are used. I do not 

have a specific answer for you. I can get that information for you. 

But I wanted to reassure you that, first of all, to acknowledge what 

we all know, and that is that this is a very—can be a complicated 

question; and also to reassure you and the rest of the Committee 

that we care very much about ensuring and having in place mechanisms so that we are not collecting content. Because that is not—

214 is not about collection of content. 

Senator FEINGOLD. Thank you, General. I look forward to working with you on that issue. 

Director Mueller, I understand that FISA evidence is far more 

frequently introduced in criminal prosecutions in the post-September 11th, post-PATRIOT Act era. Is that a correct statement? 

Director MUELLER. I would have to check on that. It may well 

be. I do not have any way of knowing it without going back and 

actually looking at that and trying to determine what the incidence 

was beforehand and the incidence afterwards. 

Senator FEINGOLD. Well, that is my understanding. We can talk 

about the specifics of it later. But I also understand that because 

of the strict standard currently in FISA, no criminal defendant has 

ever gotten access to the underlying surveillance application or 

order. That stands in sharp contrast to the introduction of criminal 

wiretap evidence at trial, where the wiretap law requires, of course, 

that defendants receive the full application and order so that they 

have the opportunity to challenge the underlying basis for that 

order. Is that a correct statement, that there is this difference between FISA and normal—? 

Director MUELLER. Yes, that is a correct statement. But there is 

a judge that reviews it. In other words, a trial judge does review 

the adequacy of the presentation under the FISA laws for the 

issuance of the FISA order. So it is not as if it is not reviewed. It 

is reviewed by the trial judge. 

Senator FEINGOLD. Fair enough, but if secretly collected FISA 

evidence is going to be increasingly used in criminal trials, I think 

we have to provide defendants with adequate opportunity to contest those orders. While your agents do a very good job, we also 

know that sometimes they make mistakes. People like Brandon 

Mayfield have been incorrectly targeted. And the FISA court, which 

48

also does an excellent job, does not benefit from an adversary process. Would you agree that before FISA evidence is used to prosecute people and put them in jail, defendants should get access to 

the reasons the Government had for secretly wiretapping their 

phone conversations or searching their homes, taking into account 

the need to protect classified information? 

Director MUELLER. No, I would not. 

Senator FEINGOLD. You do not agree that they should get—

Director MUELLER. No. I would say that the judge who is in 

charge of the case should review the application. It is not just the 

evidence that may be presented, it is the capabilities we might 

have, all of which, in my mind, in the interests of national security, 

need to be protected. And I do believe that the trial judge who is 

evaluating the case against the defendant is in an appropriate position to balance the national security needs against the request of 

the defendant and his counsel to have access. 

Senator FEINGOLD. Well, my time is up, but let me simply say, 

Director, I hope we can continue talking about this. I am not suggesting the judge should not play that role, but I am suggesting 

that the defendant should have a right to have the basic information he needs to let the judge know what his side of the case is so 

the judge can do the proper balancing. 

Director MUELLER. Well, I think in the context of the criminal 

case, the defense counsel can and have—

Senator FEINGOLD. I am talking about the FISA. 

Director MUELLER. About FISA. They understand that if FISA is 

out there, they are—they know the case against them. They are absolutely, and have in the past filed arguments as to why they 

should have access to the FISA. And the court has reviewed those 

and found them wanting. 

Senator FEINGOLD. What I understand is they are not given adequate information to know that, but we will take that up another 

day. Look forward to working with you. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you, Senator Feingold. 

Senator Sessions? 

Senator SESSIONS. Director Mueller, the principle that we worked 

on for many years in this country—it is fairly settled—is expectations of privacy. Courts have asked that question, fundamentally 

where there is not an expectation of privacy, subpoenas are adequate; where there is an expectation of privacy before the subpoena 

or administrative or grand jury is issued, the court must approve 

it, and that becomes a warrant requirement. Now, under FISA, I 

think you have made it pretty clear but I think it is important for 

us to talk about it one more time. Under FISA, the only thing that 

is unusual here is that the person on whom the subpoena is served 

does not have a right to object and go to court over that, because 

it is presumptively dealing with national security in a matter of 

sensitivity. Is that correct? 

Director MUELLER. That is correct, sir. 

Senator SESSIONS. But before that—but the review is conducted 

before the subpoena is issued. A judge must approve that kind of 

subpoena before the FISA must approve it, before it is issued. Is 

that right? 

49

Director MUELLER. Correct. 

Senator SESSIONS. But normally under grand jury subpoena or 

an administrative subpoena, a recipient of that can object and 

move to quash the subpoena and not produce the documents. Is 

that right? 

Director MUELLER. That is correct. 

Senator SESSIONS. So under these administrative subpoenas that 

the FBI has been giving under the Privacy Act, if someone thinks 

they should not produce the records, they can object and having a 

hearing on it, and not produce the items. 

Director MUELLER. That is correct. 

Senator SESSIONS. And not produce the items. Administrative 

subpoenas, again, are very common in the history of our country 

and existed all the time I was a prosecutor. Would you explain 

some, list some of the examples where administrative subpoenas 

are available today in non-terrorist cases, far less serious cases 

than these? 

Director MUELLER. I think there are a number of various agencies that have—I think somebody mentioned the FDA already, but 

in narcotics cases, in health care fraud cases, in child pornography 

cases, sexual exploitation cases. You can rattle off a number of 

cases or areas in which administrative subpoenas have been accorded by the Congress understanding the necessity of getting that 

information and providing to the individual upon whom the subpoena is served the opportunity to contest it if they so desire. 

The one point I would make is that these are subpoenas to third 

parties for records and the like. These are to third parties for 

records and the like. 

Senator SESSIONS. That would require somebody to produce 

something out of their home, out of their locked glove compartment, inside a letter that has been addressed to them. All of those 

require a court-ordered warrant on probable cause, not relevance. 

Director MUELLER. Correct. 

Senator SESSIONS. Is that right? 

Director MUELLER. That is correct. 

Senator SESSIONS. You are looking, I think— 

By the way, do you know of any law—of course, under this act, 

libraries are not mentioned in any way, shape, or form by name, 

are they? 

Director MUELLER. No, not at all. 

Senator SESSIONS. Do you have any citations for your authority 

that there’s a sanctity of the library? 

Director MUELLER. I meant to say that there is perceived-by—librarians sanctity. I do not believe that it is written in the law anyplace. 

Senator SESSIONS. Well, they are not—I understand their desire 

to avoid unnecessary perusal of people’s library records, but I am 

certain, as you said, that the FBI has no desire to scan everybody’s 

library records. They have more to do than that. 

Now, there is a question about, under certain circumstances, the 

ability to forbid disclosure. It used to be banks and hotels and motels would produce documents and the agent or the local police detective would ask them not to tell the person because they were 

conducting an investigation, and they would not. My understanding 

50

from my experience in prosecuting is that more and more lawyers 

have told these banks and motels and other businesses that they 

can or should report any subpoena of the person’s record. And this 

could have a very damaging impact on a very sensitive investigation, could it not? 

Director MUELLER. Without a question of a doubt. The disclosure 

of interest in an individual who is being targeted prior to indictment would result in the destruction of evidence quite often, perhaps a fleeing from the jurisdiction, and avoiding justice as a result 

of a filing of an indictment and charges once the investigation is 

complete. 

Senator SESSIONS. Now, Mr. Mueller, let us say you are investigating a terrorist cell in an area of this country and you have 

probable cause to believe that there is legitimate approval of probable cause to believe that at least one or more individuals have 

critical evidence inside a motel room. Can you explain to the average American why it might be necessary in the course of that investigation not to immediately disclose to the renter of that motel 

room that you have been in the room to examine whether or not 

evidence is there that might identify other people or the crime that 

is ongoing. 

Director MUELLER. Let me give you an example that happened 

overseas, an investigation in which we were working with others. 

I learned that there was a substantial quantity of ammonium nitrate in a storage locker. Come to find out from an informant that 

there is a substantial amount of ammonium nitrate in the storage 

locker which is to be used for a substantial terrorist attack. At the 

time, at that point in the investigation the investigators did not 

know who were the co-conspirators, who had ordered it, who was 

going to carry it out, whether there was a vehicle available. But 

they did know that there was ammonium nitrate in a storage locker, a substantial amount that could be used for an explosion. 

Assuming that had come in the—if that was in the United States 

where we came across this information of ammonium nitrate in a 

storage locker but still had to continue the investigation, we would 

go to court and get an order to go in and seize that ammonium nitrate, replace it with an inert substance, delay notification so we 

could continue the investigation to determine who had ordered that 

this plot be undertaken, who was paying the rent on the storage 

locker, and continue the investigation so that we could take out not 

just that ammonium nitrate in the storage locker but all of those 

who were involved in that terrorist plot. And so the delay of notice 

would be absolutely instrumental in that occasion to assure that 

we could wrap up those who intended to harm the United States. 

Were we not to have that and we had to give notification to the 

owner of that storage locker, we would have to perhaps not even 

be able to arrest that person because we would have insufficient information to arrest that one person, much less all of those who 

were involved in the plot. 

Senator SESSIONS. And all of his buddies would scatter like a 

covey of quail. 

Director MUELLER. Absolutely. As soon as you go in with police 

and seize that—in plain view go in and seize that ammonium niVerDate 0ct 09 2002 12:04 Nov 04, 2005 Jkt 024293 PO 00000 Frm 00056 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\24293.TXT SJUD4 PsN: CMORC
51

trate, not only would, quite obviously the press would pick up on 

it very quickly and everybody would be in the wind. 

Senator SESSIONS. And that is done on drug cases. 

Director MUELLER. In drug cases— 

Senator SESSIONS. Before the PATRIOT Act was passed, you 

could do that in drug cases? 

Director MUELLER. Yes, and I think I gave the example of Ecstasy coming in the country, where we didn’t want the Ecstasy distributed. And yet the investigation was not completed, and so we 

went through a ruse. We seized the Ecstasy but continued the investigation, leading to the arrests of over a hundred individuals 

who were involved in the plot. That is the importance of the delay 

of notification. 

Senator SESSIONS. I think it is critical. We cannot allow that to 

be eroded. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you, Senator Sessions. 

Senator Feinstein? 

Senator FEINSTEIN. Thanks very much, Mr. Chairman. 

Mr. Mueller, I wanted to clarify our prior round of questions 

here. In 2003, the Intelligence Authorization Bill contained language which mandated the DCI prepare standards and qualifications for intelligence officers. It is now 2005. When was this mission completed? 

Director MUELLER. I am not certain. Within the Bureau, the mission was completed, I believe, December of 2004. 

Senator FEINSTEIN. So you did receive the standards and qualifications? 

Director MUELLER. Well, I would have to see to what extent our 

Intelligence Officers Certification Program is dependent on standards and qualifications from the intelligence community. I know we 

have completed our Intelligence Officers Certification Program as 

of December of last year, if that is what you are referring to. 

Maybe I am confused. 

Senator FEINSTEIN. Well, it is my understanding that the DCI 

has not complied with the law. If you would— 

Director MUELLER. We will check on that. 

Senator FEINSTEIN.—please find that out and let me know— 

Director MUELLER. I will. 

Senator FEINSTEIN.—I would appreciate it very much. 

Director MUELLER. I did not mean to, in my answer to your previous question, Senator, leave the impression that we have not 

built up a substantial cadre of intelligence specialists within the 

FBI. We have. And we have an intelligence directorate now of several thousand persons, including analysts, agents, surveillance, 

language specialists in the intelligence directorate. What I was referring to is the specific certification has not been done, but I did 

not want to leave the impression that we have not taken substantial strides in response to the legislation the President has directed 

to establish the intelligence directorate we have. 

Senator FEINSTEIN. I appreciate that very much, and I know you 

have made those strides. I just want to see that the intelligence 

end has been complied with, and I do not believe, based on what 

I know, that it has. 

52

I would like to ask a question on the roving and John Doe wiretap, if I might, Mr. Attorney General. Section 206 creates roving 

wiretaps which allow the Government to get a single order that follows a target from phone to phone. In addition, the Intelligence Authorization Bill, passed shortly after the PATRIOT Act, allows the 

Government to issue John Doe wiretaps, where the phone or facility is known but the target is not known. The way that the two 

laws were written seems to allow for a general wiretap, one that 

follows an unknown suspect from unknown phone to unknown 

phone. 

Does this mean that you could get a John Doe wiretap to listen 

to all the telephones in a certain area? I realize that sounds physically impossible, but just for a moment assume the technology is 

there. Does the law as written give you that authority? 

Attorney General GONZALES. The short answer is no, Senator. 

Before I follow up on that answer, I cautioned earlier about the 

ACLU and the fact that we had not had a great deal of opportunity 

to look at it. You asked my specifically about the Mayfield case, 

and I am advised that there were certain provisions of the PATRIOT Act that apparently were used, specifically the information 

provisions were used, the 207 authorities were used, which extended the duration of the electronic surveillance, and I am told in 

some sense 218 was used, although quite frankly I am not sure in 

what sense it was used, since I was told the contrary last night. 

So I did not want to leave you or the Committee with a 

misimpression about that. Obviously we will look into it further 

and give you the most accurate information. 

Senator FEINSTEIN. I really appreciate that. I think it is important, since this has become an issue that we clarify exactly where 

it is. 

Attorney General GONZALES. As to your question about roving 

wiretaps, we believe there is an obligation with respect to Security 

206 to either identify the person by name or to provide some type 

of specific description about a particular individual, that the authority is to be used with respect to a specific target and that, if 

for some reason we were mistaken about the target—we now say, 

well, this is the guy we really want to go after—we have to go back 

to the court and get an additional authority under 206. I also believe that there is— 

Senator FEINSTEIN. Beyond what point? Beyond what point 

would you have to get additional authority? How wide would the 

tap have to be? 

Attorney General GONZALES. I was referring only with respect to 

any event that we had concluded that we had the wrong target. It 

is not a case that 206 could be used on one person and then we 

could simply use that authority to tap the phones of another person. It is target-specific, and 206 does give us the authority to either identify the target by specific identity or by some kind of specific description to the court. 

Senator FEINSTEIN. So once you have identified the authority, 

you cannot use that tap in any other capacity in that area. Is that 

correct? 

Attorney General GONZALES. We cannot use that tap with respect to another target. 

53

Getting to the second prong of your question about the scope. 

Could we simply go up on phones in, you know, an entire city because, you know, a person might be in the city, there is a limitation 

that we have some reasonable basis to conclude that a set of 

phones is either being used or is going to be used by that specific 

target. So I think that there is that limitation on the law as well. 

Senator FEINSTEIN. But it is a pretty broad authority. I could see 

it being construed to use it in a very wide area. 

Attorney General GONZALES. It may be viewed as a broad authority by some, but I would like to remind you and the Committee 

again, it is a probable cause standard. Both prongs have to meet 

a probable cause standard nd we have to satisfy a Federal judge. 

And so we present information to a Federal judge and satisfy the 

probable cause standard that in fact we have a specific target and 

we could limit the scope of the surveillance. 

Senator FEINSTEIN. Thank you. I would like to ask you about the 

definition of domestic terrorism in the bill. Section 802 defines it. 

As I understand the definition, it is any actions occurring primarily 

within the United States if they involve a violation of State or Federal law; secondly, appear to be intended to influence Government 

policy or civilian population by intimidation or coercion; and three, 

involve acts dangerous to human life. 

Now, some contend that this is a very broad definition and thus 

expands the type of investigative conduct law enforcement agencies 

may employ. Because of the chilling effect that this might have, 

there is concern. My first question would be how would you justify 

such a broad definition. And the second question is if you could explain how the words appear to be intended or are understood by 

your Department. 

Attorney General GONZALES. I think that, first of all, let me 

begin by saying that, of course, this does not create a crime of domestic terrorism. It simply provides a definition of domestic terrorism to be applied with respect to a variety, a number of other 

statutes. 

Concerns have been raised with respect to this particular provision that it may in fact chill organizations and groups that want 

to, you know, protest and march against this Government, things 

of that nature. That is why the law was written the way it was, 

so that we are talking about actions that were already in and of 

themselves violations of some other criminal statute and also about 

those kinds of actions that would involve the actual endangerment 

of human life. And therefore the kinds of protests that we see from 

time to time here in Washington would clearly not be covered within the definition of domestic terrorism. 

Senator FEINSTEIN. Except by the vagary of the way the statute 

is worded. You use the term ‘‘involves loss of human life,’’ but that 

is not necessarily correct because it is a broad statement, as I understand it, of ‘‘any violation of State or Federal law,’’ not just 

State or Federal law that involves a threat to human life. 

Attorney General GONZALES. My understanding, Senator, is that 

both of those—that all three would have to be met, is that there 

would be a violation of a statute, action intended to influence or 

protest Government actions—although that second prong, I would 

54

have to look at the statute specifically—but the third prong as well, 

as to endanger human life. 

Senator FEINSTEIN. Thank you for that explanation. Could you 

explain the words ‘‘appear to be intended’’ and how they are understood? 

Attorney General GONZALES. I do not—I would like the opportunity to get back to you on that, Senator. 

Senator FEINSTEIN. I can understand that. 

Okay, thank you very much. If you would, I would appreciate it. 

Attorney General GONZALES. Yes, ma’am. 

Senator FEINSTEIN. Thank you. Thank you, Mr. Mueller. Thank 

you, Mr. Chairman. 

Chairman SPECTER. Thank you, Senator Feinstein. 

The national Security Division, which we talked about a little 

earlier, has been a recommendation of the national Commission 

which reported last week. I frankly have grave doubts that it is a 

matter of restructuring, but I would be interested in your views, 

Attorney General Gonzales, as to whether you think restructuring 

would really be relevant and germane or the issues are much more 

substantial. And similarly with you, Director Mueller. 

Attorney General GONZALES. Mr. Chairman, even before the report came out, I directed that there be a review within the Department as to whether or not we should look at restructuring. As the 

WMD Commission report indicated, we are probably the only Department that has not engaged in any kind of restructuring following the attacks of 9/11—Main Justice, I am referring to. I think 

that there are, certainly one could argue there are good reasons 

why a restructuring would make sense. Let me preface my remarks 

by saying that there’s been no decision, and obviously we would 

want to consult with the Congress about a possible restructure and 

get their views. 

But in the interagency process I feel that sometimes the Department is not as well represented as it should be often. If I am not 

available or if the Deputy Attorney General is not available, then 

it really falls down to sort of a deputy assistant attorney general, 

and sometimes that is probably not the best representation for the 

Department and some very important decisions have to be made on 

the interagency process. 

We now have—in my judgment, the Criminal Division has a 

great deal of responsibility. More and more personal attention is 

required with respect to counterterrorism and counterintelligence 

issues, and one has to question whether or not it would make some 

sense to move certain operational responsibilities out of the criminal division. You have the counterterrorism reporting up to one 

deputy assistant attorney general, counterespionage into another 

deputy assistant attorney general, and I do not know if that is the 

right way to structure it. 

So it is something that we are looking at very seriously. 

Chairman SPECTER. Why has that not been done up till now? 

Attorney General GONZALES. Sir, I do not know why it has not 

been done up to now. I suspect that people have been focused on 

exercising other authorities to protect this country. 

55

Chairman SPECTER. Director Mueller, what do you think about 

it? Is it necessary? Would it really make a difference for you, your 

unit? 

Director MUELLER. Well, the concerns the WMD Commission 

pointed out are very valid and they are substantial. In terms of our 

building up the capabilities to an intelligence structure. And when 

they point out that the Office of Intelligence is weak because it 

does not have budgetary authority, it does not have control over 

certain of the analysts, they are absolutely right. We have to build 

up an intelligence capacity within the Bureau. I am completely 

open to whether restructuring will aid that, and I look forward to 

sitting down with the commissioners—I am going to do it this 

week—to have a discussion about their recommendations. I am 

open to it. More has to be done. I think we have made strides, but 

we still have a ways to go. And they point out areas which we have 

not gone as far as any of us would like. 

So I look forward to not only talking with the commissioners, but 

also spending time with the Attorney General to determine whether any restructuring, how that would fit in with what is happening 

in the Department of Justice, because it is the two of us working 

together. 

Chairman SPECTER. Director Mueller— 

Director MUELLER. And DNI, if I might say. The relationship 

with the DNI is particularly important and I want to have an opportunity to sit down with the DNI and look at how the restructuring proposed might assist him and his responsibilities. 

Chairman SPECTER. Well, the restructuring is fine, but it is going 

to take a lot more coordination. This is something that you and I 

are going to talk about in greater length after today’s hearings and 

will be a very important provision for this Committee’s oversight. 

When I finished my last round, I was on a fellow known as 

Curveball, and it was rather obtuse as to—but I wanted to end on 

time, which I think is important to keep this hearing moving. But 

just by way of slight amplification, Curveball was supposed to have 

been the name for an informant who gave information which was 

relied upon that Iraq had weapons of mass destruction. And there 

were serious challenges to Curveball’s veracity and, in a surprising 

way, both former Director Tenet at the CIA has been quoted as 

saying he never heard of Curveball and, similarly, Deputy Director 

McLaughlin has been quoted as saying that he never heard of 

Curveball. And those are questions which really need to be answered on the record, aside from simply the newspaper accounts. 

But so often we find that this sort of thing occurs just sort of incomprehensible when major decisions are made and the matters to 

not get to the upper echelons. It places a very heavy burden on the 

Attorney General and on the Director. But as those questions were 

asked about the questioning at Guantanamo, it really is something 

that has to get to the upper echelons because, regrettably, if it does 

not, the action simply is not taken. 

There are a couple of other questions I want to come to before 

concluding the hearing. When we were talking about tangible 

things, Attorney General Gonzales, talking about probable cause as 

opposed to relevance and Senator Durbin raised the question about 

whether the Judiciary Committee got information, we are going to 

56

seek a memorandum of understanding that now goes to the Intelligence Committee. But would there be a major burden if probable 

cause were used as opposed to the standard of relevance? As Senator Durbin pointed out, once you have relevance, there is a ‘‘shall’’ 

requirement that the judge issue the search and seizure warrant. 

How big a burden would it be if the traditional standard of probable cause were used here? 

Attorney General GONZALES. Well, Mr. Chairman, I think that 

probable cause is appropriate in connection with searches and seizures. When we are talking about provisions such as 215, that is 

not a search in the traditional sense. That represents simply obtaining information from a third party, where there is less, I think, 

expectation of privacy. And information is gathered—this is the 

way it happens in criminal cases. You use grand jury subpoenas to 

gather information using relevancy standards, and then once you 

gather—it is a building block, and once you gather the information, 

then you use that to conduct your searches and seizures. And so 

I am told by our agents and the prosecutors that if we were to elevate, for example, the standard with respect to 215 from relevance 

to probable cause, no one would use 215. And I just think it is an 

important tool, that we ought to make it a viable tool, and I am 

concerned that if in fact the standard were raised, that would not 

be the case. 

Chairman SPECTER. Attorney General Gonzales, in your answer 

I heard you use the term ‘‘search and seizure’’ after you said it was 

not a search and seizure. It seems to me it is a search, going after 

a specific record; and then a seizure to obtain it. 

We are going to have a closed-door session on the 12th, a week 

from today, and I am going to want to hear specifics. I like to function on a fact-oriented basis. 

Attorney General GONZALES. As do I, Senator. 

Chairman SPECTER. I want to hear specifics where there have 

been obtaining the records under a tangible-things Section 215, 

and specifically why there would be a problem on probable cause. 

My own experience has been that if you stop and think for a few 

minutes, you have a reason as to why you want it. Probable cause 

does not have to be some elaborate statement of an affidavit in the 

search warrant, it has to be the reason you are looking for. And 

there usually—if there is justification, I think the law enforcement 

officer can articulate a reason. But I want to come down to the specifics when we are in a closed-door session. 

Similarly, Director Mueller, when we talk about the search-andpeek, you gave one illustration as to the provision 5 on catch-all. 

I want to hear more about it. As I cited to you, some— 

Director MUELLER. Ninety-two. I think it was 92— 

Chairman SPECTER. Twenty-eight matters where they were solely on the basis of that exception. And here again, I would like to 

hear the specifics as to why they do not fall into a specific category. 

And on the multi-point wiretaps, where you have the non-specification of an individual, as Senator Feinstein talked about, the 

John Doe wiretaps, and you have multi-points, it seems that it is 

really generalized. And there are 49 of these applications made—

and here again, I want to get into the specifics as to exactly what 

they are. 

57

Our Committee has been looking at possible legislation on an expansion of the authority of the FISA court to be the central court 

where applications are made for habeas corpus on detention. We 

now have conflicting decisions by the district courts. I would be interested in your views, Attorney General Gonzales, if you think 

that would be helpful to have that concentrated in one court so you 

have uniform application. 

We are also thinking about spelling out some of the—in more detail. It is congressional authority under the Constitution to deal 

with this issue of detentions, but what, do you think it useful from 

the point of view of the Department of Justice if there was a central court, to avoid the question of conflicting decisions? 

Attorney General GONZALES. I think it could certainly be useful, 

Mr. Chairman. Obviously, we would like the opportunity to look at 

the legislation. 

Chairman SPECTER. Well, you will have a chance to look at the 

legislation. How about you, Director Mueller? How about disagreeing with the Attorney General for once here today? 

Director MUELLER. I disagree with the Attorney General. I do not 

think that— 

No. I have not had a chance to think about whether a central 

court in that circumstance would make a difference. I would like 

to get back to you on that. 

Chairman SPECTER. Attorney General Gonzales did not have a 

chance to think about it, either, but he had an answer. 

Attorney General GONZALES. I said I thought it could be helpful. 

Chairman SPECTER. We are going to be having another hearing 

on the PATRIOT Act on May 10. We have started early. This is a 

big issue. 

I was about to conclude the hearing until my peripheral vision 

was a little too good to see Senator Schumer return. Senator Schumer, you do not have any more questions, do you? 

Senator SCHUMER. Just one, very brief, Mr. Chairman. 

Chairman SPECTER. Proceed in that event. 

Senator SCHUMER. Thank you. And I appreciate it and apologize 

for coming back and forth to the witnesses and to you. We have 

three different committees going. 

Chairman SPECTER. Oh, it is quite all right, we know you are 

busy. Especially since you promised only one question. 

Senator SCHUMER. Exactly. 

This is to Director Mueller. It has several parts, as the Chairman 

knows. 

[Laughter.] 

Director MUELLER. Somehow I am not surprised. 

Chairman SPECTER. Director Mueller, he can ask you as many 

parts as he wants. You only have to give one answer. 

Senator SCHUMER. With many parts. 

Anyway, Director, I know that you, in response to a letter that 

I, along with Senator Lautenberg and others, sent—this is just to 

follow up on the guns issue that I had asked about before—have 

formed a working group to review this problem. When can we expect to hear from the working group in terms of a real time frame? 

That is my only question. 

58

Director MUELLER. It is a Justice Department working group 

under the Attorney General, sir. 

Senator SCHUMER. Ah. Excuse me. 

Director MUELLER. So for once I will defer to the Attorney General. 

Senator SCHUMER. Then let me— 

Attorney General GONZALES. Senator Schumer, I do not have an 

answer, but I will respond to you shortly as to when we will have 

a report. 

Senator SCHUMER. What, is it going to take a very long time, or 

are we going to get back before the PATRIOT Act comes before us? 

Chairman SPECTER. You are on your second question, Senator 

Schumer. 

Senator SCHUMER. Well, that was a follow-up question. You are 

a good attorney, better than me. Follow-up questions. 

Attorney General GONZALES. I would hope it would not take a 

long time, but I need to check with my staff, Senator. 

Senator SCHUMER. Okay. Could we get an answer back in writing 

as to when it would—when we would get the answer? 

Attorney General GONZALES. We will do our best, Senator. 

Senator SCHUMER. Thank you. 

Mr. Chairman, was a I brief enough? 

Chairman SPECTER. I consider those three questions all within 

the ambit of the single question. 

Let me thank you on behalf of the Committee, Attorney General 

Gonzales and Director Mueller, for the service you perform. Attorney General Gonzales spent 4 years as White House Counsel—and 

you have had a very distinguished career. I think Senator Sessions 

was right, a little undue modesty in terms of your long tenure as 

U.S. attorney both in Boston and San Francisco, assistant attorney 

general. And these are very knotty problems and I am glad to see 

some showing of flexibility. I think there has to be a little give on 

some of these issues. And as I say, when we have the closed-door 

session, I want to see the specifics. I want to see exactly what is 

going on and how we might leave you the authority you need but 

still have the specifications so that the standards are interpretable 

by people down the line to protect civil rights. 

I would like to see both of you gentlemen in the back room, if 

I might, for just a minute. 

That concludes the hearing. 

[Whereupon, at 12:47 p.m., the hearing was concluded.] 

[Questions and answers and submissions for the record follow.] 

[Additional material is being retained in the Committee files.]

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(315)

CONTINUED OVERSIGHT OF THE USA 

PATRIOT ACT 

TUESDAY, MAY 10, 2005

UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, D.C. 

The Committee met, pursuant to notice, at 9:30 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Arlen Specter, 

Chairman of the Committee, presiding. 

Present: Senators Specter, Kyl, Cornyn, Leahy, Biden, Feinstein, 

Feingold, and Durbin. 

OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. 

SENATOR FROM THE STATE OF PENNSYLVANIA 

Chairman SPECTER. Good morning, ladies and gentlemen. It is 

precisely 9:30, so the Committee on the Judiciary will now proceed 

to a hearing on the PATRIOT Act. 

This is our third hearing. Earlier we had testimony from Attorney General Gonzales and FBI Director Mueller and then we had 

a closed session in examining the provisions of the PATRIOT Act. 

As we have stated, we are going to be looking at specific factual 

situations to make our determinations as to what changes there 

ought to be in the PATRIOT Act, and I do not say ‘‘what changes, 

if any,’’ because Attorney General Gonzales has stated his own 

view of the need for some changes. I think his changes are probably not as extensive as will be recommended by the Committee, 

at least in legislation. But I compliment the Attorney General for 

his openness in meeting with quite a number of groups which have 

objections to the PATRIOT Act. And I believe that that is a very 

salutary approach to give people an opportunity to be heard. Sometimes you find out things you had not expected. Sometimes you 

even change your mind if you have that kind of a hearing—a listening as well as a hearing. And it certainly is helpful on the overall approach to the issue if all sides feel that they have at least 

been heard and had a chance to present their views. 

We are going to be looking this morning at a continuation of the 

delayed notice on the search warrants. We have had some specification from the Department of Justice on the specific cases, their 

representation that there have been some 28 occasions where the 

delayed notice was necessary to avoid seriously jeopardizing an investigation. We are going to make a review of those situations and 

our own factual determination. 

We are concerned about the provision on business records as to 

whether there ought to be a showing of probable cause or at least 

316

some showing beyond that which is now in the statute. And there 

has been some substantial concern and worry over the provision for 

library records and medical records. And we have been advised 

that the Department of Justice has never used them for library 

records, and that raises the obvious point: If it hasn’t been used in 

that line, wouldn’t it be wise to have a specific exclusion unless 

there can be a showing by the Department of Justice of the necessity for it? 

There are provisions which we will be taking a look at on the 

separation of the wall. I think that is a generalization. It is desirable to have the separation of the wall on foreign intelligence and 

criminal matters if evidence is uncovered in a Foreign Intelligence 

Surveillance Act case and it shows criminality, to be able to proceed there. But there has to be a good-faith effort by the individuals applying for the warrants to make sure that they are on the 

right line. 

We have a long list of witnesses today. The lead witnesses are 

two of our colleagues: Senator Craig and Senator Durbin. The time 

limits will be set at 5 minutes, which is our Committee’s custom, 

and I am now going to yield to my distinguished Ranking Member. 

And I want the record to show that I am yielding back a minute 

and 10 seconds. 

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

FROM THE STATE OF VERMONT 

Senator LEAHY. Mr. Chairman, I caught the hint. 

I am delighted to be here. I want to compliment the Chairman 

for doing this, and I appreciate his leadership in oversight. This 

Committee, as much as any committee in the Senate, should be involved with serious oversight of serious matters, and under his 

chairmanship, I am glad to see us going back to that tradition. And 

I appreciate it. All of us, whether Republicans or Democrats, are 

better off, and ultimately not only is the Senate better off with real 

oversight, but the American people are better off. And even though 

sometimes Presidents—and I have heard complaints from Presidents of both parties—complain about oversight, they are usually 

better off if we do it. 

It is interesting to note that this is catching. Our counterparts 

in the other body are also holding another hearing this morning on 

the PATRIOT Act. The Chairman said the Senate Select Committee on Intelligence has heard it. It has been the focus of more 

than a dozen hearings this year alone. 

It is no mystery why, when we seem to have a difficult time to 

get oversight hearings in other areas, important areas, we are getting it here. 

Just a little history. I will tell you a story about the history of 

this. In the final negotiating session of the law, former House Majority Leader Dick Armey, a man not normally seen as my political 

soul mate, he and I worked together and we insisted on adding 

sunset provisions for certain governmental powers that have great 

potential to affect the civil liberties of the American people. And 

these sunset provisions are the reason we are here today. It is why 

we are revisiting the PATRIOT Act. We have to revisit it because 

of what Leader Armey and I put into the Act. 

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It also explains why we are getting some answers from the Department of Justice, answers that we were denied for years, but 

under the persistence of Chairman Specter and the tolling of the 

sunset provisions, suddenly the answers are coming forth. 

Now, the PATRIOT Act is not a perfect piece of legislation. I 

have been here 31 years. I have a hard time picking out what has 

been a perfect piece of legislation. I said as much when we passed 

it just 6 weeks after the 9/11 attacks, and I was Chairman of the 

Committee at that time. 

In negotiations with the administration, I did my best to strike 

a reasonable balance between the urgent need to address the 

threat of terrorism and the need to protect our constitutional freedoms. I was able to add many checks and balances that were absent from the administration’s draft along with provisions to address other concerns such as border security and the terrible problem the FBI had with the lack of translators. Other members of the 

Committee and in Congress were able to include improvements as 

well. But I made sure that we would have oversight. I always knew 

and noted at the time that we in Congress would have to revisit 

these issues when the immediate crisis and the emotional aftermath of the crisis had abated. 

Now, we had some, even one on this Committee, who wanted to 

pass this legislation without even reading it, before it even came 

up from the administration. Fortunately, cooler heads prevailed. 

Cooler heads won over that sense of panic, and we actually read 

the legislation before we passed it. 

Now, legitimate concerns have been raised about various powers 

granted by the PATRIOT Act not so much for how they have been 

used but for how they could be used—not so much how they are 

used but how they could be used—and for the cloak of secrecy 

under which they operate. Since September 11th, Americans have 

been asked to accept restrictions on their liberties. They deserve to 

know what they are getting in return. Until then, this Senator is 

not going to ask the American people to give up any more of their 

liberties unless they know exactly what they are getting in return. 

So the sunset provisions ensured that. Dick Armey and I were 

afraid that the administration would not tell the American people 

what was going on. We were right. Now the answers are coming. 

And, Mr. Chairman, I am delighted we are here at this point, and 

I am glad these sunset provisions are there because finally we will 

get some answers. 

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

I have 31 seconds left. 

[Laughter.] 

Chairman SPECTER. Thank you very much, Senator Leahy, for 

that erudite statement and even more for the 31 seconds. 

Our first witness is our distinguished colleague, Senator Larry 

Craig, who served in the House of Representatives before coming 

to the United States Senate in 1990. He had been a member of this 

Committee in the 108th Congress, and we know that his departure 

was occasioned by a difficult matter of Committee selection. But we 

definitely miss him here. 

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He is the principal author of the so-called SAFE Act, the Security 

and Freedom Enhancement Act of 2005. And Senator Craig and 

others who are sponsors of that Act have been cited as evidencing 

a concern about the provisions of the Act as to whether they are 

all necessary after 9/11 where, as Senator Leahy has accurately 

said, we passed the legislation and whether modifications ought to 

be made. And his sponsorship of that Act has really drawn into 

sharp focus the fact that people on all phases of the political spectrum—the left, the right, the center—have all expressed concerns, 

which is a signal for very close attention on the legislative process. 

So thank you for joining us, Senator Craig, and the floor is yours. 

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

THE STATE OF IDAHO 

Senator CRAIG. Well, Mr. Chairman, first and foremost, thank 

you for holding this hearing on the USA PATRIOT Act. As Senator 

Leahy mentioned, the House has held hearings; Intel has held 

hearings. Last year, as you referenced, when I served on this Committee, we held some hearings. But it is most appropriate for this 

Committee to once again review the PATRIOT Act and to make 

sure that changes, I think, that will be made in it are appropriate 

and necessary. 

When we originally passed PATRIOT, Congress did a number of 

good things. We came together in a bipartisan fashion to carry out 

a number of responsibilities of the Federal Government had to do 

one thing, and that was to protect our citizens. And we did something else that was very wise. We anticipated, as Senator Leahy 

mentioned, that hindsight would give us a better perspective on 

dealing with terrorism, and we put sunsets in the PATRIOT Act 

to force a re-examination at a later date of the expanded powers 

that Congress has given the Federal Government. 

Since then, we have looked at how the law is working and what 

impact it has had. The 9/11 Commission has given us some additional insight. Notably, that Commission cautioned us that the burden of proof is on Government to justify keeping expanded PATRIOT powers. This caution should be at the forefront of this Committee’s deliberations now that the day has come to decide what to 

do with the expiring provisions of the PATRIOT Act. 

But I would also submit that even if the Government justifies its 

use of expanded powers, this Committee should ask a second question: How can we prevent the future abuse of these powers? This 

is the key question, I think, Mr. Chairman, a question that has certainly haunted me ever since I saw lives lost in my State of Idaho 

at the hands of people who were unquestionably well-intended in 

trying to preserve the peace. The folks back home find it awfully 

hard to just sit back and trust Government to do the right thing 

without the adequate checks and balances to prevent harm in case 

something goes wrong, in the case that good people make mistakes 

or have to turn over their cases to not-so-good people. And, of 

course, Mr. Chairman, you know what I am talking about. You 

held hearings on that situation in Idaho a good number of years 

ago where good people did bad things, and as a result of those 

hearings, we made changes in the way our Federal Government 

and the way the FBI operated. 

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Our Nation has a great tradition of balance in the enforcement 

of its laws. PATRIOT should rest squarely in that tradition. Let me 

tell you of an experience I had this last week about tradition. I was 

at the police academy camps just outside of Amman, Jordan, where 

we are training thousands of Iraqis to become policemen. And one 

of the principal pieces we put in their new mental make-up as a 

law enforcement officer is how to Act in a democratic way. They do 

not understand the democratic principle of law enforcement and 

that those who are arrested have rights and should be treated 

forthrightly. I thought that most fascinating, that that is the one 

thing we are attempting to instill in law enforcement officers, and 

here we are reviewing a most important law in which we must understand that the greatest threat is life and liberty of our citizens 

at the hands of our Government if our Government goes wrong. 

I am not here to stand up for the bad guys. I am worried about 

what happens when good guys make mistakes in some future administration and when the weakest links among us decide to abuse 

the law for their own ends, such as stifling political disagreement. 

The point is that our law cannot be written for the best and the 

brightest. They must also anticipate enforcement by the worst and 

the weakest. That was certainly the skeptical approach taken by 

our Founding Fathers, Mr. Chairman, when they crafted the blueprint of our Federal Government, the Constitution, and placed 

strict limits on the enormous powers of Government. 

I ask you to keep in mind these very thoughts as you review PATRIOT Act. If we cannot change human nature and prevent all 

abuses, the very least we can do is prevent the harm that might 

follow from them. This is where our bill comes in. You are right; 

it is a bipartisan bill. Senator Durbin will testify later. He and I 

and Senator Feingold and many of our colleagues have introduce 

S. 737, the Security and Freedom Enhancement Act that you referenced a few moments ago. This bill would make several narrow, 

targeted changes in PATRIOT. S. 737 is by no means the final 

word on amending PATRIOT. It addresses only a few of the more 

controversial PATRIOT provisions. 

I am well aware there are colleagues who are advocating additional changes in the law or the different approaches in the sections of the law as we have targeted in the SAFE Act. I want you 

to know there are some change from last year’s rendition of the 

SAFE Act. We have taken a couple of those changes because the 

Department of Justice suggested that changes ought to be made, 

and we have incorporated that potential intimidation of witnesses 

should be another justification for allowing delayed notice of 

search. We have also responded to the concern that it is too burdensome to require weekly renewal of the authority of delayed notice of search. 

I notice my time is up. I will submit the balance of my statement 

to the record, Mr. Chairman, but once again, this is as much about 

the future of the law and its enforcement as it is about currentday law and, once again, making sure that those firewalls are in 

place to protect the liberty and the freedom of our citizens. 

So I hope you will take this into consideration. We think we have 

put together a very strong, bipartisan approach to targeted amendVerDate 0ct 09 2002 12:04 Nov 04, 2005 Jkt 024293 PO 00000 Frm 00325 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\24293.TXT SJUD4 PsN: CMORC
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ments. We are not here to speak of repeal. We are here to speak 

of strengthening and clarifying PATRIOT Act. 

Chairman SPECTER. Thank you very much, Senator Craig. You 

are accorded a little more leeway when you are not a member of 

this Committee. Committee members have to stop exactly on time. 

But since you are not a member of the Committee—

Senator CRAIG. Well, Mr. Chairman, I had the privilege of serving on this Committee before, and I remember that there were not 

the time rules there are today. I wish I were serving here today. 

[Laughter.] 

Chairman SPECTER. Thank you. 

Does anybody have any questions for Senator Craig? 

Senator LEAHY. Yes. Senator Craig, one, I appreciate your testimony. We talk about Ruby Ridge. As you know, as the Chairman 

I lived that for weeks and weeks and weeks with the hearings we 

had. And I agree with your thought that good people did bad mistakes on both sides. 

I think the tragedy of that one was—I remember the last question I asked Mr. Weaver or the last series of questions. I asked him 

if he thought he had been treated fairly in the hearings. He said 

he had. I asked him whether he had a different view of his Government, having seen the hearing that Senator Specter and I and others had held. He said a much different view. And I said knowing 

now that the questions could be asked, fairness could be brought 

forward, what would you have done in retrospect? And I remember 

the very sad answer: ‘‘I would have come down from the mountain.’’

And I think you and I would probably be in agreement in 99 percent of the areas—or 100 percent of the areas where things went 

wrong. And that is what we want to avoid, that things get out of 

control, that we do not have the oversight. 

I think you would agree with me, would you not, that there are 

a lot of very, very good parts in the PATRIOT Act? I can think of 

meaningful judicial review of surveillance authorities where the 

judge is a real fact finder, not just a rubber stamp; meaningful 

oversight, timely reporting. These are things that we should try to 

retain. Would you agree? 

Senator CRAIG. Well, I would agree, and I also believe that in 

this new world we live in of terrorism, where preemption is so important because it saves lives prior to an act. You know, we were 

in the mode of going out after an Act occurred and finding all of 

the possible findings made and trying to create or craft a circumstance behind a guilty party, that is too late in this new business we are into. So there has to be some way of preemptive action 

while safeguarding the right of our citizens. And I think that our 

amendments and the Act itself is the right combination. 

Senator LEAHY. Would you agree with me that a touchstone we 

should have—Benjamin Franklin said, and I paraphrase—I was 

not there, but I paraphrase. He said something to this effect when 

writing the Constitution and Bill of rights. He said a people who 

would give up their liberties for security deserve neither. 

Senator CRAIG. Well, I certainly don’t disagree with that, and I 

think that that is a very important test for all of us. That is something that very early on in this new world we are living in, we had 

321

to figure out how much we were willing to give up and how we 

gave it up. 

I am still extremely frustrated every time I walk through an airport and I find some person going through my suitcase. That is an 

invasion in my privacy. I have given it up in the name of safe 

flight. How much more do our citizens have to give up on a daily 

basis? I find it very difficult to believe that the Federal Government can enter my home, strip my hard drive off my laptop, go 

through my records, walk out the back door, leave it neat and clean 

as if unentered, and never tell me they were there. That is a step 

too far. And that is a step too far in every circumstance, unless 

there is reasonable and just cause and it has been demonstrated 

to a judge. We are not even taking the right of entry away in the 

first instance. We are simply establishing reasonable notification 

after the fact. 

Senator LEAHY. I would hope that both liberals and conservatives 

would agree on what you have just said. Somebody once said to me, 

you know, probably the proudest thing you have in your life is 

being a United States Senator. I said, no, the proudest thing is 

being an American. And that I did not have to work for. I was born 

in the State of Vermont, born that way. My grandparents immigrated to this country to become—not even speaking the language, 

but to become Americans, and it is because of the freedoms we 

have. I think if there is an area where we can make common cause, 

all of us, it is in protecting those freedoms. And we could protect 

them and have a secure Nation. Of course, we face different threats 

today. Of course we do. But if this great Nation cannot defend our 

security and protect our liberties at the same time, what do we 

have? 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Leahy. 

Senator Cornyn? 

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

THE STATE OF TEXAS 

Senator CORNYN. Thank you, Mr. Chairman. 

Mr. Chairman, I do appreciate your holding these oversight hearings on the PATRIOT Act, and I think it is very important for all 

the reasons stated. And I appreciate our good colleague and friend 

Senator Craig for expressing the concerns that he has. While I 

have some reservations about his proposed solution, I agree wholeheartedly with his concerns. And I think it is important that we 

proceed to try to determine what the facts are. 

Unfortunately, as far as the PATRIOT Act is concerned, people 

condemn the PATRIOT Act entirely based on not the facts but on 

emotion and on spin. I think Senator Feinstein has been the one 

who I have appreciated her efforts to ascertain the facts during the 

course of our oversight hearings on the PATRIOT Act by determining whether there is any substance to some of the complaints. 

And, in fact, there is, I have concluded, very little substance. 

While we all are left to speculate about the effect of laws that 

we actually pass, the best teacher is experience. And I think we 

have seen the PATRIOT Act has held up well in experience in 

terms of providing security but not unduly jeopardizing our liberty. 

322

So I appreciate your having these hearings. I look forward to the 

testimony. But I hope that in the end we will do as we always try 

to do, but sometimes don’t succeed, and that is to make our decisions based on the facts and on experience rather than on emotion. 

Thank you very much. 

Chairman SPECTER. Thank you very much, Senator Cornyn. 

Senator Feinstein, if it is acceptable to you, may we turn to Senator Durbin, who has just arrived? 

Senator FEINSTEIN. Absolutely. 

Chairman SPECTER. He is our second witness. I know when your 

round of questioning comes, you will want to have some questions 

for Senator Durbin. 

Senator FEINSTEIN. Thank you. 

Chairman SPECTER. We welcome you here, Senator Durbin, elected to the United States Senate in 1996 and re-elected in 2002, a 

distinguished record on many, many very important substantive 

matters, was elected as assistant Democratic leader, which he 

serves on at the present time. We thank you for joining us, and I 

don’t have to comment to you, Senator Durbin, since you are a 

member of this Committee, about the time limitations. 

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

FROM THE STATE OF ILLINOIS 

Senator DURBIN. Mr. Chairman, thank you very much, and my 

apologies to you and the members of the Committee and to my colleague, Senator Craig, for my tardiness here. Unfortunately, as you 

mentioned, some of the leadership responsibilities conflict with this 

hearing schedule. 

Thank you for holding this meeting, Mr. Chairman. I commend 

you for doing it. I think it is a timely thing to do. There isn’t one 

of us in this room who does not recall exactly where we were when 

9/11 took place and we learned about that terrible tragedy. And 

there is hardly a one of us who does not believe that that was one 

of the most traumatic moments in our lives when it comes to the 

history of our country, that we were the victims of this invasion, 

killing 3,000 innocent Americans. It led us to take extraordinary 

action on Capitol Hill as well as across the Nation to protect ourselves. And one of the most extraordinary things we did was the 

passage of the PATRIOT Act. 

I felt at the time it was the right thing to do. I was not 100 percent certain because I knew that my decision on this bill was somehow caught up in the emotion of the moment, the concern of the 

moment about whether or not another attack was on the way, how 

we would save innocent lives from the horrors of what happened 

in Washington and in New York. And, luckily, I think wisdom prevailed in that we included in that PATRIOT Act sunset provisions 

saying that our actions at that time would not be permanent law, 

that we would come back and revisit them to decide whether they 

were still wise decisions at a later time. Your hearing sets the 

stage for that conversation, an important national dialogue. 

First, I think we need to try to establish some fundamental principles. The American people want Congress to strike a balance, to 

protect civil liberties but give the Government the power it needs 

to fight the war on terrorism. There are many communities in 

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States across the Nation who have serious concerns about whether 

the PATRIOT Act struck that balance. I ask unanimous consent to 

enter into the record a list of the communities which have passed 

resolutions expressing concern about the PATRIOT Act. 

Chairman SPECTER. Without objection, they will be made a part 

of the record. 

Senator DURBIN. Thank you. 

Second, as the independent bipartisan 9/11 Commission concluded, when the Government seeks to expand its power—and I 

think this is crucial. Senator Craig and I have thought about this 

and really make this kind of the linchpin of where we are coming 

from. When the Government seeks to expand its power, the burden 

of proof should be on the Government to demonstrate that that 

power is needed to combat terrorism. This means the Justice Department must provide Congress with information to assess how 

the PATRIOT Act is being used. 

You were kind enough to have a meeting in 407, a closed-door 

meeting with some classified information about the use of the PATRIOT Act. It is unfortunate that we cannot share with the colleagues in this Committee as well as members of the public exactly 

what was said at that time. Some of the things would be said in 

defense of the PATRIOT Act, some maybe used in criticism of it. 

But that information is not forthcoming, so it is very difficult for 

us to make an honest, open, and objective assessment for the 

American people to be the final arbiter as to what is fair in terms 

of the future of the PATRIOT Act. 

Third, it is our constitutional duty as Senators to examine closely 

legislative proposals that expand Government power such as the 

PATRIOT Act. We should ensure that they are needed to fight terrorism, that they include adequate checks and balances, and they 

will not lead to civil liberties violations. 

I also ask unanimous consent at this time, Mr. Chairman, to 

enter into the record the statement of principles of the new caucus 

that Senator Craig and I have founded, the Bill of Rights Caucus. 

Chairman SPECTER. Without objection, it will be made part of the 

record. 

Senator DURBIN. Several of our colleagues, including Senator 

Feingold from this Committee, have joined us in introducing the 

SAFE Act. It is narrowly tailored. It is a bipartisan bill. 

Mr. Chairman, if you came to the press conference where we announced the SAFE Act, you would have seen the most unusual 

gathering of political groups I have ever seen at any announcement: from the left, the American Civil Liberties Union; from the 

right, the American Conservative Union. Groups that were goodgovernment groups, groups that, frankly, never come together came 

together behind the SAFE Act. It shows that if Senator Craig and 

I can sit at the table in agreement that there is some fundamental 

principle at stake here, and that principle is to protect our rights 

and liberties. We believe on the right and on the left that we 

should come together as we have sworn to uphold this Constitution. 

We do not want to end the PATRIOT Act. We want to amend the 

PATRIOT Act. We think reasonable changes in the PATRIOT Act 

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will protect individual rights and liberties and also give the Government the tools it needs to make America safe. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Durbin. 

Senator Feinstein? 

Senator FEINSTEIN. Thanks very much, Mr. Chairman, and I 

want to thank my two colleagues. I think it is very interesting to 

hear your point of view. 

I have been, as I have said before, puzzled because initially I 

think there was a great deal of misunderstanding about the PATRIOT Act, and confusion. I think a lot of the comments were directed toward PATRIOT II, which never came to the Hill, and also 

to immigration law, referred to as the NSEERS law. 

To this day, I know of no abuse of the PATRIOT Act in virtually 

any given section. Can either of you provide an abuse of the PATRIOT Act? 

Senator CRAIG. Senator, I agree with your statement, and if you 

will remember my comments of a few moments ago, this is all 

about the future and making sure we put in place those safeguards 

that will never tolerate or allow abuse. But I cannot disagree with 

you. In my experience on this Committee and the hearings that I 

have attended, I have listened very closely because I am a critic in 

a limited and targeted way. I do not believe it has been misused 

to date, to my knowledge. But I do believe there are potentials 

built within it for misuse, and that is what we address. 

Senator DURBIN. If I might respond? 

Senator FEINSTEIN. Please. 

Senator DURBIN. Senator Feinstein, I want to agree completely 

with what Senator Craig just said, especially the operative phrase 

‘‘to my knowledge,’’ because we are in a position here where we 

cannot answer the most basic question, and it is this: In a Government of checks and balances, are you in Congress adequately supervising and monitoring the activities of the executive branch to 

make certain that there are no excesses? And the honest answer 

is we have not and we cannot. 

Much of what is done under the PATRIOT Act is done in secrecy. 

The targets never know that they are being the subject of search 

and surveillance. In addition, there are gag orders that are put in 

place that really restrain everyone from disclosing what has occurred. You serve on the Intelligence Committee, as I did for 4 

years. You know the cat-and-mouse game we play with those agencies trying to figure out exactly what is being done, hearing after 

weary hearing where little or nothing is said in an attempt to 

make sure that Members of Congress really do not know all the details and facts. 

We need to respect our institution and our responsibility when 

it comes to checks and balances. The PATRIOT Act is, frankly, a 

large donation of our authority and responsibility to the executive 

branch without adequate safeguards there to protect individual 

rights and liberties. I think that is what is dangerous. 

Senator FEINSTEIN. Let me ask a couple of specific questions on 

215, on the John Doe roving wiretaps, on 802, and on delayed notice. Let me begin with delayed notice. 

325

Despite some confusion, this section, while part of the PATRIOT 

Act, involves Title 18 and a much more traditional law enforcement 

technique. So-called sneak-and-peek warrants are an important 

law enforcement tool. My concern is that the catch-all section, 

which allows issuance of such a warrant when it would jeopardize 

an investigation, is unnecessary and may invite abuse. I would appreciate your views on this. 

Senator DURBIN. Senator Feinstein, the SAFE Act eliminates 

that Section 802. 

Senator FEINSTEIN. Pardon me? 

Senator DURBIN. The SAFE Act would eliminate that 802 Section 

that you are concerned about. 

Senator FEINSTEIN. Okay. Now, let me ask you about the definition of domestic terrorism. So it eliminates that as well? 

Senator DURBIN. I would say that it amends it. Currently, the 

definition of domestic terrorism could include civil disobedience by 

political organizations. While civil disobedience is and should be illegal by its nature, it is not necessarily terrorism. The SAFE Act 

would limit the qualifying offenses for domestic terrorism to those 

that constitute a Federal crime of terrorism instead of any Federal 

or State crime, as it is currently written. So we try to really bring 

it right back into the terrorism area, which was our focus in the 

PATRIOT Act, but not let it extend to any violation of Federal or 

State law, criminal law, which I think is a more expansive definition. 

Senator FEINSTEIN. I think—

Senator CRAIG. Senator, I would also add that you and I lived 

through an era in our country in which civil disobedience at times 

grew to violence, and it changed the character of Government for 

a time. And it also created law as a result of it. 

At the same time, we have to continually safeguard the right of 

civil disobedience for the purpose of political expression, and there 

is a line you have to draw, and we think that we have clarified that 

for this purpose. 

Senator FEINSTEIN. I think, Mr. Chairman, that one of the things 

we might do is take a look at the definition of domestic terrorism. 

Some people think it is too broad and that it should be specifically 

narrowed. 

Let me ask a question on 215, the so-called library provision. We 

have had testimony that the library provision has not been used 

with respect to libraries, but has been used with respect to the collection of financial records. What exactly does the SAFE Act do 

with respect to Section 215? 

Senator DURBIN. Thank you. Senator Feinstein, this situation 

now under 215 allows what we think to be an overly broad and expansive search of records. Concerns have been expressed by librarians, but also by others, as to whether or not they would be forced 

to turn over records about many individuals, some of whom were 

not the target of suspicion, and thereby violate the privacy and disclose information that people did not believe would be readily disclosed except under criminal circumstances. 

And so what we do is to say the Government would be able to 

obtain an order if they could show facts indicating a reason to believe the tangible things sought relate to a suspected terrorist or 

326

spy. As is required for grand jury subpoenas, the SAFE Act would 

give the recipient of a FISA order the right to challenge the order, 

requiring a showing by the Government that a gag order is necessary, place a time limit on the gag order, which could be extended by the court, and give the recipient the right to challenge. 

So many times we heard the Department of Justice defending 

this provision, Section 215, saying that it was analogous to a grand 

jury subpoena. With the SAFE Act, Senator Craig and I draw the 

analogy tighter and say then let’s live by that standard, if that is 

exactly as it should be, so that people know that they are the subject of such a search and that the Government specify that they are 

not going after everyone who checked a book out of the L.A. Public 

Library but, rather, specific people for whom they have identified 

some concern about the possibility of terrorism. 

Chairman SPECTER. Senator Feinstein, your time has expired. 

Senator FEINSTEIN. Thank you very much. 

Chairman SPECTER. We have a very big second panel, six witnesses. 

Senator Kyl? 

Senator KYL. Thank you, Mr. Chairman. 

On that last point, the recipient, that is to say, the library or the 

hotel or whoever is being asked to supply records, has a right to 

challenge that and require the court process for a subpoena. Is that 

not correct? Under the existing law. 

Senator DURBIN. No, that is not true. 

Senator KYL. Why isn’t it? 

Senator DURBIN. They don’t have the authority to challenge the 

order. 

Senator KYL. They certainly do. It is a voluntary request for the 

records, and if they decide that they don’t want to comply with it, 

they have a right to require—

Senator DURBIN. It is not a voluntary request, Senator. It is a 

court order. They are faced with producing the information. 

Senator KYL. They have a right to contest the court order, do 

they not? 

Senator DURBIN. I do not believe they do. 

Senator KYL. Okay. We have a disagreement on that. 

The people who are the subject of a search—

Senator CRAIG. Jon? Senator? 

Senator KYL. Let me just ask this question: The people that are 

the subject of a search are not necessarily known before the records 

are divulged, are they? 

Senator CRAIG. No. 

Senator KYL. In other words, the point of the search is to find 

out who might have checked out a book on bomb-making. Isn’t that 

correct? 

Senator DURBIN. The point we are making is that by general 

principle, constitutional principle, the Government cannot say we 

are going to subpoena the records of everyone living in Yuma, Arizona, to find out what they have been reading, to see if among all 

those people we can find suspicion. 

We live in a world—

Senator KYL. Do you know of any case where anybody has suggested that? 

327

Senator DURBIN. But, you see—

Senator KYL. That is a red herring. The point of the business 

records, is it not, is to try to discover who might have checked into 

this hotel for the last three nights or who might have checked out 

a book on bomb-making, that kind of thing. You don’t know necessarily the subject of your inquiry before you make it, do you? Go 

ahead, Senator Durbin. 

Senator DURBIN. The point I am getting to, Senator, is that if 

you want to depart from the basic body of law which has governed 

us, probable cause before the Government goes forward, that 

would, in fact, violate the privacy of an individual based on that 

probable cause, which has always been our standard, then you 

would oppose the SAFE Act. 

What we have said is you have to have some linkage here, and 

to argue that we don’t know it has been violated is to state the obvious. Of course we don’t. The Government is not forthcoming telling us how this is being used. We meet in closed session to talk 

about the possibilities of how it is being used. We do not have the 

tools to really decide whether there is an abuse. The checks and 

balances are not really—

Senator KYL. Let me ask you both this question: Do you believe 

that the same kind of authority then should be eliminated with respect to all of the other kinds of investigations that it already has 

been authorized for under our law, that terrorism is the only possible crime that should be eliminated from this—that terrorism 

should be the only crime for which this particular tool should not 

be available? Senator Craig? 

Senator CRAIG. No, I am not suggesting that, nor do I believe the 

authority exists today to walk into a library and sweep the records. 

It does now under this Act. And I don’t think it is a red herring, 

Jon, at all to suggest that you might get a rogue agent, not necessarily a rogue agent, who did just that and, therefore, found everybody in Yuma, Arizona, who checked out bomb-making and 

began private and secret investigations of why they did it. 

Senator KYL. Okay. May I just ask then, to follow up on Senator 

Feinstein’s question, do either of you have an example in any other 

context—because there are no examples in the context of terrorism—where this general business records authority has been 

abused? 

Senator DURBIN. I would just say in response to that, if you want 

to follow the basic standard of probable cause or grand jury subpoena where they can be contested, where there is disclosure, 

where someone can say this is too far-reaching, then I think there 

is a safeguard built into the system. Such a safeguard does not 

exist when it relates to the PATRIOT Act, and that is the point 

we—

Senator KYL. So there are no examples either outside the PATRIOT Act or within the PATRIOT Act that either of you can cite 

where there was an overly broad request under the business 

record—

Senator CRAIG. Jon, I believe that is totally the wrong premise. 

I don’t believe you wait until somebody has been dramatically injured before you re-establish—

Senator KYL. Okay—

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Senator CRAIG. Now, wait a moment. I think it is tremendously 

important—

Senator KYL. My time is just aboutout. 

Senator CRAIG. That is true—

Senator KYL. I understand the point that you are making—

Senator CRAIG. But what is important today is there is a perception across the land—

Chairman SPECTER. Senator Kyl—

Senator KYL. I just wanted to conclude my point here. The point 

of the sunset was to provide a testing period to see whether it 

worked, to see whether there were problems. In this particular 

area, because there have been no problems, it seems to me that the 

assumption underlying the sunset provisions ought to then move 

forward, which is, there being no problems, the Act should be reauthorized. 

Senator DURBIN. Mr. Chairman, may I say a word? 

Chairman SPECTER. Yes. 

Senator DURBIN. This is cloaked in secrecy, and because of secrecy we cannot exercise the oversight we need to protect individual rights and liberties. And to suggest that because we cannot 

come forward and give you specific examples is to state the obvious. It is designed so that no one can come forward and give you 

these examples. 

Senator KYL. May I just—I have to follow up on that. Isn’t it true 

that in testimony before this Committee the Attorney General and 

other Federal law enforcement officials have testified that this particular provision as to libraries has never been used? So it is not 

secret. They have actually testified to that. And isn’t it also true 

that under the PATRIOT Act we are required—that the Department of Justice is required to submit a report to Congress so that 

it is not cloaked in secrecy and we do know whether or not there 

has been an abuse? 

Senator DURBIN. There has been a statement that it has not 

been used as to libraries, that is true. But it has been used some 

35 other times. 

Senator KYL. And we are aware of that, so it is not cloaked in 

secrecy, is my point. 

Senator DURBIN. I would say to the Senator, we are aware of it 

in the most general terms. But notwithstanding the reputation and 

integrity of any Attorney General, we have usually said in Congress we are a separate, coequal branch which has the power and 

responsibility of oversight. We are giving that up when we do not 

have the information to really form an opinion and to hold the Government accountable. 

Chairman SPECTER. Thank you very much, Senator Kyl. 

Senator Feingold? 

Senator FEINGOLD. Thank you, Mr. Chairman. I have a short 

statement that I would like to ask to be placed in the record. 

Chairman SPECTER. Without objection, it will be made a part of 

the record. 

Senator FEINGOLD. And I just want to say how pleased I am to 

be joining Senator Craig and Senator Durbin in forming the Bill of 

Rights Caucus to work to ensure that civil liberties are adequately 

protected in legislation like the PATRIOT Act. 

329

Mr. Chairman, these two Senators and you, the Chairman, and 

the Ranking Member are just doing a tremendous service not only 

to the Committee and the Senate, but to the whole process of fighting terrorism by having these hearings. The conversations that are 

starting to occur around this table to me are exactly what is needed. And I would say to my colleague from Arizona, because he is 

such a hard-working and always prepared Senator, I hope you will 

let this process play out. 

For example, on these things that just came up today, you know, 

I cannot prove all kinds of abuses any more than I think you can 

prove there haven’t been any abuses. But that is not our task. As 

Senator Craig indicated, our responsibility now is to make sure 

that we fix this thing where it needs to be fixed, to make sure that 

future abuses don’t occur, whether or not abuses have already occurred. And, you know, I see progress, for example, in the sneakand-peek provisions, delayed notification—which was one of the 

reasons I originally opposed the bill. 

Senator Feinstein for 2 years has indicated she has not heard or 

seen of any abuses of the bill. But she now sees, because she also 

always makes sure she studies things very carefully, that there is 

a catch-all provision that is too broad and cannot be justified in 

terms of the legitimate needs of sneak-and peek provisions. 

So it is not a question of do we lay down the hammer and say 

nothing bad has happened and, therefore, we should just renew it? 

Or there have been all kinds of abuses and the question is: Is this 

particular catch-all exception justified? And I think it is becoming 

clear it is not. So it shouldn’t be a victory for either side if we get 

rid of that provision. It is just fixing the bill. 

The same thing goes for the library provision, Section 15. This 

has been an around-and-around thing. Yes, apparently Section 15 

has not been used to command library records because many times 

library records have been obtained from librarians who have simply 

voluntarily given them. But the fact is library records have been 

obtained. That testimony was given under oath before this Committee. It is also perfectly possible that Internet records in the library were obtained under the national security letter provision. So 

it is not accurate to state that no library records have been obtained. 

And the point that Senator Durbin was making I want to clarify 

here is if there is an ability to challenge under 215, I cannot find 

it. And the Senator from Arizona almost seemed to be saying that 

it would surprise him if there wasn’t such a protection. So why 

don’t we simply work together to make sure that there is an ability 

to challenge, a legitimate ability to challenge, and forget about who 

was right or wrong in the first place about it. 

So I would simply urge—that is the kind of good-faith process I 

want to enter into here. I am not recommending repealing a single 

provision of the USA PATRIOT Act nor do I think the leaders here 

are. We simply want to put the protections that are needed. 

So, Mr. Chairman, thanks for the opportunity to make those 

comments. 

Chairman SPECTER. Thank you, Senator Feingold. 

Senator Biden? 

330

Senator BIDEN. I have no questions for the witnesses. I will have 

questions for the record, but I do not want to tie them up. 

Chairman SPECTER. Thank you very much. 

Senator Durbin, you had made a comment that the information 

in the closed session is not available to the public generally. Of 

course, it is available to you as a member of the Committee, and 

if other Senators wanted to have access to what went on in closed 

session, it would be my inclination to make that available to members. And when we Act on legislation and file al report, it would 

be my intention to give as full a picture publicly as we can at that 

time to what we know. If there are sources or methods or there is 

confidential information, we would respect that. But we would intend to do what we could to put that on the record. And we intend 

to proceed on these oversight hearings. 

We thank you for the compliments, Senator Craig, about the 

Ruby Ridge hearings. You were an ad hoc member of that Committee. You were not on the Committee, but when you showed a 

real interest in it, I was the Subcommittee Chairman and invited 

you to attend. And as Senator Leahy has noted, that resulted in 

the change of the FBI rule on the use of deadly force, and Randy 

Weaver said that had he known he would have been treated so 

fairly by the United States Senate, he would have come down off 

the mountain. That is an oversight hearing 10 years old that has 

been repeatedly cited, practically solely cited as the oversight process, but this Committee intends to do a great deal more of that. 

We thank you for coming. 

Senator LEAHY. Could I just make one note, Mr. Chairman? We 

talk about—and as I said, there are many parts of the PATRIOT 

Act I like. I helped write or did write several parts of it and with 

others in a cooperative effort. But before we think this is the only 

thing we have for our security or the ability to get terrorist information, whether it is in what somebody’s records have been in a 

library or anywhere else, we have always had the ability to have 

a grand jury subpoena. We have always been able to do that irrespective of whether the PATRIOT Act was there or not. And I 

think I just don’t want—even though there are parts of this Act I 

support and parts of it that bring us into the digital age, for example, the modern age of law enforcement, let us not think that somehow the United States prior to the PATRIOT Act was undefended. 

I think it was far—I mean, it sort of overlooks the fact that we had 

hundreds of hours of tapes, for example, of people talking about 

terrorist acts that the FBI hadn’t gotten around to translating prior 

to September 11th. We had a whole lot of other things we had 

available to us that we had gotten through the appropriate methods; we just had not connected the dots. 

Chairman SPECTER. Thank you very much, Senator Leahy. 

The exchange I think has been very fruitful. If we had this kind 

of floor debate as the exchange between Senator Kyl on one side 

and Senator Craig and Senator Durbin on the other, we might get 

farther in our floor debate. So at least we have the Committee 

hearings. 

Before calling the second panel, Senator Biden, would you care 

to take 5 minutes for an opening statement? 

331

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

FROM THE STATE OF DELAWARE 

Senator BIDEN. Yes, I will take a few minutes if I may, Mr. 

Chairman. As usual, thank you for holding this hearing. 

Let me begin by suggesting that from my perspective, Mr. Chairman, as we approach this fourth anniversary of September the 

11th, it is important we do everything in our power to identify and 

dismantle terrorist groups, but also find out what works and 

doesn’t work and how well it works and doesn’t work. And let me 

raise three quick points, if I may. 

First, I believe the PATRIOT Act was a reasonable and necessary 

response to the terrorist attacks of 9/11. As I said before, no matter 

who was President, no matter who was in the Congress, there 

would have been mistakes made. There would have been things, 

looking back on it, we should do differently, and that is the context 

we should be looking at this. 

I believe that when we passed this bill, it made sense. As a matter of fact, as far back as 1995 and 1996, I proposed similar provisions relating to the Oklahoma bombing case, that we should 

change the law similarly. 

It simply did not make sense to me and it still does not make 

sense to me that law enforcement has certain tools that we can use 

against organized crime and drug gangs, but tools are not available 

to deal with terrorist organizations. And I said at the time what 

is good for the mob ought to be good for terrorists. Thus, I supported the PATRIOT Act because I think it meant moving toward 

a more level playing field involving terrorism with those garden-variety cases like drug and organized crime. And I also strongly supported its reauthorization. 

But, secondly, I am aware that there are significant criticisms of 

the Act in recent years, and as I have said before, I believe much 

of the criticism is both misinformed and overblown. But that is not 

to say the critics aren’t raising very legitimate concerns about how 

the administration has handled the war on terror. 

I have been incredibly concerned with the decisions the administration has made involving the treatment of so-called enemy combatants, its decision to withdraw or withhold the application of the 

Geneva Convention to the hostilities in Afghanistan and the Justice Department’s role in crafting what I believe to be misguided 

rules of interrogation. And I fear that these decisions make it more 

difficult to fight terror while placing our men and women on the 

ground in more jeopardy than they would otherwise have been. 

I mention this because our ability to reauthorize the PATRIOT 

Act may be and is going to be made more difficult because of these 

misguided decisions, in my view, that the administration has made 

in other areas in the war on terror. And sometimes their actions 

there I find, as I am home and around the country, are confused 

with changes in Title 18, which they are not. 

The third and final point that I would like to make, Mr. Chairman, is that we need to carefully consider whether we can improve 

the PATRIOT Act. I am open to considering whether we need to 

redefine or eliminate parts of the Act. I have been a Senator a long 

time, and like many of us here, I have been involved in every major 

piece of criminal and terrorist legislation in the past three decades. 

332

And I have even cosponsored or written some of them. But every 

time we pass one of these laws, whether it was the Crime Control 

Act of 1994 or less significant pieces of legislation, I have said at 

the time I have urged their passage that we should go back and 

take a look at them a year or two later and find out whether or 

not what we passed has trenched upon anyone’s civil liberties or, 

conversely, whether there are ways we can make it stronger to be 

able to deal with crime and terror. And so I think this is a logical 

process. We should be going back and thoroughly looking at what 

we did. 

Today’s hearing, in my view, is part of that process, and I think 

we have to ask a number of tough questions, not just about the 16 

provisions which sunset at the end of this year, but the entire Act. 

And so I think we have to look at Section 215. Should we redefine 

it? Obviously, you all know 215 addresses the access to business 

records in terrorism investigations. Should it be redefined to make 

it clear that the same relevant standards which govern grand jury 

subpoenas also apply to these cases? I think maybe we should. 

Section 206, which addresses roving wiretaps, should we make it 

absolutely clear that the Government cannot get a John Doe wiretap against an unknown person? 

Section 213, which addresses sneak-and-peek search warrants, 

should that include reasonable future notification requirements to 

the target as we have long done with wiretap investigations 

against the mob and drug gangs? 

So, in conclusion, Mr. Chairman, I believe these are just a few 

of the reasonable questions we need to ask and the potential 

tweaks and refinements to improve the credibility of the law without weakening the ability of the FBI or others to fight terrorism. 

So I am looking forward to the hearing, Mr. Chairman, and I thank 

you for calling it. 

Chairman SPECTER. Thank you very much, Senator Biden. 

While we have a number of Senators here, we have an agreement by Senator Leahy and myself to have a markup tomorrow on 

the asbestos bill, which will be in addition to our executive session 

on Thursday. We very much would appreciate attendance so that 

we could have a quorum and move ahead on that important bill. 

There are quite a number of amendments pending, and we are 

seeking to make modifications to accommodate members to the extent we can. So that will be held tomorrow morning at 9:30. 

Chairman SPECTER. I want to call the second panel now: Former 

Congressman Bob Barr, Professor David Cole, Daniel Collins, 

James Dempsey, Andrew McCarthy, and Suzanne Spaulding. This 

distinguished panel has been called in alphabetical order. It is always hard to establish priorities among people with such outstanding records. 

Our first witness is former Congressman Bob Barr, who represented the 7th District of Georgia in the U.S. House from 1995 

to 2003. He has been engaged in many efforts on civil liberties, a 

member of the Long-Term Strategy Project for Preserving Security 

and Democratic Norms in the War on Terrorism at the Kennedy 

School of Government at Harvard. He had been United States Attorney for the Northern District of Georgia and also served as an 

official with the CIA from 1971 to 1978. 

333

Nice to have you on Capitol Hill, Congressman Barr. The floor 

is yours for 5 minutes. 

STATEMENT OF BOB BARR, FORMER MEMBER OF CONGRESS, 

AND CHAIRMAN, PATRIOTS TO RESTORE CHECKS AND BALANCES, ATLANTA, GEORGIA 

Mr. BARR. Thank you very much, Mr. Chairman. I appreciate 

yourself and the Ranking Member and the other members of this 

Committee, both those that are currently here and those that were 

here earlier at the beginning. And I know, as we always faced in 

the House, there are competing demands and floor action and people come and go from the Committee. But I also know that particularly members of this Committee, whether they are present for an 

entire hearing or not, pay very, very close attention to the materials that are submitted, the testimony that is rendered, and the 

issues involved. That has always been the hallmark of this Committee, and I appreciate the honor of being invited to play a small 

role in its deliberations on the USA PATRIOT Act today and in the 

weeks and months ahead. 

I have listened to the testimony of the first panel, the two distinguished Senators, and the comments, questions, and dialogue by 

members of this Committee, and I think that the witnesses presented very, very eloquently the position that I endorse in terms 

of the need to pay very close attention to the USA PATRIOT Act, 

to conduct the oversight that is implicit in the provision of the sunset clauses in the legislation, to look very carefully at the ways in 

which the Act and its provisions have been used over the ensuing 

three and a half years or so since its enactment, and to look at possible problems. And, of course, one of the things that this Committee does look at is not simply bald acts of abuse with Federal 

legislation. We all know that abuse can be very insidious. It can 

be systematic. It can be very subtle. It may not even occur in order 

for this Committee to deem it necessary to take a look at powers 

granted to the Federal Government and say we think that these 

ought to be amended. 

And that of course is explicitly why the Congress, in its wisdom, 

enacted as parts of the USA PATRIOT Act in 2001 the sunset provisions. 

I do think that when one looks, particularly as a distinguished 

member of this Committee—and I had the honor of serving in its 

counterpart over on the House side for 8 years—I do think that 

from one’s background, in my case in particular as both a United 

States Attorney for the Northern District of Georgia as well as having spent several years with the CIA and bringing a fairly comprehensive background to this debate, including my service in the 

House, I can say that I believe that in large measure, the PATRIOT Act, as Senators Craig and Durbin, as proponents and advocates and co-sponsors of the SAFE Act have indicated, has served 

this country well. But that is not to say that it is a perfect piece 

of legislation, an even if in fact the amendments proposed to the 

USA PATRIOT Act by the SAFE Act were enacted, I dare say probably it still would not be a perfect piece of legislation. It is constantly going to be, as it ought to be in our system of Government, 

a work in progress. 

334

But I do think, Mr. Chairman, that the proposals contained in 

the SAFE Act are reasonable, they are modest. In my view again, 

as a former U.S. Attorney, as a former official with the CIA, do not 

remove in any way, shape or form, important powers that the Government needs to fight serious acts of criminal activity, including 

acts of terrorism. The amendments proposed, for example, to the 

so-called sneak-and-peak powers contained in section 213 of the 

PATRIOT Act clearly recognize that this is a power that the Federal Government needs from time to time, but it ensures that that 

need remains the exception and not the rule, and it clearly contemplates that there will be circumstances, should be circumstances under which the Federal Government can use the extraordinary remedy or take the extraordinary step of conducting a 

search of a person’s home or business without providing contemporaneous notice, when to do otherwise would seriously endanger 

national security. 

That is the theme, Mr. Chairman, that underlies all of the various changes proposed in that modest piece of legislation called the 

SAFE Act. I commend those members of this body and their counterparts in the House who have already endorsed this legislation. 

I commend it as one of the pieces of legislation or one of the vehicles that the Committee might carefully scrutinize in its efforts to 

ensure that we always maintain that proper balance between the 

Bill of Rights and the need to fight acts ofterrorism and other serious criminal activity. 

I have submitted and would ask that my entire written comments be included in the record, and I stand ready to provide any 

additional written materials or answer any questions that the 

Committee or its distinguished members might have. 

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

the record.] 

Chairman SPECTER. Thank you very much, Congressman Barr, 

and your full statement will be made a part of the record, as will 

all statements be made a part of the record. 

We turn now to our second witness who is Professor David Cole, 

Professor of Law at Georgetown University, had been staff attorney 

for the Center for Constitutional Rights, and had served as a law 

clerk to a very distinguished Federal Judge, Arlen Adams, who 

happens to be a Philadelphian. 

Welcome, Professor Cole, and we look forward to your testimony. 

STATEMENT OF DAVID COLE, PROFESSOR OF LAW, 

GEORGETOWN UNIVERSITY LAW CENTER, WASHINGTON, D.C. 

Mr. COLE. Thank you, Chairman Specter, Senator Leahy, members of the Committee, for inviting me here to testify. 

I want to make two points in my oral testimony. The first is that 

an inquiry into the PATRIOT Act ought to be the beginning, not 

the end, of congressional oversight of the executives carrying out 

the war on terrorism and particularly of the civil liberties abuses 

that have occurred therein. 

The second point I want to make is that the worst provisions of 

the PATRIOT Act are by and large not those sunsetted, but other 

provisions that are not subject to sunset, but nonetheless deserve 

335

your attention, namely the immigration provisions and the material support provisions. 

So first with respect to the first point, that this should be the beginning, not the end. Defenders of the PATRIOT Act often complain that the PATRIOT Act gets criticized for more than it deserves, and I think there is some truth to that because many of the 

worst abuses of civil liberties that have been carried out by the 

Bush administration in the war on terror have been carried out 

outside the PATRIOT Act. A national campaign of ethnic profiling 

and a mass roundup of foreign nationals carried out outside of the 

PATRIOT Act, 80,000 people called in for special registration simply because they came from Arab and Muslim countries, 8,000 

sought out for FBI interviews simply because they came from Arab 

and Muslim countries, 5,000 by the Government’s count detained 

in preventive detention measures, almost all of them Arab and 

Muslim. And of these people not one today stands convicted of a 

terrorist crime. Zero for 5,000, zero for 8,000, zero for 80,000. But 

that is not with respect to the PATRIOT Act. 

The Enemy Combatant Authority, the Attorney General regulations that allow the FBI to spy on religious services without any 

suspicion of criminal activity, data mining developments, and of 

course torture. All of these are serious concerns that arise outside 

of the PATRIOT Act. That does not mean however that you should 

take the PATRIOT Act any less seriously. It simply means that you 

should take the other abuse equally seriously. 

The courts,to my mind, have played a very important role I 

checking the administration. They have ruled against the administration on the enemy combatants, on military tribunals, on the PATRIOT Act itself, on closed immigration hearings, on the refusal to 

divulge documents regarding the torture scandal. I think Congress 

also has a responsibility to check the administration. 

The second point I want to make is that the worst provisions of 

the PATRIOT Act are not those subject to sunset. The immigration 

provisions allow for deportation of individuals for wholly innocent 

association with any group that we have designated as a bad 

group, regardless of the individuals’ conduct in connection therewith. They allow for the exclusion of foreign nationals based on 

pure speech, pure speech. No conduct, no concern about threats, 

pure speech. They allow the Attorney General to detain foreign nationals without charges, and without showing that there is any 

basis for their needing to be detained. 

The Civil Liberties Restoration Act has been introduced to try to 

respond to some of these abuses and the other immigration abuses 

that I laid out earlier, but it has not even gotten a hearing. And 

instead what is Congress doing? It is about to pass, very likely 

today, maybe tomorrow, the Iraq Supplemental Bill in which there 

is a provision which dramatically expands the scope of the immigration terrorism grounds to essentially resurrect the McCarranWalter Act. Under this law you will be deportable if you had any 

association at any time in your life with any organization that ever 

used to threatened to use a weapon period. There is no defense to 

show that you had did not take part in the violence. You are deportable even if your father engaged in that, was a member of such 

a group. 

336

So Nelson Mandela’s child, if he has a child, would be deportable 

from this country. People who supported the Israeli military, the 

Palestinian Authority, the African national Congress, all deportable 

regardless of whether their support actually furthered any illegal 

activity. 

That radical expansion is being carried out without any consideration by this Committee, without any open debate. It was put in 

by Senate conferees in conference. 

So if anything, the abuses that we have seen since 9/11 in the 

immigration area should call for more oversight and more limitations on congressional power. Instead what Congress is about to do 

is to give the administration essentially a blank check. 

I only have a few more moments I will leave for questions. The 

other two aspects I think raise very serious concerns outside of the 

sunsetting provisions, and those are the criminalization of pure 

speech in the Material Support Statute, which has been struck 

down in a case that I am handling, and the authority to freeze assets of any entity in the United States without showing that they 

engaged in any violation, and then to defend that action using secret evidence in court denying the entity any chance to defend 

itself. 

Thank you very much. 

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

the record.] 

Chairman SPECTER. Thank you, Professor Cole. 

Our next witness is Daniel Collins, Partner in the Los Angeles 

Office of Munger, Tolles and Olsen. He had served from June of 

2001 to September of 2003 as Associate Deputy Attorney General, 

and had been the Department’s Chief Privacy Officer. A graduate 

of Harvard College and Stanford Law School, he clerked for Circuit 

Judge Nelson and Supreme Court Justice Scalia. 

Thank you very much for joining us, Mr. Collins, and we look forward to your testimony. 

STATEMENT OF DANIEL P. COLLINS, MUNGER, TOLLES AND 

OLSEN, LLP, LOS ANGELES, CALIFORNIA 

Mr. COLLINS. Thank you, Chairman Specter. Good morning Senator Leahy and distinguished members of the Committee. I am 

grateful for the opportunity to testify here today on this important 

subject. 

Three-and-a-half years ago the USA PATRIOT Act was signed 

into law with overwhelming support in both houses. That strong bipartisan consensus reflected the gravity and importance of the 

chief objective of that legislation, which was set forth right in the 

title, ‘‘Providing appropriate tools required to intercept and obstruct terrorism.’’ 

As the Committee is well aware, some 16 provisions of Title II 

of that Act are scheduled to expire at the end of this year absent 

action by the Congress. In my view, these 16 provisions should be 

made permanent because today, as in 2001, they remain appropriate tools in the war on terror. I have addressed each of those 

16 statements as well as Section 213, which is not subject to sunset, in my written statement, and I will focus in my oral remarks 

on three of them, Section 206, 215 and on Section 213. 

337

With respect to Section 206, which deals with the issue of roving 

wiretaps, the change that is actually made by the PATRIOT Act 

itself is quite modest, and I think when you compare it to the regime of Title III, you will see that there is a critical difference that 

I think renders unnecessary the changes that would be made by 

the SAFE Act to the FISA roving wiretap authority. Under the current version of Section 105(c)(1)(B) of FISA, a FISA order authorizing electronic surveillance only needs to specify the nature and location of each such facility or place ‘‘if known.’’ That critical phrase 

was not added by the PATRIOT Act, but by the Intelligence Authorization Act for Fiscal Year 2002, and that amendment is therefore not subject to a sunset. 

The provision that the PATRIOT Act added was a requirement 

that you do not necessarily have to specify, if not known in advance, the actual wire service provider. Rather you could have an 

order that whatever service provider became relevant would have 

to provide the assistance that is required. 

Moreover, both the PATRIOT Act and the change that was made 

by the Intelligence Authorization Act leave in place the provision 

of Section 105(a)(3)(B) of FISA, which continues unambiguously to 

state that an authorizing order may only be issued if, inter alia, 

there is probable cause to believe that each of the facilities or 

places at which the electronic surveillance is directed is being used 

or is about to be used by a foreign power or an agent of a foreign 

power. What that means is that even when it cannot be specified 

in advance what particular facilities and places will be surveilled, 

the Government under FISA must nonetheless provide a sufficient 

description of the categories of facilities and places that will be 

surveilled, presumably by describing their connection to the target, 

so as to permit the court to make that probable cause determination. 

There is an analogous requirement to the one I just described in 

FISA in Title III, but Title III’s roving wiretap provision waives 

that requirement. FISA does not. That critical difference provides 

an additional safeguard in FISA that I think has been overlooked 

in the analogy that the SAFE Act appears to attempt to draw between Title III and FISA, and I think renders the balance that is 

already struck by the PATRIOT Act on this subject a different one 

from Title III, but nonetheless an adequate one. 

With respect to Section 215, this is, as many have noted, an effort to provide on the counterintelligence side an analog to the ability to get business records on the criminal side through the use of 

grand jury subpoenas. There has been an acknowledgement by the 

administration, the Attorney General in his recent testimony, that 

this provision could benefit from some clarifications. We have already seen in the discussion this morning a dispute over whether 

or not a court challenge to an order by a recipient of such an order 

is authorized. That could be clarified. That is a subject that is addressed in the SAFE Act. I think that the SAFE Act though in 

specifying that raises a number of issues that I think need careful 

study. 

For example, the SAFE Act would impose an automatic stay on 

compliance with the order pending the challenge, and automatic 

stays are not typical in many contexts. It is not clear that that 

338

should be the case here. Also the analogy to the use of CIPA in the 

civil context is something that I think needs very careful study. 

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

for the record.] 

Chairman SPECTER. Thank you very much, Mr. Collins. 

Our next witness is Mr. James Dempsey, Executive Director for 

the Center for Democracy & Technology. He is currently engaged 

in subject matters of privacy and electronic surveillance issues, and 

heads CDT’s International Project. He had been Deputy Director 

for the Center for national Security and had been Assistant Counsel for the House Judiciary Subcommittee on Civil and Constitutional Rights. 

Thank you for joining us, Mr. Dempsey, and we look forward to 

your testimony. 

STATEMENT OF JAMES X. DEMPSEY, EXECUTIVE DIRECTOR, 

CENTER FOR DEMOCRACY & TECHNOLOGY, WASHINGTON, 

D.C. 

Mr. DEMPSEY. Good morning, Mr. Chairman, members of the 

Committee. Thank you for the opportunity to testify today. From 

this kind of detailed and objective inquiry and dialogue we can attain the balance that was left aside in the pressure and emotion 

of the weeks immediately after 9/11. 

In CDT’s view, Mr. Chairman, there are few if any provisions in 

the PATRIOT Act that should sunset. The question before us is 

what checks and balances should apply to those powers. In our 

view, every provision of the PATRIOT Act that is of concern can 

be fixed, preserving the investigative tool, but subjecting it to appropriate standards and judicial and legislative oversight. 

In order to understand what is right and what is wrong with the 

PATRIOT Act, consider the key protections traditionally surrounding Government access to information under the Fourth 

Amendment. 

First, as a general rule, searches and seizures and access to private data should be subject to prior judicial approval based on 

some factual predicate. Second, a warrant or subpoena must describe with particularity the items to be seized or disclosed. Third, 

individuals should have notice when the Government acquires their 

personal information, either before, during or after the search. And 

finally, if the Government overreaches or acts in bad faith, there 

should be consequences, including making sure the Government 

does not use the information improperly seized. 

These components of a Fourth Amendment search—judicial approval, particularity, notice and consequences for bad behavior—

are independent. When it is necessary to create an exception to 

one, that does not justify a blanket exception to all four. However, 

too often in the PATRIOT Act, when the Government had a good 

argument for dispensing with one or another of these protections, 

it insisted that Congress eliminate all of them, leaving many of the 

powers in the PATRIOT Act with none of the traditional checks 

and balances. 

The issue has been raised time and again about abuses—and I 

wish Senator Feinstein were here because I would like to gently 

339

correct Senator Craig and Senator Durbin. I think there is evidence 

of abuses now, despite the secrecy surrounding the Act. 

Section 215, sneak-and-peek: the FBI has used that to break into 

a judge’s chambers secretly in a judicial corruption case, to break 

into an office in a Medicare fraud investigation. Now, these are 

permitted within the terms of the legislation, but I think those are 

abuses. I think those are not the kind of violent crime or terrorist 

crime for which a secret search is appropriate. The Justice Department has admitted that in one case the search was delayed for 406 

days. I think that is an abuse, a delayed notice for 406 days under 

the PATRIOT Act. 

Section 805, material support: The Government charged with 

material support a person who was posting on his website material 

that it turned out was also posted on the website or linked to from 

the website of one of the prosecution’s witnesses. That came out in 

trial. The jury acquitted that person after he had spent a year and 

a half in jail. I think that is an abuse. 

The national Security Letter provision has been declared unconstitutional by a Federal District Court Judge. I do not know if you 

would call that an abuse or not, but a provision of the PATRIOT 

Act has been declared unconstitutional. 

The Mayfield case offers an interesting window. That was a 

criminal case, and yet they used a sneak-and-peek secret search 

under FISA, with no notice. Ultimately, the case blew up in the 

Government’s face partly because the Spaniards kept saying, ‘‘You 

got the wrong guy.’’ If the Spaniards had not been saying ‘‘He’s the 

wrong guy,’’ it is very possible that Mayfield would have gone to 

trial based upon the testimony of an FBI fingerprint expert. 

Now, one of the Justice Department’s central arguments is that 

the PATRIOT Act standard of mere relevance under the FISA pen 

register provision, Section 215, and the national Security Letters, 

is just like the standard for grand jury subpoenas in criminal cases. 

This argument overlooks the fundamental differences between 

criminal investigations and intelligence investigations. If the Government wanted to use grand jury subpoenas against terrorists, 

they could since terrorism is a crime. But intelligence investigations have additional powers and features which need countervailing protections. They are much broader. They are not cabined 

by the criminal code. They can collect information of First Amendment activities. They can even be based on First Amendment activities in part against U.S. citizens. They are secret. 

In the criminal context, the trial is the big show. And as you 

know, Mr. Chairman, the prosecutor’s whole conduct is put under 

scrutiny there. None of that happens in the intelligence case, unless there is a trial. Therefore we need countervailing protections 

to account for that. 

Mr. Chairman, I will be happy to work with you and members 

of the Committee on the SAFE Act. As Senator Biden referred to, 

how can we fix this legislation? Of course, mistakes were made. It 

is inevitable. Let us go back and look at it and put some of these 

checks and balances back in. 

Thank you, Mr. Chairman. 

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

340

Chairman SPECTER. Thank you very much, Mr. Dempsey. 

Our next witness is Mr. Andrew McCarthy, Senior Fellow at the 

Foundation for the Defense of Democracies here in Washington. 

Had been a Federal prosecutor in the U.S. Attorney’s Office for the 

Southern District of New York, where he had some notable convictions leading to prosecution against the terror organization of 

Sheik Omar Abdel Rahman, who was convicted of conducting a war 

or urban terror in the United States, and also led the litigation 

over crucial confession evidence which helped secure convictions in 

the bombings of the American embassies in Kenya and Tanzania. 

A prolific writer on a wide variety of subjects. 

We thank you for coming in today, Mr. McCarthy, and the floor 

is yours. 

STATEMENT OF ANDREW C. MCCARTHY, SENIOR FELLOW, 

FOUNDATION FOR THE DEFENSE OF DEMOCRACIES, WASHINGTON, D.C. 

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

Committee. 

Senator Specter, you mentioned my background in terrorism 

cases, and I think to the extent I have anything relevant to say to 

the Committee today it is from those trenches, the front lines 

where the war on terrorism is actually fought, and it is from the 

perspective of those trenches that I thank this Committee and the 

entire Congress for its tradition of strong bipartisan support in ensuring that our law enforcement and our counterterrorism officials 

at the FBI and the Justice Department have the tools that they 

need to protect our national security. 

It was that tradition that impelled members of both houses of 

Congress and both parties to enact the USA PATRIOT Act by overwhelming margins. It was a good potential idea back then. 

Nearly four years later, with no attacks on our homeland since 

9/11, even though we know our enemies are desperately trying to 

attack us, I think we can say confidently that it is now a good proven idea. 

It has been a crucial ingredient in the American people’s inoculation from the perilous disease that is terrorism and it remains 

good, relatively pain-free protection that we badly need. Just as we 

do not eliminate or water down vaccines when we are fortunate 

enough to go three or four years without a major outbreak of disease, it would be unwise and I think dangerous to eliminate or 

water down the major protections of the PATRIOT Act, and I am 

relieved and happy the see that for the most part the consensus 

seems to be that almost all of the PATRIOT Act, but for a few finite areas of disagreement, should be preserved and will be preserved. 

If I may, I would like to try to make two points this morning. 

The first concerns reasonableness. The demands of national security are undoubtedly intentioned with our freedoms. The tension is 

not always the same, it ebbs and flows. If you believe as I do that 

we are in a real war that presents real threats from murderers who 

play by no rules, the tension is raised. It calls for tolerable curbs 

on our liberties and tolerable intrusions on our privacy. If you believe that the threat is overstated or being used pretextually to adVerDate 0ct 09 2002 12:04 Nov 04, 2005 Jkt 024293 PO 00000 Frm 00346 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\24293.TXT SJUD4 PsN: CMORC
341

vance other agendas, then there is a natural inclination to emphasize our freedoms and our privacy, and I think many of my 

thoughtful colleagues have done just that. 

The genius of our system is that even if we never reach consensus on those things—and I doubt that we ever will—we are 

guided by a rule of reason. The Fourth Amendment asks one core 

question: is Government acting reasonably? It venerates privacy 

but it implicitly acknowledges that Government’s highest burden 

and highest responsibility is to protect our collective security. It rejects rigid prior restraints on either Government action or freedom. 

It says do what is reasonable. 

The PATRIOT Act is reasonable. It strikes a proper balance between the demands of public safety and private freedom. If it were 

unreasonable, you would have a record to show that, and after four 

years, you do not. 

I would submit that it is not reasonable to water down or eliminate provisions on the basis of hypothetical fears, and that is the 

major part of the debate that we have had over the PATRIOT Act, 

most of the challenges have been hypothetical. 

With the few remaining moments I have, the other thing I would 

like to stress this morning briefly is to urge this Committee to reject the premise that is at the heart of many of the reform proposals, which is that honorable people will behave dishonorably. 

The people on the front lines are not perfect by any stretch, they 

are in a pressure-packed job to protect us, they are forced to make 

hard judgment calls, and inevitably mistakes get made. I know. I 

made my fair share. 

But they are honorable. They are Americans who believe in civil 

rights. They take an oath to uphold the Constitution. They do not 

have a voyeuristic interest in spying on the private affairs of their 

fellow Americans. What is more, as a practical matter, they would 

not have the time even if they did have the inclination. 

As all of the investigations of intelligence failure demonstrate, 

they have enough of a challenge reading and digesting those things 

that we desperately want them to read and digest. The notion that 

they are Big Brother seeking to monitor our every move is not reality. Again, it is not reasonable. 

The best way to handle errors or over reaching, and those are inevitable, is oversight by this Committee and others. It is not to 

erect barricades against effective and necessary intelligence collection. 

Thank you, Mr. Chairman. 

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

Chairman SPECTER. Thank you very much, Mr. McCarthy. 

Our final witness—it is arranged alphabetically—is Ms. Suzanne 

Spaulding, who has an extraordinary record, now Managing Director of the Harbour Group. She served as Executive Director of two 

congressionally mandated committees, the national Commission on 

Terrorism and the Commission to Assess the Organization of Federal Government to Combat the Threat of Weapons of Mass Destruction, where former CIA Director John Deutch, chaired it and 

I served as the Vice Chairman. And she worked as Deputy Staff 

Director and General Counsel for the Senate Select Committee on 

342

Intelligence, and she also worked as Assistant General Counsel for 

the CIA. Quite a portfolio with one exception, where she was my 

Legislative Director and Senior Counsel, I believe, at the start of 

her now illustrious career. 

Ms. Spaulding, thank you for joining us. 

STATEMENT OF SUZANNE E. SPAULDING, MANAGING 

DIRECTOR, THE HARBOUR GROUP, LLC, WASHINGTON, D.C. 

Ms. SPAULDING. Thank you, Mr. Chairman, Senator Leahy, members of the Committee. I appreciate this opportunity to participate 

in today’s hearing on the USA PATRIOT Act and the legal framework for combating international terrorism. 

Let me begin by emphasizing that I have spent over 20 years 

working on efforts to combat terrorism, starting in 1984 when I 

had the privilege to serve as Senior Counsel to then Committee 

member and now Committee Chairman, Senator Arlen Specter, 

who, as many of you know, in 1986 introduced and guided to passage the first law to grant extraterritorial jurisdiction over terrorist 

attacks against Americans abroad. 

Over the succeeding two decades, in my work at the Central Intelligence Agency, at both Senate and House intelligence oversight 

committees, and with the two independent commissions on terrorism and weapons of mass destruction, I have seen how the terrorist threat has changed from one aptly described in the mid 

1980s by Brian Jenkins’ remark that ‘‘terrorists want a lot of people watching, not a lot of people dead,’’ to one that is now more 

aptly characterized by former DCI Jim Woolsey’s observation that 

‘‘the terrorists of today don’t want a seat at the table, they want 

to destroy the table and everyone sitting at it.’’ 

There is no question that today we face a determined set of adversaries bent on destroying American lives and our way of life. 

The counterterrorism imperative is to deny the terrorists both of 

these objectives. Evaluating how well the USA PATRIOT Act, as 

enacted and as implemented, satisfies this counterterrorism imperative is the fundamental task for this Committee, for the Congress 

as a whole and for the American public. 

One of my greatest concerns about the USA PATRIOT Act and 

other changes in the law over the last several years is the way in 

which intrusive criminal investigative powers have migrated into 

the careful legal framework we had established for domestic intelligence collection, which is largely governed, as you know, by the 

Foreign Intelligence Surveillance Act or FISA. Tearing down the 

wall that hampered the sharing of information between intelligence 

and law enforcement was absolutely essential and I supported it. 

Nevertheless, there are significant differences in the way that information is collected in intelligence operations as opposed to criminal law enforcement investigations, differences that require particularly careful oversight of any new powers granted in the intelligence context. 

Intelligence operations present unique risks. They are by necessity often wide ranging rather than specifically focused, creating a 

greater likelihood that they will include information about ordinary, law-abiding citizens. They are conducted in secret, which 

means abuses and mistakes may never be uncovered, and they lack 

343

safeguards against abuse that are present in the criminal context 

where inappropriate behavior by the Government could jeopardize 

a prosecution. These differences between intelligence and law enforcement help explain this Nation’s longstanding discomfort with 

the idea of a domestic intelligence collection agency. 

Because the safeguards against overreaching or abuse are weaker in intelligence operations than they are in criminal investigations, powers granted for intelligence investigations should be no 

broader or more inclusive than is absolutely necessary to meet the 

national security imperative, and should be accompanied by rigorous oversight by Congress, and where appropriate, by the courts. 

Unfortunately, this essential caution was often ignored in the 

FISA amendments contained in the PATRIOT Act. Changes to 

FISA were often justified with arguments that this authority is already available in the criminal context, and ‘‘if it’s good enough for 

use against drug dealers, we certainly should be able to use it 

against international terrorists.’’ But in the FISA amendments in 

Sections 214 and 215 of the PATRIOT Act, for example, we moved 

from the criminal requirement that information demanded by the 

Government be ‘‘relevant to a criminal investigation’’ to a FISA requirement that information be ‘‘relevant to an investigation to protect against international terrorism.’’ Consider this term. It does 

not say an investigation into international terrorism activities, 

which would at least mean there was some specific international 

terrorism activity being investigated. No. Instead it says, ‘‘an investigation to protect against international terrorism.’’ Imaging if the 

FBI was engaged in an investigation to protect against bank robbery. What does that mean? Just how broad is that scope? Whose 

records could not be demanded as relevant to an investigation to 

protect against terrorism? 

Mr. Chairman, let me conclude by noting that we often say that 

democracy is our strength. A key source of that strength stems 

from the unique relationship between the Government and the governed, one based on transparency and trust. Intelligence collection 

imperatives challenge those democratic foundations and demand 

rigorous oversight. 

These hearings and your willingness to consider whether provisions adopted in haste at a time of great fear should be renewed 

or modified, will contribute significantly to restoring the necessary 

public confidence that the Government is protecting both American 

lives and America’s way of life. 

Thank you for your work and for this opportunity to participate 

today. 

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

Chairman SPECTER. Thank you very much, Ms. Spaulding. 

We now turn to questions from the panel, limited to 5 minutes 

each. 

I start with you, Mr. McCarthy. Your outstanding record on prosecuting terrorism and securing key convictions is really extraordinary. 

Mr. MCCARTHY. Thank you. 

Chairman SPECTER. And my question to you goes to the use of 

the so-called roving wiretap. When we considered the PATRIOT 

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Act late one Thursday night, Senator Feingold offered an amendment that would have required the person implementing a roving 

FISA order to ascertain the presence of the target before conducting the surveillance. I was one of 7 Senators who supported 

the amendment out of concern for the basic issue, but also out of 

concern for, candidly, the short shrift that the amendment got before we had a tabling motion. 

Is that so-called roving wiretap really important for battling terrorism? 

Mr. MCCARTHY. The roving wiretap is crucial for battling terrorism. I do not want to suggest that I think that that amendment 

would have been unreasonable. I think it is unnecessary and it is 

sort of a belt and suspenders type add on if you take a look at the 

roving wiretap statute as a whole. 

And what I would stress to the Committee is that in many parts 

of the PATRIOT Act what critics have said about it is that what 

we need here is more judicial oversight. Here is a place where I 

would suggest that you should trust judicial oversight. The Government cannot get a roving wiretap unless they establish probable 

cause that is sufficient to at least describe a known person, not 

necessarily identify the person, but give an adequate enough description that you could find probable cause that the person was 

doing the predicate activities of the statute, and that the person 

would be using instruments— 

Chairman SPECTER. Thank you, Mr. McCarthy. 

I want to ask Ms. Spaulding a question, and I want to come to 

Mr. Barr. I would like to ask all the members questions, but we 

have very limited time. 

Ms. Spaulding, when you had commented about relevancy, my 

question to you goes to business records and a discussion we have 

been having about having a higher standard. True, nobody has 

sued them for library records or medical records, at least up to this 

point. But do you believe there ought to be a standard pretty much 

equivalent to probable cause to obtain a search warrant before 

going in to get business records? 

Ms. SPAULDING. Mr. Chairman, I think at a minimum we ought 

to consider a higher standard for records that implicate First 

Amendment activity, and probable cause might be the appropriate 

standard there. 

I also think that Section 215 could potentially stand a clarification that it applies only to business records. As I read it now, it 

applies to any tangible thing held by anyone. It is often justified 

by citing court opinions related to third-party records, and I think 

most people assume that what it attempts to reach is business 

records, but it does not specify that. I think there are clarifications 

that would help. 

Chairman SPECTER. Thank you. 

Congressman Barr, you testified before the House Committee on 

the issue of delayed notice, so-called sneak-and-peek, and we are 

searching for a time limit as to what would be reasonable to impose. There is one case where a court in Illinois imposed a 7-day 

time limit, and that resulted in having the Assistant U.S. Attorney 

seek 31 extensions over an 8-month period. We are going to take 

a close look at that case to see why he had 31 extensions, or why 

345

if the matter would warrant 31 extensions and he got 31 extensions, or at least 30, that there would be so many. 

But based on the experience you have had, which is extensive, 

how would you craft a time limit on the so-called delayed notice 

matters? 

Mr. BARR. I think that the case that the Senator cites illustrates 

a couple of things, one, that generally speaking, even if on the surface a procedure appears burdensome, it probably really is not, and 

courts are very much inclined—and this is compatible with my experience as a U.S. Attorney—courts are very much inclined to 

grant governmental requests in this area, and that is because, one, 

the authority that the Government has is rarely abused. It is sometimes, but rarely. And courts show great deference to the prosecutors when they come to the court and ask for an authority or for 

an exception such as sneak-and-peek. 

Chairman SPECTER. Congressman Barr, I have one more question for Professor Cole. 

Would you repeal the PATRIOT Act entirely? 

Mr. COLE. No, I would not. 

Chairman SPECTER. Thank you. 

Senator Leahy. 

Senator LEAHY. I agree with Professor Cole. But I do have some 

problems with some parts of it. 

And in the hearing before the House Terrorism and Homeland 

Security Committee, Congressman Barr, you were asked about the 

PATRIOT Act sunset provision, and you said: I am somewhat mystified by a lot of my former colleagues, and your current colleagues 

are so afraid of a sunset provision, particularly those of us who are 

conservative about many issues. I do not think that we would be 

here today, I do not think that these hearings would be convened 

at this point were it not for the sunset provisions. It is a very important provision that liberals and conservatives alike ought to embrace. 

Obviously, as one of the authors of that sunset provision, I agree 

with you. The administration wants to do away with the sunsetting 

authorities, make them permanent. Is there a problem if they are 

made permanent rather than maybe extending a sunset provision? 

Mr. BARR. I think that it would be problematic. These are very 

extraordinary powers that we are speaking of here. Even though 

the Government has shown an increasing propensity to use these 

extraordinary powers in what I think a number of instances are 

not extraordinary cases, they are extraordinary powers, and I think 

Congress ought to very, very zealously guard against making them 

permanent. It is, as a practical matter in both houses of the Congress, as the Senator I think would agree, much more difficult to 

enact legislation that corrects a problem if there is not a sunset 

provision. That provides at least a guaranteed vehicle for the Congress to take advantage of. 

Senator LEAHY. Thank you. 

Ms. Spaulding, you have had probably as extensive a background 

in intelligence matters and the preventive work that intelligence 

can do, and others, and certainly in this area. Do you think the 

sunsetting authority should be made permanent, extended or some 

346

combination, and were they worthwhile having them in there in 

the first place? 

Ms. SPAULDING. I will say that when the PATRIOT Act was first 

enacted with the sunset provisions, it was not clear to me that they 

would—how effective they would be. But in hindsight I think they 

were brilliant. I think it is absolutely the case that we would not 

have had the level of public discussion and debate, the intense 

focus by Congress had those sunset provisions not been there. I 

think they have been incredibly important. 

Having said that, I would not like to see sunset provisions, clearly, take the place of making changes and modifications today that 

we now know need to be made. And one area where I feel particularly strongly about that is the lone wolf provision, which in some 

ways makes the most compelling case for extending the sunset because it was so belatedly enacted, just last year, but nevertheless, 

I think has some real problems that should be addressed now. 

Having said that, I think this is a brave new world for us, we 

are finding our way, and sunset provisions make a lot of sense in 

this context. 

Senator LEAHY. You, like many of us on this Committee, have 

handled intelligence matters including code word clearance and 

those things. Do you believe that more information on the use of 

surveillance powers could be shared with the Congress and actually 

with the public without jeopardizing national security? 

Ms. SPAULDING. I think a great deal more information could be 

shared with Congress certainly than was made available when I 

was on congressional staffs. I do not have insight into all that is 

shared today, but I think, for example, even the content of FISA 

applications, of current FISA applications, could be shared with at 

least Committee members. 

Senator LEAHY. Let me go into that because in prior Congress, 

as I introduced the Domestic Surveillance Oversight Act—Senator 

Specter and Senator Grassley have been co-sponsors of that—I felt 

it was intended to shine more light on what is going on in FISA, 

requires, for example, reports on U.S. persons targeted under 

FISA, at how often FISA is used for criminal courts, to give Congress more information on how the FISA courts operate, and a review of constitutional questions back in November 2003. Representative Barr said he would support it. Would you support this increased reporting that is contained in the Domestic Surveillance 

Oversight Act that Senator Specter, Grassley and myself and others have— 

Ms. SPAULDING. I would, Senator. I do not see any harm to national security, and I think that, while the numbers do not tell the 

public a great deal, they can at least serve as a prod to heighten 

oversight. 

Senator LEAHY. Thank you. 

Actually, I do have one question for Mr. Dempsey. We do have 

this public library question. How do you ensure against sort of Big 

Brother snooping that has generated so much discussion, without 

making libraries safe havens for terrorists, as Director Mueller has 

suggested? 

Mr. DEMPSEY. Well, I think that at the end of the day, there is 

no category of records that the Government should not have the 

347

power to get, but the question is, what are the standards, what are 

the checks and balances? Right now under Section 215 there is no 

factual showing, there is no specificity, there is no notice ever to 

the person whose records are provided to the Government. While 

there is clearly a need for secrecy during the conduct of intelligence 

investigations, I think we need to counterbalance that with a 

meaningful, truly meaningful judicial review based upon a factual 

showing and some specificity. 

Senator LEAHY. Thank you. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Senator Kyl. 

Senator KYL. Let me ask, Mr. Collins, about that last point in 

your written testimony. You refer to the fact that Section 215 actually contains more protections than the rules governing grand jury 

subpoenas. Why do you not elucidate on that a little bit? 

Mr. COLLINS. Yes. In my testimony I specified a number of the 

different elements that there are under Section 215 to getting a 

court order under FISA for business records. First, a court order 

is required. In a grand jury subpoena the AUSA pulls out a grand 

jury subpoena, types it up and signs it. The court is not merely a 

rubber stamp. The statute explicitly states that it can modify the 

order, and indeed, the Department, in its recent report about orders under 215, has indicated that that power of modification has 

in fact been used. 

The statute has a narrow scope, can be used in an investigation 

of a U.S. person only to protect against international terrorism or 

clandestine intelligence activities, cannot be used to investigate domestic terrorism, and provides explicit protection for First Amendment rights. It is not possible, as I believe someone asserted this 

morning, to go into a library and just say, ‘‘I want to see who 

checked out a particular book’’ that has no particular significance, 

not a book on bomb making. That is an order that would be predicated on First Amendment rights in violation of 215 as it exists 

today. 

Senator KYL. And you further note that the standard established 

in the SAFE Act is that this authority could only be authorized—

and I am quoting now—‘‘if there are specific and articulable facts 

giving reason to believe that the person to whom the records pertain is a foreign power, an agent of foreign power,’’ which you described as too narrow a standard. Why do you believe that? 

Mr. COLLINS. There has been discussion about whether there can 

be refinement of the standard here. I think that reasonable people 

can agree, or can differ on that question. For example, the word 

‘‘relevance’’ actually does not appear in 215. That could be added 

in. But to raise it to the level of reasonable suspicion is too high. 

Say, for example, you know that a particular document has details 

about water supplies in a particular area, and it is a highly arcane 

document that was in Federal depositories, and you know that 

there was an interest in that particular dam, and you want to 

know who may have consulted the details that were available in 

Federal depositories. You could not do that. You could not get those 

records absent making a further showing that those records would 

pertain to a person who was suspected to be a foreign agent. 

348

So it requires a higher showing. You could not just get the set. 

If you knew that five people had consulted those records you could 

not get all five without making a showing as to each five of them. 

Senator KYL. Let me just ask you one final question. There has 

been some discussion of the delayed notification on the search warrants. Does that not occur with judicial review, and does the judge 

not put the limitations on there that he deems appropriate in a 

particular case? 

Mr. COLLINS. Yes. Pre-existing case law seemed to have developed this presumption of a 7-day limit. That was not codified into 

213. It allows each judge who authorizes it to set what he or she 

believes is the appropriate limit for the initial authorization and for 

the extensions, depending on the showing that is made in a particular case. 

Senator KYL. So what would the Government ordinarily have to 

show as a justification to the court for the delayed notice? 

Mr. COLLINS. There are five grounds specified for grounds for delayed notification. The SAFE Act, at least in the version now in the 

109th Congress, the difference only comes down now to one ground. 

There is now agreement on preserving in full the other four 

grounds, and it is just the ground over seriously jeopardizing an existing investigation. 

Senator KYL. What is your view on that? 

Mr. COLLINS. I believe that that should be preserved as a ground. 

The Department has given a number of examples primarily in the 

context of what might be called spinoff investigations, where you 

are investigating one particular organization for one thing and 

then you realize that there is another collateral activity, there is 

credit card fraud or something. You want to intercept a package 

that is being shipped either to verify what is being shipped or to 

pursue further leads on that. But if you were to give the notification on the spinoff investigation, you would then tip off the larger 

investigation, and to force people to the choice of either, well, we 

will just ignore what we now know is a second criminal activity, 

seems I think too high a cost and the judicial supervision should 

be sufficient. 

Senator KYL. Thank you. 

Chairman SPECTER. Thank you very much, Senator Kyl. 

Senator Feingold. 

Senator FEINGOLD. I thank the panel and let me first ask if Mr. 

Dempsey wanted to respond to the point Mr. Collins was making? 

Mr. DEMPSEY. I thought that the example that he gave about the 

rare document and a dam and the document had some information 

about the vulnerability of the dam and that it was known that people were interested in attacking that dam. I think that is specific 

and articulable facts. 

Senator FEINGOLD. Thank you. That is what I assume was the 

point you wanted to make, one I would have made. Thank you very 

much. 

Ms. Spaulding, the so-called lone wolf or Moussaoui fix became 

law last year as part of the Intelligence Reform and Terrorism Prevention Act, but it sunsets at the end of a year. I actually raised 

serious concerns about the lone wolf provision when it came 

through this Committee, and argued that it was an unnecessary 

349

and possibly unconstitutional expansion of FISA. I also joined Senator Feinstein in offering an amendment to deal with the lone wolf 

problem by way of essentially a permissive presumption that would 

allow a FISA warrant to be issued in certain cases. You have had 

a lot of experience with FISA, both from the perspective of the intelligence community and working in congressional oversight. 

Could you give your perspective on whether we should reauthorize 

this provision and whether this permissive presumption approach 

is workable and preferable? 

Ms. SPAULDING. Yes, thank you, Senator. I actually testified a 

couple weeks ago in the House Judiciary Committee, primarily 

about the lone wolf provision, and very strongly endorsed that permissive presumption amendment to the lone wolf provision. 

I think it addresses what is the real problem, which is—if there 

is a problem—one of uncertainty about connection to an international terrorist group. As you noted, the lone wolf provision is 

often referred to as ‘‘the Moussaoui fix,’’ but as an exhaustive study 

by this Committee demonstrated, there was no need for a fix to 

FISA to be able to access Mr. Moussaoui’s computer. In fact, the 

failure to do so reflected a misunderstanding on the part of the Bureau as to the FISA standard. So it is not really necessary to get 

at the—because the probable cause standard is a relatively low 

standard, not even ‘‘more likely than not,’’ and because an international terrorist group can consist of two individuals, the ability 

to meet a probable cause standard that this person is operating 

with at least one other person is not a very high hurdle. 

Having said that, if the Government can make a compelling 

need, I think the permissive presumption fix is appropriate. 

Where I am really troubled is that the provision as now written 

really reflects I think a cynical—I have expressed it as a HumptyDumpty approach to the law, where words mean what I choose 

them to mean. 

Defining someone who is acting entirely alone with no connection 

to any other person or foreign power as ‘‘an agent of a foreign 

power,’’ as FISA now does, is a legislative legerdemain that I think 

threatens to undermine this very important national security tool, 

and I would take the lone wolf, the true lone wolf, out. 

Senator FEINGOLD. Thank you. 

Mr. Dempsey, at a hearing on the Select Senate Intelligence 

Committee a couple weeks ago, Attorney General Gonzales testified 

that we do not need an ascertainment requirement for roving wiretaps under the FISA as the SAFE Act would mandate because 

there is no ascertainment requirement for criminal roving wiretaps. 

Is that correct, and can you respond to what Mr. Collins said about 

the roving wiretap changes in the SAFE Act, please? 

Mr. DEMPSEY. Well, as I read the roving tap authority in Title 

III, there is an ascertainment requirement. I have to say that in 

1998 in a amendment that was made out of scope to the Intelligence Authorization Act, it was watered down, but it is still there. 

The order is limited to the interception so long as it is reasonable 

to presume that the person identified in the application was in the 

reasonable proximity of the instrument to be intercepted. There is 

a better, I think, roving ascertainment requirement applicable to 

bugs. 

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When this Committee, under Senator Leahy and Senator Mathias, first adopted the roving tap authority in 1986, they did have 

that stronger ascertainment requirement for both taps and bugs. In 

fact, if you look at the Committee report on the 1986 roving tap 

provision, they specifically cited terrorism as one of the cases why 

that was being adopted and why the ascertainment requirement 

was suited for both taps and bugs of terrorists. And it is still there, 

albeit in watered-down form for taps. So I have to disagree with 

the Attorney General on that. 

Senator FEINGOLD. Mr. Dempsey, FBI Director Mueller has advocated that we expand the PATRIOT Act as part of the reauthorization process and grant the FBI broad administrative subpoena authority in terrorism cases. He argues that national security letters 

and Section 215 orders are insufficient to obtain records because 

apparently they take too long or are too difficult to enforce. How 

would you respond to Director Mueller on those points? 

Mr. DEMPSEY. Well, I think administrative subpoenas is one of 

the worst ideas that has been around for 30 years, which is how 

long it has been around for. This is a piece of paper signed by an 

FBI agent saying, ‘‘Give me everything you have,’’ with not even 

the nominal oversight of a prosecutor that you have with the grand 

jury subpoena. And in this age of Blackberries and ubiquitous 

Internet access, I really do not see why, except in the rarest of 

cases, you would ever need to avoid going to a judge under the 

minimal showing that is being discussed here to get approval to get 

papers and records either in a terrorism case or an ordinary criminal case. 

Senator FEINGOLD. Mr. Chairman, I thank you for the time. I 

would just like to ask to place in the record a statement in support 

of the SAFE Act from Senator Salazar, as well as letters of support 

from the American Jewish Community and various other outside 

groups. 

Chairman SPECTER. Without objection, they will be made a part 

of the record. 

Thank you very much, Senator Feingold. 

Senator Hatch. 

Senator HATCH. Mr. Collins, between April 2003 and January 

2005, a period of 21 months, delayed search notice warrants were 

used, I believe, 108 times. Now, in 28 of those cases seriously jeopardizing the investigation was the sole ground for seeking the delay 

of notice from the issuing court. Now, that is 26 percent of the 

time. That seems far from catch-all use to me. The words ‘‘seriously 

jeopardize’’ sound like very narrowing modifiers of the Government’s power to request this type of a warrant. I think that most 

judges would be able to distinguish and determine when circumstances may affect the outcome of a case and when circumstances may seriously jeopardize a case. 

These delayed notification warrants have been requested and 

granted less than one-fifth of one percent of the time, as I understand it. I do not see evidence of abuse here. Am I right on these 

facts? And where were the cries of injustice when the delayed notice warrants were used in criminal cases before 9/11? 

Mr. COLLINS. Senator, you are correct that this was not an innovation of the PATRIOT Act. This was something that existed in 

351

case law and standards had been developed. It was codified in the 

PATRIOT Act, and the PATRIOT Act specifically gave flexibility to 

the district judge to set the time limits, and that has really been 

the primary point of dispute. 

I think the other thing that is worth noting about the statistics 

that, Senator Hatch, you have cited and that the government has 

supplied in a letter to the Chairman is that the district courts who 

have reviewed these have, in fact, invoked the flexibility on timing 

that the PATRIOT Act has granted them. Some have said seven 

days in particular cases. Another said 10, another said 30. They 

have, in fact, set it depending in the showing that has been made 

to them. 

Mr. DEMPSEY. Senator, may I comment? 

Senator HATCH. Sure. 

Mr. DEMPSEY. The catch-all provision, I think, is of concern particularly in relationship to the standard. The standard is reasonable cause—not probable cause, but reasonable cause to believe 

that the notice may have the adverse effect. So it is almost a double expansion—reasonable cause to believe that it may have an adverse impact. 

If you look at those statistics, you see that not a single judge denied a single government request under any prong of the sneakand-peek test. So in every single case where the government cited 

serious jeopardy to a case, the court found it and ordered it. 

I think that the proponents of this sneak-and-peek provision are 

in a way trying to have their cake and eat it, too. They say, well, 

we are just codifying current law. But current law did have as a 

presumption a 7-day delay period, and yet we have in one case that 

was referenced by the Justice Department a 406-day delay in notice. 

In seven cases, the Justice Department sought unlimited delay. 

They asked for, and I think in six of the seven or seven of the 

seven got, delay for the duration of the investigation. I don’t think 

there is a single case on the books prior to this legislation where 

judges said go on as long as you want. 

Senator HATCH. Well, we are talking about terrorists here. 

Mr. DEMPSEY. Well, no, we are not. 

Senator HATCH. Yes, we are. 

Mr. DEMPSEY. Excuse me, Senator, but by and large this has 

been used in nonterrorism cases. 

Senator HATCH. It was used before, too. 

Mr. DEMPSEY. They broke into a judge’s chambers. 

Senator HATCH. Let me take back my time because I want to ask 

one more question before I finish. 

Mr. Collins, it seems to me that the PATRIOT Act takes tools already available to law enforcement in criminal investigations and 

enables them to use those same tools to go after criminal terrorists. 

We gave law enforcement the right to do in a terrorism case the 

same job we would expect them to do in a case against any public 

menace such as drug dealers, pedophiles, mafia syndicates, et 

cetera. That is a bright change from the dark past when you 

weren’t allowed to apply these basic tools in the cases of suspected 

terrorism because of an artificial wall between intelligence and law 

enforcement. 

352

Is that an accurate assessment? Also, if you have any comments 

about Mr. Dempsey’s comments, I would appreciate those, too. 

Mr. COLLINS. I think that one of the goals of the PATRIOT Act 

was to ensure that there would be counterparts on the intelligence 

side of the ledger for the tools that are on the criminal side. That 

doesn’t mean that there might not be differences, depending on the 

circumstances, between those tools, and that is really what the debate comes down to. 

Senator HATCH. Okay, and with regard to Mr. Dempsey’s comments, if it is justified by the court, I can see why, to protect an 

investigation, they might grant more than seven days. 

Mr. COLLINS. One of the points I made is that the PATRIOT Act 

was not—when I said it was a codification, I didn’t mean it had no 

change. In fact, I said exactly the opposite in making the point that 

judges have taken advantage of the flexibility to allow longer times. 

Somehow, this seven days had gotten into the case law before. That 

did not go into the statute and they have, in fact, set different time 

periods in different investigations. The fact that none have been 

denied may suggest that the government has been quite cautious 

in its use of it and has made convincing showings that they have 

not abused it. 

Senator HATCH. Yes, I think we ought to presume that rather 

than to presume the worst. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you, Senator Hatch. 

Senator Sessions. 

Senator SESSIONS. Thank you, Mr. Chairman. I would just repeat 

my own evaluation for what it is worth. I was a prosecutor for over 

15 years. I issued hundreds and hundreds of subpoena, probably 

not as many as Mr. Barr did when he and I were U.S. Attorneys 

together because he had a bigger district to cover, more millions of 

people. But we issued thousands of them. I was attorney general. 

I found nothing in this Act that encroached or really undermined 

the classical principles of search warrants, nothing that conflicts 

with fundamental principles of issuing a subpoena. Mr. Barr prosecuted a Republican Congressman. He was appointed by President 

Reagan in Atlanta, and I saw it in the papers all the time. It was 

a battle. 

I bet you, Bob, you had all of his telephone records, all of his 

bank records, all of his business records, his calendar diary, notes, 

phone messages, and you just issued subpoenas for some of that 

and some you issued search warrants for. Isn’t that correct? Isn’t 

that done routinely everyday that a United States Attorney can 

issue a subpoena for hotel records to see who was in a hotel? 

The DEA in a drug case can issue an administrative subpoena 

for those kinds of hotel and telephone records. Isn’t it done everyday all over America? 

Mr. BARR. They are done everyday all over America. That really 

I don’t think is the question before the Senate. The question is— 

Senator SESSIONS. I don’t have but a minute, but I would like in 

one brief moment, you tell me what is so dangerous about this Act, 

where we have gone out of historical principles of prosecutorial and 

investigative authority. You will never convict anybody of bank 

fraud, Enron or anything else, if you can’t get their records. 

353

Mr. BARR. Well, I dare say that the government had plenty of not 

just reasonable suspicion that crimes were committed in those 

cases that the Senator cites, but very articulable suspicion. And 

that is where— 

Senator SESSIONS. Very articulable suspicion. Now, what is the 

standard for issuing a subpoena? 

Mr. BARR. An articulable suspicion, I think, is a very sound 

standard, and we have gotten away from that. That is one of the 

problems here, Senator, in Section 215 which can be used to reach 

the exact same records that you and I would not have thought of 

reaching if we didn’t have articulable suspicion. 

Senator SESSIONS. Well, if you are brought to trial and there was 

no basis to obtain the records, you could move to dismiss the indictment if that proof is critical. 

Mr. BARR. But you can’t do that in a FISA. 

Senator SESSIONS. Yes, you can at trial, can you not? 

Mr. BARR. Not under Section 215. The person never knows. 

Senator SESSIONS. The records they will know. 

Mr. BARR. No, they won’t. They are in the hands of a third party. 

Senator SESSIONS. If you have got their bank records and their 

bank records are introduced— 

Mr. BARR. You would never know if somebody moved under a 

Section 215 order to get your records because they are not going 

after your records that you have. They are going after records 

about you that somebody else has. 

Senator SESSIONS. And as we know, counsel, you don’t have the 

classical reasonable expectation of privacy in documents being held 

by another company. They are that company’s documents. What 

you have in your house, what you have under your control in your 

wallet, in your pocket—you have an expectation of privacy and that 

cannot be obtained without a search warrant approved by a Federal judge. 

Mr. BARR. I think you do have a legitimate expectation that they 

will not be gathered and used against you without at least some 

reason to believe that you have done something wrong, Senator. 

Senator SESSIONS. Do you think it is a wrong for a district attorney in a town with 20 motels who has got information that John 

Jones spent the night in that town to issue a subpoena to every 

motel there to see if they have a record of John Jones? 

Mr. BARR. If there was a reasonable connection with a criminal 

proceeding or if the government had a reasonable suspicion that he 

was an agent of a foreign power, yes. 

Senator SESSIONS. So this is done all the time. I will let Mr. 

Dempsey comment. 

Mr. DEMPSEY. Yes, Senator, thank you. I think the crucial distinction is that if a prosecutor issued subpoenas to 20 hotels, those 

hotels could squawk about it. If they thought that subpoena was 

over-broad, they could squawk about it and that prosecutor would 

know that at the end of the day his conduct would show up in 

court, in the light of day, subject to public scrutiny. And if he was 

casting a fishing net— 

Senator SESSIONS. I understand that. 

Mr. DEMPSEY. Here, Senator, we are talking about secret intelligence investigations. 

354

Senator SESSIONS. Secret intelligence information, but it involves 

the security of our country. We have always treated that differently. And, number two, you go to the judge first. The D.A. does 

not have to go to a judge to issue subpoenas for bank records, medical records, library records. He issues that subpoena and they are 

produced. 

But if he desires to do one involving a terrorist circumstance, he 

has to go and present the evidence to a Federal court and get court 

approval before the subpoena is issued, quite different from the 

other. So, in effect, do you not, Mr. Collins, have court review in 

advance of the action rather than an opportunity to object at trial 

later on? 

Mr. DEMPSEY. Senator, under 215 there is no factual showing. No 

facts need be stated by the Government, and it says that the judge 

shall issue the order, as requested or modified, without naming the 

target of the investigation and without specifying whose records 

are sought or what connection they have to that investigation. And 

the recipient is prohibited forever from telling anybody. He can’t 

complain and that may never show up in court. 

Senator SESSIONS. Well, that is very important. If you are conducting a sensitive investigation, Mr. Dempsey— 

Mr. DEMPSEY. But that is why— 

Senator SESSIONS. Just a second. You have had your comment. 

If you are doing a sensitive investigation of a terrorist organization 

and you want to subpoena their bank records, you don’t want the 

banker calling up the terrorist organization and telling them they 

just subpoenaed your records. This is life and death. It is not academic. 

Mr. DEMPSEY. Exactly, Senator, and that is why we should have 

other protections. 

Senator SESSIONS. And it has been done before. You can get court 

orders today. Before the PATRIOT Act, you could get court orders 

to direct the recipient of the subpoena not to make it public. 

My time is out here, but I just don’t— 

Chairman SPECTER. This is pretty lively, Senator Sessions. 

Senator SESSIONS. Well, I take it very seriously. We are not out 

of historical traditions of search and seizure on the issue of subpoenas here. 

Chairman SPECTER. I was about to offer you a little more time. 

[Laughter.] 

Senator SESSIONS. Thank you, Mr. Chairman. 

Mr. Collins? 

Mr. COLLINS. If I just may make one point, in addition to having 

to go to the court first, I think it is notable that the Department 

in litigation has taken the position that there is a right to challenge a 215 order in court. The Attorney General reiterated that 

in his April 27th testimony, and that, I think, is one issue that is 

worth discussing, is what a provision that makes that formal looks 

like. 

The SAFE Act does, in fact, have something there. I think it 

raises a number of serious questions. I alluded to the fact that it 

creates an automatic stay and it is not clear to me that there 

should be an automatic stay right in the statute, as opposed to a 

355

judge determining that it should be stayed pending a resolution of 

the dispute. 

It incorporates the Classified Information Procedure Act which is 

designed for a criminal context and just carries it over into the civil 

context without modification. That raises a serious question. It allows these to be filed in any district court in the United States, 

rather than, as has been the model under FISA, those judges or 

magistrate judges who have been designated by the Chief Justice 

and where the facilities are set up to allow this to be done. It creates significant rights of disclosure, again, by analogy to CIPA. All 

of those, I think, are very serious questions that need careful study 

if this is going to be articulated, what this review that everyone 

agrees should be made available would actually look like. 

Senator SESSIONS. The pre-issuance review? 

Mr. COLLINS. Well, the pre-issuance is the fact that, Senator, as 

you pointed out, under 215 you can’t just pull a piece of paper out 

of your desk and sign it and get the record. You first have to go 

to a judge and get an order. 

Senator SESSIONS. Well, Mr. Dempsey says you don’t have to give 

any evidence to the judge. 

Mr. COLLINS. No. You have to show that there is, in fact, an investigation and that the records— 

Senator SESSIONS. Are relevant to the investigation. 

Mr. COLLINS. —are relevant. 

Senator SESSIONS. That is the standard for subpoenas, isn’t it, 

Mr. Barr, or anybody, prosecutors? It is evidence relevant to the investigation. 

Mr. BARR. You have to read the rest of it, Senator—relevant to 

an investigation to protect against acts of terrorism. That is different from a grand jury standard, much broader. 

Chairman SPECTER. Senator Sessions, Senator Leahy has to 

leave in a few moments. Let’s turn to him for a closing comment. 

Senator SESSIONS. He issued a lot of subpoenas in his prosecutorial career, also. 

Senator LEAHY. I had to go through a judge, I had to go through 

a judge. I had to go through a judge and I had to show probable 

cause. 

Senator SESSIONS. Not for issuing a subpoena, not probable 

cause. 

Senator LEAHY. For the subpoenas I did—I was a State prosecutor—we had to have probable cause. We had minimal probable 

cause, but it was there and it was with notice. If not immediately, 

there was notice and it could then be contested. 

Mr. Dempsey, when Senator Hatch cut you off, you were just 

about to say something about a break-in at a judge’s office. What 

was that all about? 

Mr. DEMPSEY. Well, this is one of the sneak-and-peek searches. 

I mean, I say break-in. It was a sneak-and-peek search under Section 213. The Justice Department has reported on some of the 

cases in which they have used this authority and a number of them 

are nonviolent, nonterrorism cases, one a judicial corruption case, 

clearly a very important matter, but I think that is not what most 

people thought they were voting for when they voted for the PATRIOT Act. 

356

Senator LEAHY. Let me talk about a few things. Professor Cole, 

the administration has never used the detention power it requested 

in Section 412. Does it have any useful purpose or can we just 

eliminate it? 

Mr. COLE. I think it could be eliminated. What we have seen is 

that without invoking Section 412, the administration subjected 

over 5,000 foreign nationals to preventive detention using immigration power. 

Senator LEAHY. Is that to enhance national security, those 5,000 

people? 

Mr. COLE. There is absolutely no evidence that it has enhanced 

our national security. In fact, I think there is considerable evidence 

that it has undermined our national security. First, as I suggested 

in my opening remarks, none of the people who were detained and 

called suspected terrorists by Attorney General Ashcroft repeatedly 

in the weeks and months after September 11—not one of them 

stands convicted of a terrorist crime today. So there is no credible 

evidence of any gain. 

The loss from a security perspective is that we have alienated entire communities, Arab and Muslim communities here in the 

United States, and maybe more importantly Arab and Muslim communities around the world who see us imposing on their nationals 

burdens and obligations that we would not be willing to bear ourselves. 

So, no, I don’t think Section 412 is necessary. If the Government 

can lock up 5,000 people with no connection to terrorism without 

412, they clearly don’t need Section 412. In fact, what I think is 

necessary is some congressional legislation that puts restrictions on 

immigration detention so that it is governed by the same standards 

that govern criminal detention. Where there is evidence that someone is either a danger to the community or a risk of flight, he or 

she may be detained, pending proceedings. But without that evidence, no. 

Senator LEAHY. I worry that we sometimes feel that if somebody 

is from anywhere outside our shores, there is going to be a real 

problem about them. I don’t want to call it xenophobia, but it is 

somewhat creeping, and as the grandson of immigrants it worries 

me greatly some of the things we are doing that we would never 

impose, or don’t even want other countries to impose on us because, 

of course, we are Americans and we want to impose it on others. 

The debates about closing our borders, and so on—the Senate is 

going to vote on a supplemental appropriations bill today and it 

has a substantial increase in immigration provisions which this 

Committee was never even allowed to look at. It was junk plunked 

in there, and numerous regulatory changes that I know you have 

said have impeded the constitutional rights of immigrants. 

Should we be looking back at our immigration laws in this country and ask whether maybe we are getting carried away? We are 

doing so many things that seem out of the mainstream, and I realize it is apples and oranges, but Section 3144, Title 18, so we can 

lock up witnesses who have information deemed material—I am 

thinking about Brandon Mayfield, the Portland attorney. My gosh, 

we got a perfect match on his fingerprints that he was involved in 

the bombing in Madrid. In fact, he hadn’t been there, but we will 

357

just go and seize all his things and ruin his livelihood. He did hang 

around with Muslims. 

The fact that he is out in Portland, Oregon, and the train was 

in Madrid and we got a false reading on a fingerprint that even 

under the loose standards of the FBI laboratory shouldn’t have 

gone through—I am getting off the subject. What should we do? 

Mr. COLE. I think on the subject of immigration, Senator Leahy, 

we should be a country that does not permit secret arrests, does 

not permit secret trials, does not hold people liable for their speech 

without showing any dangerous conduct, does not deport people for 

their political associations, and that does not lock people up without some objective evidence shown to a judge that the person needs 

to be locked up. That is the country we ought to be. That is the 

country we insist on for citizens. 

We ought to extend those same basic protections to the people 

who live among us who are not citizens. These rights—rights of 

speech, rights of association, rights of due process—are not privileges of citizenship. They are rights of all persons. They are owned 

to every human being in the United States and we ought to extend 

those rights. 

I think the Civil Liberties Restoration Act is a great start on 

that, but as I said before, there has been no hearing on it in either 

House. I think the supplemental appropriations is definitely a step 

in the wrong direction going back essentially to the McCarran-Walter Act, where we kept out people like Graham Greene and 

Gabrielle Garcia Marquez and NATO General Nino Pasti, not for 

their conduct, but for what they say and for with whom they associate. 

Senator LEAHY. Well, Mr. Chairman, I am glad to hear that said 

because we have to remind ourselves—you know, the Chairman 

and I have been here about 30 years each and when we first came 

here, it was at the height of the Cold War, Iron Curtain and all. 

And I loved going to places behind the Iron Curtain and being able 

to say to countries with censorship where people would be locked 

up, whether it was Solzhynitsyn who came to live in Vermont later 

on, and others, that, boy, in America you can speak out. We protect 

speech. In fact, what is most important, we protect unpopular 

speech. It is easy protect popular speech. We protect unpopular 

speech. I loved being able to say that all over the world as a very 

distinct hallmark of our democracy and protection of our First 

Amendment. No other country has the kind of protection that we 

do. I worry very much about what it does to our image abroad and 

what it does to us as a people if we pull back from that. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you, Senator Leahy. 

Mr. Dempsey, did you say that Section 213 was used to search 

a judge’s chambers? 

Mr. DEMPSEY. Yes, sir. That is reported by the FBI in a letter 

to Senator Stevens in 2003—excuse me—by the Department of Justice. 

Chairman SPECTER. I don’t want to conduct a protracted— 

Mr. MCCARTHY. Senator, I am sorry. I don’t mean to interrupt. 

My understanding is that that occurred in 1992, like about ten 

years before the PATRIOT Act. 

358

Chairman SPECTER. Well, I was just about to put into the record 

a copy of a letter dated May 6 of this year to Senator Roberts, who 

is Chairman of the Senate Select Committee on Intelligence, concerning testimony that you had provided, Mr. Dempsey, concerning 

the Department’s use of Section 213 of the PATRIOT Act. It is a 

long letter and we are way over time now, but— 

Mr. DEMPSEY. If you could, Senator, could we also place in the 

record the Justice Department letter in defense of Section 213 that 

cited that case? 

Chairman SPECTER. After I finish my sentence, I will. 

I don’t intend to go into this in any great detail, but I am going 

to make this a part of the record, and I am glad to put into the 

record any document which you think is relevant. 

Mr. DEMPSEY. Thank you, sir. 

Chairman SPECTER. You don’t have to show relevance or cause. 

[Laughter.] 

Chairman SPECTER. We have very generous standards for admitting matters to our record. One of my first exposures to that was 

Senator Dole one day with a broad, sweeping gesture one day said 

I am going to clean off my desk and put it all in the congressional 

Record. 

Senator Sessions, do you have any concluding comment? 

Senator SESSIONS. I think that is a hint. Mr. Chairman, I was 

reading, I believe, a book—I gave it to my staff—about 15 years 

ago, about, I believe, an organized crime case or a big drug case. 

I think it was an organized crime case. The government used a delayed notification search warrant. 

I can’t express how important a tool this can be in a big-time 

case involving a terrorist organization that is seriously threatening 

our people. It is important in major drug cases, it is important in 

any big mafia case and cases like that. There are times when you 

need to be able to determine what is in a residence. 

Under normal law, if you want to find out what is in a residence 

and seize weapons of mass destruction, you go to court. If you have 

got probable cause, a judge gives you a warrant and you go out and 

seize the stuff and you take it right back to the police station and 

you give them an inventory of what you seized. That is the way you 

do it. In America, it is done probably 5,000 times, 10,000 times a 

day, everyday, in America. 

Under this proposal, it just simply codifies procedures that have 

been utilized historically by which you provide further evidence 

that making known to the criminal or the terrorist that you have 

seized this material can be adverse to the investigation or the public safety. And you have to show this to this court and you can get 

an order that allows you to not seize the documents that you could 

actually seize and take back to the police station; just see if they 

are there, or the chemicals or the bomb material and that kind of 

thing. This so-called sneak-and-peek has been portrayed as some 

sort of incredibly intrusive law enforcement technique unprecedented in American history, and it is just not so. 

Now, with regard to the issue of subpoenas under FISA, the 

standard as it comes to me now is whether or not the documents 

are relevant to an investigation, not whether it provides probable 

cause or anything like that. Does this motel, hotel, hospital, liVerDate 0ct 09 2002 12:04 Nov 04, 2005 Jkt 024293 PO 00000 Frm 00364 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\24293.TXT SJUD4 PsN: CMORC
359

brary, business, charitable organization have documents relevant 

to an investigation? And you would normally just issue the subpoena on behalf of the grand jury and they go out and get the documents. I mean, that is the way you do it. 

If it is really important and this person can be connected to a 

terrorist organization or a foreign power, you can go to the FISA 

court and get a subpoena. You have to get the court’s approval 

first, and then you go out and you get the documents. And he can’t 

reveal that he has been served and he can’t quash at that stage. 

Now, is it your position, Mr. Collins—and, Mr. Dempsey, I will 

raise it with you—that if there was some procedure along the way 

that you could get a quash that that would make you happy? I 

mean, surely this is not a huge deal. 

Mr. DEMPSEY. Well, Senator, first of all I want to say that I 

agree with you entirely that the risk we face here is grave, that 

these are extremely serious matters. For that reason, I have said 

that there is not a single power in the PATRIOT Act that I think 

needs to sunset; that the records that are at issue here are records 

that the government should have access to. 

I want to engage both at this hearing and afterwards if we have 

some time in a real dialogue with you to talk about what I perceive 

as some of the differences between the grand jury subpoena and 

the 215 order, and where are some of the checks and balances that 

can ensure that the government has the power it needs, the timeliness it needs, the secrecy it needs. 

Senator SESSIONS. Those can be critically important. 

Mr. DEMPSEY. Absolutely, but still have some of the checks and 

balances and oversight. One of the issues that has clearly been put 

on the table is the after-the-fact challenge or the challenge by the 

recipient of the order, which is a possible check, an important 

check. 

Often, that person, though, Senator, has very little interest. The 

records don’t pertain to them. As you say, they are business 

records. And again I worry with this perpetual secrecy and how can 

we put a little bit more protection at the front end instead of relying on the back-end protection, when the person who has the right 

to challenge on the back end really doesn’t care in many cases and 

it is almost better for them— 

Senator SESSIONS. They don’t care at the front end most times. 

Mr. DEMPSEY. Well, that is often true. 

Senator SESSIONS. But, some, like a bank—a lot of banks now, 

Mr. Chairman, have a policy that if they are served a subpoena, 

they notify their customer. That didn’t used to be the case. 

Mr. DEMPSEY. And I think that is an important possible protection. 

Senator SESSIONS. They would prefer a court order saying not to 

do so. That protects them from being sued by the customer or violating their bank policy. 

Chairman SPECTER. Senator Sessions, your second-round time is 

up, and it is almost noon. 

Senator SESSIONS. Thank you for your leadership on this issue. 

Mr. DEMPSEY. I hope we can continue the discussion, Senator. 

Senator SESSIONS. Thank you very much. 

360

Chairman SPECTER. Mr. Cole, I have one final question for you. 

If you have a member of Al Qaeda and the only evidence is his 

membership in Al Qaeda, association with Al Qaeda, but there is 

no evidence of a terrorist Act and he seeks admission to the United 

States, there is a grave difficulty in how you protect the country 

and protect his right of association. 

Is there a right of association with Al Qaeda, so that if there is 

no terrorist act, you would admit him to this country? 

Mr. COLE. I think Al Qaeda is a different case, for the following 

reason. The right that the Supreme Court has announced— 

Chairman SPECTER. Well, could you start off by answering my 

question? 

Mr. COLE. I don’t think you have the same right of association 

with Al Qaeda as you would have, for example, with the African 

national Congress or the Palestinian Authority or the Northern Alliance in Afghanistan, all of which are defined as terrorist groups 

under the Iraq supplemental appropriation. 

Al Qaeda is different because Al Qaeda engages entirely, as far 

as we can tell, in illegal conduct. That is all they are about. They 

are not a political organization with a particular agenda which 

uses some legal means and some illegal means to further that 

agenda. They are an organization engaged in nothing but illegal 

conduct. 

The standard the Supreme Court identified in the Communist 

Party cases is when a group engages in both lawful and unlawful 

activity, it is a violation of the First Amendment principle of free 

association and a violation of the Fifth Amendment principle of 

personal guilt to impose liability on an individual by means of his 

connection to that group without showing some connection to unlawful activities of the group. 

Chairman SPECTER. Thank you, Professor Cole. 

This has been a very lively and very productive session. It is a 

surprise to me that all of my colleagues have left already. Oh, no, 

it is past noon. I can understand why they left. 

Thank you, Congressman Barr, Professor Cole, Mr. Collins, Mr. 

Dempsey, Mr. McCarthy, and Ms. SPAULDING. That concludes our 

hearing, and we will be pursuing this matter in depth. 

Mr. Dempsey, you have all the time you want to find Senator 

Sessions. 

Mr. DEMPSEY. I am going to track him down. Thank you, Senator. 

[Whereupon, at 12:01 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

[Additional material is being retained in the Committee files.]

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