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+ - USA PATRIOT ACT: A REVIEW FOR THE PURPOSE OF REAUTHORIZATION
+
+[House Hearing, 109 Congress]
+[From the U.S. Government Publishing Office]
+
+
+
+ USA PATRIOT ACT: A REVIEW FOR THE
+ PURPOSE OF REAUTHORIZATION
+
+=======================================================================
+
+ HEARING
+
+ BEFORE THE
+
+ COMMITTEE ON THE JUDICIARY
+ HOUSE OF REPRESENTATIVES
+
+ ONE HUNDRED NINTH CONGRESS
+
+ FIRST SESSION
+
+ __________
+
+ APRIL 6, 2005
+
+ __________
+
+ Serial No. 109-12
+
+ __________
+
+ Printed for the use of the Committee on the Judiciary
+
+
+ Available via the World Wide Web: http://www.house.gov/judiciary
+
+
+
+ ______
+
+ U.S. GOVERNMENT PRINTING OFFICE
+20-390 WASHINGTON : 2005
+_____________________________________________________________________________
+For Sale by the Superintendent of Documents, U.S. Government Printing Office
+Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800
+Fax: (202) 512�092250 Mail: Stop SSOP, Washington, DC 20402�090001
+
+ COMMITTEE ON THE JUDICIARY
+
+ F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
+HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
+HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
+LAMAR SMITH, Texas RICK BOUCHER, Virginia
+ELTON GALLEGLY, California JERROLD NADLER, New York
+BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
+STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
+DANIEL E. LUNGREN, California ZOE LOFGREN, California
+WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
+CHRIS CANNON, Utah MAXINE WATERS, California
+SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
+BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
+JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
+MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
+RIC KELLER, Florida ADAM B. SCHIFF, California
+DARRELL ISSA, California LINDA T. SANCHEZ, California
+JEFF FLAKE, Arizona ADAM SMITH, Washington
+MIKE PENCE, Indiana CHRIS VAN HOLLEN, Maryland
+J. RANDY FORBES, Virginia
+STEVE KING, Iowa
+TOM FEENEY, Florida
+TRENT FRANKS, Arizona
+LOUIE GOHMERT, Texas
+
+ Philip G. Kiko, Chief of Staff-General Counsel
+ Perry H. Apelbaum, Minority Chief Counsel
+
+
+ C O N T E N T S
+
+ ----------
+
+ APRIL 6, 2005
+
+ OPENING STATEMENT
+
+ Page
+The Honorable F. James Sensenbrenner, Jr., a Representative in
+ Congress from the State of Wisconsin, and Chairman, Committee
+ on the Judiciary............................................... 1
+The Honorable John Conyers, Jr., a Representative in Congress
+ from the State of Michigan, and Ranking Member, Committee on
+ the Judiciary.................................................. 2
+
+ WITNESSES
+
+The Honorable Alberto R. Gonzales, Attorney General, U.S.
+ Department of Justice
+ Oral Testimony................................................. 33
+ Prepared Statement............................................. 37
+
+ LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
+
+Letter submitted by the Honorable John Conyers, Jr. from Ms.
+ Clash-Drexler.................................................. 5
+Article submitted by the Honorable John Conyers, Jr., entitled
+ ``Seeking the Truth From Justice,'' by Laura Murphy, former
+ Director, American Civil Liberties Union....................... 7
+Prepared Statement of the Honorable Sheila Jackson Lee, a
+ Representative in Congress from the State of Texas............. 19
+Prepared Statement of the Honorable Linda Sanchez, a
+ Representative in Congress from the State of California........ 32
+Prepared Statement of the Honorable Zoe Lofgren, a Representative
+ in Congress from the State of California....................... 32
+
+ APPENDIX
+ Material Submitted for the Hearing Record
+
+USA Patriot Act: Sunsets Report, prepared by the U.S. Department
+ of Justice..................................................... 85
+Chapter I of On Liberty by John Stuart Mill, submitted for the
+ Record by the Honorable Sheila Jackson Lee..................... 156
+
+
+ USA PATRIOT ACT: A REVIEW FOR THE PURPOSE OF REAUTHORIZATION
+
+ ----------
+
+
+ WEDNESDAY, APRIL 6, 2005
+
+ House of Representatives,
+ Committee on the Judiciary,
+ Washington, DC.
+ The Committee met, pursuant to notice, at 1:01 p.m., in
+Room 2141, Rayburn House Office Building, Hon. F. James
+Sensenbrenner, Jr. (Chairman of the Committee) presiding.
+ Chairman Sensenbrenner. The Committee will be in order. A
+quorum for the taking of testimony is present.
+ On September 11, 2001, 19 terrorists turned four planes
+into guided missiles that killed more than 3,000 innocent men,
+women, and children, caused approximately $100 billion in
+economic losses, and triggered U.S. military action in
+Afghanistan. In response to the failure of the Nation's law
+enforcement and intelligence communities to discover and
+prevent these attacks, Congress passed the USA PATRIOT Act. The
+objective of this bill was to modernize both Federal law
+enforcement and intelligence investigative tools and to ensure
+that the information collected was shared between the law
+enforcement and intelligence communities.
+ September 11 also led to the passage of several other key
+pieces of legislation to assist law enforcement and the
+Intelligence Community with their efforts in the war on
+terrorism. Such accomplishments included creating a Department
+of Homeland Security to better coordinate agency efforts for a
+secure homeland; further improvements to information sharing;
+efforts to enhance border and visa security; and heightened
+penalties for terrorist acts and criminal activities which
+assist in their furtherance.
+ The PATRIOT Act is an important part of the overall
+framework to protect our Nation. In passing the PATRIOT Act,
+Congress established standards and oversight for the use of the
+Act's provision. For example, section 1001 of the PATRIOT Act
+requires the Inspector General of the Department of Justice to
+determine and report to Congress civil liberties violations. I
+would note that this includes any violations of civil liberties
+by DOJ, not just those alleged to have occurred under the
+provisions of the PATRIOT Act. To date, the Inspector General
+has issued six reports and not found a single example of a
+civil liberties violation relating to authority granted under
+the PATRIOT Act.
+ To further address concerns that enhanced law enforcement
+tools could lead to civil liberties violations, Congress
+included a sunset provision for 16 sections of the PATRIOT Act.
+These 16 sections, set to expire this year on December 31, are
+aimed at updating investigative tools and improving information
+sharing and go to the very heart of our Nation's response to a
+changed world in which terrorists plot to destroy our very way
+of life.
+ As we consider the reauthorization of these provisions, we
+must consider whether allowing them to expire will once again
+saddle law enforcement and the Intelligence Community with the
+restrictions that will render intelligence unreliable and
+prosecutions unattainable against criminals and terrorists who
+increasingly utilize advanced technology and
+countersurveillance methods to improve their efforts to harm
+and to kill.
+ As we learned from the 9/11 attacks, procedures needed to
+be streamlined for law enforcement and the Intelligence
+Community to react in real time. In this war on terrorism, we
+are racing against the clock. Terrorist cells operate
+throughout the world, including within our own borders, and
+actively plan attacks against U.S. citizens. Law enforcement
+and the Intelligence Community must be able to quickly protect
+the public from future attacks.
+ That is why I believe that one of the most important tasks
+Congress faces this year is to consider the reauthorization of
+these provisions. Lawmakers must focus on how the PATRIOT Act
+has been implemented, what improvements, if any, are needed,
+and whether the provisions set to expire deserve to be made
+permanent.
+ Accordingly, the Committee plans an ambitious hearing and
+oversight schedule beginning with today's full Committee
+hearing with Attorney General Alberto Gonzales. After this
+hearing, the Committee will hold eight Subcommittee hearings
+through April and May on the PATRIOT Act provisions that are
+set to expire on December 31. Finally, I anticipate the Deputy
+Attorney General and the Inspector General will testify before
+the full Committee soon after the Subcommittee hearings are
+completed. These hearings reflect this Committee's continued
+commitment to monitor the implementation of anti-terrorism
+legislation, to conduct active oversight over the Department of
+Justice, and to ensure that law enforcement has the tools
+necessary to fight and to win the war on terrorism and to fight
+crime in general.
+ I look forward to hearing the testimony of the Attorney
+General, and congratulations, General Gonzales, on your recent
+confirmation.
+ Now I recognize the gentleman from Michigan, Mr. Conyers.
+ Mr. Conyers. Thank you, Mr. Chairman. Good afternoon, Mr.
+Attorney General. We are delighted to have you here.
+ As we begin our review of the PATRIOT Act, let me start at
+this very important point. Those who oppose the passage of any
+parts of the PATRIOT Act, want changes, who question its
+utility, who are concerned about the Government's demand for
+new and unnecessary powers after September 11 are not those who
+do that because they have any sympathy with terrorists or those
+that support them. I personally resent on the part of all
+Americans any one, particularly in the Government, that takes
+that point of view.
+ In the Congress and in the Judiciary Committee, that's even
+more important because we make the laws. We pass the laws.
+These are our responsibilities. This is what we took the oath
+for. So we have a historic and legitimate concern regarding the
+misuse and the abuse of Government power, any Government power,
+but particularly coming from the Department of Justice, not
+only under the PATRIOT Act, but under the entire array of
+authority unilaterally assumed in many instances by the
+Administration since September 11.
+ This includes the mistreatment of detainees, the condoning
+of torture, the designation of enemy combatants, the
+immigration sweeps, hundreds of them, the excessive collection
+of personnel data, the closing of immigration proceedings, the
+unchecked military tribunals, and the abuse of our material
+witness statutes.
+ When our own Government detains and verbally and physically
+abuses thousands of immigrants for unknown and unspecified
+reasons with no time limits, targets tens of thousands of Arab
+Americans for intensive interrogation, I, sir, see a Department
+of Justice that has institutionalized racial and ethnic
+profiling without the benefit of a single terrorism conviction.
+ When our President takes upon himself to label United
+States citizens as enemy combatants without a trial, without
+charges, without access to the outside world, I see an
+executive branch that has placed itself in the constitutionally
+untenable position of prosecutor, judge, and jury, and is
+ignoring, to my shock and dismay, the principles of the
+separation of powers.
+ When our Justice Department condones the torture of
+prisoners at home and abroad, authorizes the monitoring of
+mosques and religious sites without any indication of criminal
+activity, I see a course of conduct that makes our citizens
+less safe, not more safe, and undermines our role as a beacon
+of democracy and freedom in the world.
+ When the FBI can arrest an innocent American citizen, a
+Muslim, Brandon Mayfield, based on a botched fingerprint exam,
+blame him for blowing up a train in Spain and he's never been
+in the country, has no known connection to al-Qaeda or any
+terrorist group, I hope you can understand why so many
+Americans are distrustful about the tactics and standards being
+applied in our war against terror.
+ When the PATRIOT Act can be misused to tap Mr. Mayfield's
+phones, seize his property, copy his computer, spy on his
+children, take his DNA, all without his knowledge, please, sir,
+appreciate why I am today calling on the Inspector General to
+review the manner in which this American citizen and his family
+have been treated by our Government.
+ In the past, your predecessor has stated that those who
+would criticize this Administration are aiding the terrorists
+and giving ammunition to America's enemies and chastise us as
+searching for phantoms of lost liberty. Well, I'm here to say
+that these incidents are not phantoms, thousands of them. They
+involve real people with real families whose civil liberties
+have been abused in the war on terror.
+ This Member will not be bullied or intimidated or rushed
+into backing down from my legislative and oversight
+responsibilities. Many of us remember a time when the powers of
+the FBI and the CIA were horribly abused. We know what it means
+to face racial profiling and religious persecution. Many of us
+know that our Nation has too frequently overreacted to threats
+of violence in the past by clamping down on legitimate protests
+and law-abiding citizens and immigrants. To me, the lessons of
+September 11 are that if we allow law enforcement to do their
+work free of political interference, if we give them adequate
+resources and modern technologies, we can protect our citizens
+without intruding on our liberties.
+ We all fight terrorism, but we want to work with you to
+fight it the right way, consistent with our Constitution and in
+a manner that serves as a model for the rest of the world.
+ Chairman Sensenbrenner. Thank you, Mr. Conyers.
+ [The letter from Ms. Clash-Drexler follows:]
+
+Letter submitted for the Record by the Honorable John Conyers, Jr. from
+ Ms. Clash-Drexler
+
+
+
+Article submitted by the Honorable John Conyers, Jr. entitled ``Seeking
+ the Truth From Justice,'' by Laura Murphy, former Director, American
+ Civil Liberties Union
+
+
+
+ Chairman Sensenbrenner. Without objection, all Members may
+place opening statements in the record at this point.
+ [The prepared statement of Ms. Jackson Lee follows:]
+
+
+
+ [The prepared statement of Ms. Sanchez follows:]
+
+Prepared Statement of the Honorable Linda T. Sanchez, a Representative
+ in Congress from the State of California
+
+ Thank you, Chairman Sensenbrenner and Ranking Member Conyers for
+convening this oversight hearing today to review the PATRIOT Act, and
+to consider its reauthorization.
+ Reauthorizing the PATRIOT Act raises many very deep concerns, and
+those concerns are just as deep as the opposition I feel to the first
+incarnation of the PATRIOT Act.
+ The PATRIOT Act signed in 2001 is a massive infringement on many
+civil liberties. It became law with little consideration of the
+consequences of giving law enforcement such broad surveillance powers--
+even going so far as granting them access to your library records.
+ Every Member of this Committee is fully aware of how quickly we
+advanced from the terrorist attacks on 9/11, to the concept of the
+PATRIOT Act, to the bill being passed by both chambers of Congress.
+ It only took 41 days.
+ Forty-one days is simply not enough time to fully develop a bill
+that impacts the Constitutionally protected privacy rights of every
+American citizen, and granted so much authority to law enforcement
+agencies.
+ Some of the new law enforcement powers the PATRIOT Act allows are
+shocking.
+ We now live in a country where the government can listen to
+conversations between attorneys and clients as they prepare their
+defense in certain cases.
+ We live in a country where the government has the power to
+indefinitely detain and even deport people who are part of certain
+associations, or simply exercise their right to free speech.
+ We live in a country where law enforcement agents have the power to
+detain aliens when the Attorney General merely suspects they have
+engaged in terrorist activity.
+ That doesn't sound like the United States to me, it sounds more
+like Communist China?
+ As troubling as the law enforcement provisions of this bill are,
+the restrictions on the ability of Judiciary and Legislative branches
+to oversee law enforcement's actions are equally troubling.
+ This Committee has tried in vain to exercise its oversight powers
+and get answers to our many questions about how the PATRIOT Act is
+being used, and more importantly, how it is being misused.
+ Far too often we have been met by a wall of secrecy or silence.
+ That is unacceptable. When every American's civil liberties and
+rights are at stake, we must have transparency to ensure that privacy
+rights are protected.
+ I fully recognize how monumental and important the task of
+protecting national security and preventing future terrorist attacks
+is.
+ I also recognize that law enforcement agents are working tirelessly
+to protect our country and will need every resource we can provide to
+keep another 9/11 from happening.
+ But we cannot trample on the Constitution in our effort to prevent
+terrorist attacks.
+ I thank the Attorney General for his testimony today, and I hope
+that he can inform the Committee how he plans to address the serious
+civil liberty concerns inherent in reauthorizing the PATRIOT Act.
+ I yield back.
+
+ [The prepared statement of Ms. Lofgren follows:]
+
+ Prepared Statement of the Honorable Zoe Lofgren, a Representative in
+ Congress from the State of California
+
+ Following the attacks of 9/11, this Congress passed the USA PATRIOT
+Act to give our law enforcement and intelligence agencies new powers to
+fight terrorism. I voted for that law, but only after securing support
+for sunset provisions that allowed this Congress to revisit these
+issues under less trying circumstances.
+ Today, we begin that review in a very different atmosphere. This
+Nation is still fighting terrorism at home and abroad. But an
+increasing number of Americans are beginning to wonder whether the
+PATRIOT Act does more harm than good. In fact, over 370 communities and
+4 states have passed resolutions opposing parts of the PATRIOT Act.
+These communities represent about 56 million Americans who have lost
+faith in their government's ability to protect civil liberties.
+ It's no surprise so many Americans have lost faith. Aside from the
+PATRIOT Act, Americans have had to deal with torture scandals that were
+at least implicitly authorized by their own government. They have had
+to grapple with the reality that their government detains its own
+citizens for indefinite periods of time without charge, access to
+counsel, or due process. And they have had to watch their government
+conduct racial profiling sweeps and secret tribunals.
+ Add to these realities the fact that this Administration has been
+so secretive about its use of the PATRIOT Act, and one can understand
+why the American public wants answers.
+ Every American, whether Democrat or Republican, wants to protect
+this country and all it stands for. But we cannot let our zeal for
+security destroy our fundamental freedoms. There must be a system of
+checks and balances to ensure that the goals of security and liberty
+both receive attention.
+ I question whether this Administration is succeeding in that
+challenge. I question this Administration's actions because I love this
+country too much to sit back and watch our fundamental freedoms give
+way to indefinite detentions and secret tribunals.
+ For several years now, this Congress has abrogated its
+responsibility to ask the tough questions. But today, we have an
+opportunity to change that. There are difficult decisions ahead of us.
+I am hopeful that the members of this committee will follow their
+conscience and not the prevailing political winds of the day. These
+issues are too important.
+ As we start this process, I for one plan to keep an open mind. But
+I cannot do my job unless this Administration starts to provide real
+answers. We have the time to give thoughtful consideration to whether
+particular powers actually advance security and adequately protect
+civil liberties. But we can't do that in a vacuum. We need to know the
+facts. We need to know whether these powers are actually helping
+protect this country from terrorism. And we need to know their effect
+on fundamental freedoms. These are not Republican issues, and they are
+not Democratic issues. They are American issues, and the public
+deserves answers. I hope we can get some starting today.
+
+ Chairman Sensenbrenner. Now, I would like to welcome our
+witness today, Attorney General Alberto Gonzales. He was sworn
+in as our Nation's 80th Attorney General in February of this
+year. Prior to his appointment, he served as counsel to
+President George W. Bush throughout the President's first term.
+Before coming to Washington, he sat on the Supreme Court of
+Texas, served as Texas Secretary of State, and served as
+General Counsel to then-Governor Bush. Before joining the
+Governor's staff, he was a partner with the law firm of Vinson
+and Elkins. It is also noteworthy to mention that General
+Gonzales has served in the Air Force, which adds to his
+distinguished career.
+ Welcome, General. We are pleased to have you testify today,
+and if you will please rise and take the oath, you may proceed
+afterwards.
+ Do you solemnly swear that the testimony before this
+Committee will be the truth, the whole truth, and nothing but
+the truth, so help you, God?
+ Attorney General Gonzales. I do.
+ Chairman Sensenbrenner. Thank you. Attorney General, you
+are now recognized.
+
+ TESTIMONY OF ALBERTO R. GONZALES, ATTORNEY GENERAL, U.S.
+ DEPARTMENT OF JUSTICE
+
+ Attorney General Gonzales. Chairman Sensenbrenner,
+Congressman Conyers, and Members of the Committee, I am pleased
+to be here to discuss an issue relating to the security of the
+American people and the protection of our cherished freedoms.
+ Following the attacks of September 11, the Administration
+and Congress came together to prevent another tragedy from
+happening again. One result of our collaboration was the USA
+PATRIOT Act, which was passed by Congress with overwhelming
+bipartisan support after carefully balancing security and civil
+liberties. And since then, this law has been integral to the
+Government's prosection of the war on terrorism. 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 of this year. I believe it
+is important that they remain available. 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 the fight.
+ As Congress considers whether to renew these provisions, I
+am open to suggestions for clarifying and strengthening the Act
+and I look forward to meeting with those both inside and
+outside of Congress who have expressed concern about some of
+these provisions. But let me be clear that I cannot support any
+proposal that would undermine our ability to combat terrorism
+effectively.
+ All of us continue to have the same objective, ensuring the
+security of the American people while preserving our civil
+liberties. I, therefore, hope that we would consider
+reauthorization in a calm and thoughtful manner and with the
+understanding that while the tools of the PATRIOT Act are
+important, they are not extraordinary. Many of these
+authorities to deal with terrorists have long been available to
+prosecutors to deal with ordinary criminals, and actions under
+the Act often must occur with the approval of a Federal judge.
+Our dialogue should be based on these facts rather than
+exaggeration.
+ And 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 relatively
+new information recently declassified about the use of certain
+PATRIOT Act provisions.
+ Of the 16 provisions scheduled to sunset, I understand that
+some Members of this Committee are most concerned 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 of 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 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 and have
+obtained library records in connection with a criminal
+investigation, I understand section 215 may be considered
+controversial because of fears concerning its theoretical use
+to obtain library records. However, I can report the Department
+has not sought a section 215 order to obtain library or book
+store 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 an
+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 applied to grand jury subpoenas in
+criminal cases. 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 relevant 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 the standard
+that law enforcement must meet to justify a search for
+electronic surveillance. 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 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 an international
+terrorist or spy switched 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 afford to take that risk.
+Section 206 fixed this problem by authorizing multi-point
+surveillance of an international terrorist or spy when a judge
+finds that the target may take action to thwart surveillance;
+and as of March 30, this provision had been used 49 times.
+ As in the case of multi-point wiretaps for traditional
+criminal investigations, section 206 contains ample safeguards
+to protect the privacy of innocent Americans. The target of
+roving surveillance must be identified or described
+specifically in the order. The Government cannot use a 206
+roving wiretap order to move from target to target. If the
+Government wants to obtain a wiretap for a new target, it must
+go back to court.
+ Another important FISA-related PATRIOT Act provision is
+section 207. Prior to this law, the Justice Department invested
+considerable time returning to court to renew existing orders.
+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 the time
+saved by FBI agents, administrative staff, and the judiciary.
+Department personnel were able to spend that time pursuing
+other investigations and oversight matters.
+ And 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. And 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 these 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, established a nationwide standard for
+issuing delayed notice search warrants, which have been used by
+law enforcement and criminal investigations and approved by
+courts for decades. Under section 213, law enforcement must
+always provide notice to a person whose property is searched. A
+judge may allow that notice to be temporarily delayed, but that
+person will always receive notification.
+ The Department uses this tool only when necessary. For
+instance, from enactment of the PATRIOT Act through January 31
+of this year, 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
+the 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 this information 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.
+ I believe the authorities of the PATRIOT Act are critical
+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
+its effectiveness. 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.
+ Chairman Sensenbrenner. Thank you very much, Attorney
+General Gonzales.
+ [The prepared statement of Mr. Gonzales follows:]
+
+ Prepared Statement of the Honorable Alberto R. Gonzales
+
+ Chairman Sensenbrenner, Ranking Member Conyers, and Members of the
+Committee:
+ It is my pleasure to appear before you this afternoon to discuss
+the USA PATRIOT Act. Approximately three-and-a-half years ago, our
+Nation suffered a great tragedy. Thousands of our fellow citizens were
+murdered at the World Trade Center, the Pentagon, and a field in rural
+Pennsylvania. We will never forget that day or the heroes who perished
+on that hallowed ground. Forever in our Nation's collective memory are
+stories of the New York City firefighters who rushed into burning
+buildings so that others might live and of the brave passengers who
+brought down United Airlines Flight 93 before it could reach
+Washington, DC, and the messages from those trapped in the World Trade
+Center saying their last goodbyes to loved ones as they faced certain
+death will stay forever in our hearts.
+ In the wake of this horrific attack on American soil, we mourned
+our Nation's terrible loss. In addition, we came together in an effort
+to prevent such a tragedy from ever happening again. Members of both
+parties worked together on legislation to ensure that investigators and
+prosecutors would have the tools they need to uncover and disrupt
+terrorist plots. Additionally, members joined hands across the aisle to
+guarantee that our efforts to update and strengthen the laws governing
+the investigation and prosecution of terrorism remained firmly within
+the parameters of the Constitution and our fundamental national
+commitment to the protection of civil rights and civil liberties.
+ The result of this collaboration was the USA PATRIOT Act, which
+passed both Houses of the Congress with overwhelming bipartisan
+majorities and was signed into law by President Bush on October 26,
+2001. In the past three-and-a-half years, the USA PATRIOT Act has been
+an integral part of the Federal Government's successful prosecution of
+the war against terrorism. Thanks to the Act, we have been able to
+identify terrorist operatives, dismantle terrorist cells, disrupt
+terrorist plots, and capture terrorists before they have been able to
+strike.
+ Many of the most important provisions of the USA PATRIOT Act,
+however, are scheduled to expire at the end of this year. Therefore, I
+am here today primarily to convey one simple message: All provisions of
+the USA PATRIOT Act that are scheduled to sunset at the end of this
+year must be made permanent. While we have made considerable progress
+in the war against terrorism in the past three-and-a-half years, al
+Qaeda and other terrorist groups still pose a grave threat to the
+safety and security of the American people. The tools contained in the
+USA PATRIOT Act have proven to be essential weapons in our arsenal to
+combat the terrorists, and now is not the time for us to be engaging in
+unilateral disarmament. Moreover, many provisions in the Act simply
+updated the law to reflect recent technological developments and have
+been used, as was intended by Congress, not only in terrorism cases,
+but also to combat other serious criminal conduct. If these provisions
+are not renewed, the Department's ability to combat serious offenses
+such as cybercrime, child pornography, and kidnappings will also be
+hindered.
+ As Congress considers whether to renew key USA PATRIOT Act
+provisions, I also wish to stress that I am open to any ideas that may
+be offered for improving these provisions. If members of this Committee
+or other members of Congress wish to offer proposals in this regard, I
+and others at the Department of Justice would be happy to consult with
+you and review your ideas. However, let me be clear about one thing: I
+will not support any proposal that would undermine the ability of
+investigators and prosecutors to disrupt terrorist plots and combat
+terrorism effectively.
+ It is also my sincere hope that we will be able to consider these
+crucial issues in a calm and thoughtful fashion. All of us seek to
+ensure the safety and security of the American people and to protect
+their civil liberties as well. As this debate goes forward, I will
+treat those who express concerns about the USA PATRIOT Act with respect
+and listen to their concerns with an open mind. I also hope that all
+who participate in the debate will stick to the facts and avoid
+overheated rhetoric that inevitably tends to obfuscate rather than
+elucidate the truth.
+ Today, I would like to use the rest of my testimony to explain how
+key provisions of the USA PATRIOT Act have helped to protect the
+American people. I will particularly focus on those sections of the Act
+that are scheduled to expire at the end of 2005. To begin with, I will
+discuss how the USA PATRIOT Act has enhanced the federal government's
+ability to share intelligence. Then, I will explain how the USA PATRIOT
+Act provided terrorism investigators with many of the same tools long
+available to investigators in traditional criminal cases. Additionally,
+I will explore how the USA PATRIOT Act updated the law to reflect new
+technology. And finally, I will review how the Act protects the civil
+liberties of the American people and respects the important role of
+checks and balances within the Federal Government.
+
+ INFORMATION SHARING
+
+ The most important reforms contained in the USA PATRIOT Act
+improved coordination and information sharing within the Federal
+Government. Prior to the attacks of September 11, 2001, our
+counterterrorism efforts were severely hampered by unnecessary
+obstacles and barriers to information sharing. These obstacles and
+barriers, taken together, have been described as a ``wall'' that
+largely separated intelligence personnel from law enforcement
+personnel, thus dramatically hampering the Department's ability to
+detect and disrupt terrorist plots.
+ It is vitally important for this Committee to understand how the
+``wall'' was developed and how it was dismantled, not for the purpose
+of placing blame but rather to ensure that it is never rebuilt. Before
+the passage of the USA PATRIOT Act, the Foreign Intelligence
+Surveillance Act (FISA) mandated that applications for orders
+authorizing electronic surveillance or physical searches under FISA
+were required to include a certification that ``the purpose'' of the
+surveillance or search was to gather foreign intelligence information.
+This requirement, however, came to be interpreted by the courts and
+later the Department of Justice to require that the ``primary purpose''
+of the collection was to obtain foreign intelligence information rather
+than evidence of a crime. And, because the courts evaluated the
+Department's purpose for using FISA, in part, by examining the nature
+and extent of coordination between intelligence and law enforcement
+personnel, the more coordination that occurred, the more likely courts
+would find that law enforcement, rather than foreign intelligence, had
+become the primary purpose of the surveillance or search, a finding
+that would prevent the court from authorizing surveillance under FISA.
+As a result, over the years, the ``primary purpose'' standard had the
+effect of constructing a metaphorical ``wall'' between intelligence and
+law enforcement personnel.
+ During the 1980s, a set of largely unwritten rules only limited
+information sharing between intelligence and law enforcement officials
+to some degree. In 1995, however, the Department established formal
+procedures that limited the sharing of information between intelligence
+and law enforcement personnel. The promulgation of these procedures was
+motivated in part by the concern that the use of FISA authorities would
+not be allowed to continue in particular investigations if criminal
+prosecution began to overcome intelligence gathering as an
+investigation's primary purpose.
+ As they were originally designed, the procedures were intended to
+permit a degree of interaction and information sharing between
+prosecutors and intelligence officers, while at the same time ensuring
+that the FBI would be able to obtain or continue FISA surveillance and
+later use the fruits of that surveillance in a criminal prosecution.
+Over time, however, coordination and information sharing between
+intelligence and law enforcement investigators became even more limited
+in practice than was permitted in theory. Due both to the complexities
+of the restrictions on information sharing and to a perception that
+improper information sharing could end a career, investigators often
+erred on the side of caution and refrained from sharing information.
+The end result was a culture within the Department sharply limiting the
+exchange of information between intelligence and law enforcement
+officials.
+ In hindsight, it is difficult to overemphasize the negative impact
+of the ``wall.'' In order to uncover terrorist plots, it is essential
+that investigators have access to as much information as possible.
+Often, only by piecing together disparate and seemingly unrelated
+points of information are investigators able to detect suspicious
+patterns of activity, a phenomenon generally referred to as
+``connecting the dots.'' If, however, one set of investigators has
+access to only one-half of the dots, and another set of investigators
+has access to the other half of the dots, the likelihood that either
+set of investigators will be able to connect the dots is significantly
+reduced.
+ The operation of the ``wall'' was vividly illustrated in testimony
+from Patrick Fitzgerald, U.S. Attorney for the Northern District of
+Illinois, before the Senate Judiciary Committee:
+
+ I was on a prosecution team in New York that began a criminal
+ investigation of Usama Bin Laden in early 1996. The team--
+ prosecutors and FBI agents assigned to the criminal case--had
+ access to a number of sources. We could talk to citizens. We
+ could talk to local police officers. We could talk to other
+ U.S. Government agencies. We could talk to foreign police
+ officers. Even foreign intelligence personnel. And foreign
+ citizens. And we did all those things as often as we could. We
+ could even talk to al Qaeda members--and we did. We actually
+ called several members and associates of al Qaeda to testify
+ before a grand jury in New York. And we even debriefed al Qaeda
+ members overseas who agreed to become cooperating witnesses.
+ But there was one group of people we were not permitted to
+ talk to. Who? The FBI agents across the street from us in lower
+ Manhattan assigned to a parallel intelligence investigation of
+ Usama Bin Laden and al Qaeda. We could not learn what
+ information they had gathered. That was ``the wall.''
+
+ Thanks in large part to the USA PATRIOT Act, this ``wall'' has been
+lowered. Section 218 of the Act, in particular, helped to tear down the
+``wall'' by eliminating the ``primary purpose'' requirement under FISA
+and replacing it with a ``significant purpose'' test. Under section
+218, the Department may now conduct FISA surveillance or searches if
+foreign-intelligence gathering is a ``significant purpose'' of the
+surveillance or search. As a result, courts no longer need to compare
+the relative weight of the ``foreign intelligence'' and ``law
+enforcement'' purposes of a proposed surveillance or search and
+determine which is the primary purpose; they simply need to determine
+whether a significant purpose of the surveillance is to obtain foreign
+intelligence. The consequence is that intelligence and law enforcement
+personnel may share information much more freely without fear that such
+coordination will undermine the Department's ability to continue to
+gain authorization for surveillance under FISA.
+ Section 218 of the USA PATRIOT Act not only removed what was
+perceived at the time as the primary impediment to robust information
+sharing between intelligence and law enforcement personnel; it also
+provided the necessary impetus for the removal of the formal
+administrative restrictions as well as the informal cultural
+restrictions on information sharing. Thanks to the USA PATRIOT Act, the
+Department has been able to move from a culture where information
+sharing was viewed with a wary eye to one where it is an integral
+component of our counterterrorism strategy. Following passage of the
+Act, the Department adopted new procedures specifically designed to
+increase information sharing between intelligence and law enforcement
+personnel. Moreover, Attorney General Ashcroft instructed every U.S.
+Attorney across the country to review intelligence files to discover
+whether there was a basis for bringing criminal charges against the
+subjects of intelligence investigations. He also directed every U.S.
+Attorney to develop a plan to monitor intelligence investigations, to
+ensure that information about terrorist threats is shared with other
+agencies, and to consider criminal charges in those investigations.
+ The increased information sharing facilitated by section 218 of the
+USA PATRIOT Act has led to tangible results in the war against
+terrorism: plots have been disrupted; terrorists have been apprehended;
+and convictions have been obtained in terrorism cases. Information
+sharing between intelligence and law enforcement personnel, for
+example, was critical in successfully dismantling a terror cell in
+Portland, Oregon, popularly known as the ``Portland Seven,'' as well as
+a terror cell in Lackawanna, New York. Such information sharing has
+also been used in the prosecution of: several persons involved in al
+Qaeda drugs-for-weapons plot in San Diego, two of whom have pleaded
+guilty; nine associates in Northern Virginia of a violent extremist
+group known as Lashkar-e-Taiba that has ties to al Qaeda, who were
+convicted and sentenced to prison terms ranging from four years to life
+imprisonment; two Yemeni citizens, Mohammed Ali Hasan Al-Moayad and
+Mohshen Yahya Zayed, who were charged and convicted for conspiring to
+provide material support to al Qaeda and HAMAS; Khaled Abdel Latif
+Dumeisi, who was convicted by a jury in January 2004 of illegally
+acting as an agent of the former government of Iraq as well as two
+counts of perjury; and Enaam Arnaout, the Executive Director of the
+Illinois-based Benevolence International Foundation, who had a long-
+standing relationship with Osama Bin Laden and pleaded guilty to a
+racketeering charge, admitting that he diverted thousands of dollars
+from his charity organization to support Islamic militant groups in
+Bosnia and Chechnya. Information sharing between intelligence and law
+enforcement personnel has also been extremely valuable in a number of
+other ongoing or otherwise sensitive investigations that I am not at
+liberty to discuss today.
+ While the ``wall'' primarily blocked the flow of information from
+intelligence investigators to law enforcement investigators, another
+set of barriers, before the passage of the USA PATRIOT Act, often
+prevented law enforcement officials from sharing information with
+intelligence personnel and others in the government responsible for
+protecting the national security. Federal law, for example, was
+interpreted generally to prohibit federal prosecutors from disclosing
+information from grand jury testimony and criminal investigative
+wiretaps to intelligence and national defense officials even if that
+information indicated that terrorists were planning a future attack,
+unless such officials were actually assisting with the criminal
+investigation. Sections 203(a) and (b) of the USA PATRIOT Act, however,
+eliminated these obstacles to information sharing by allowing for the
+dissemination of that information to assist Federal law enforcement,
+intelligence, protective, immigration, national defense, and national
+security officials in the performance of their official duties, even if
+their duties are unrelated to the criminal investigation. (Section
+203(a) covers grand jury information, and section 203(b) covers wiretap
+information). Section 203(d), likewise, ensures that important
+information that is obtained by law enforcement means may be shared
+with intelligence and other national security officials. This provision
+does so by creating a generic exception to any other law purporting to
+bar Federal law enforcement, intelligence, immigration, national
+defense, or national security officials from receiving, for official
+use, information regarding foreign intelligence or counterintelligence
+obtained as part of a criminal investigation. Indeed, section 905 of
+the USA PATRIOT Act requires the Attorney General to expeditiously
+disclose to the Director of Central Intelligence foreign intelligence
+acquired by the Department of Justice in the course of a criminal
+investigation unless disclosure of such information would jeopardize an
+ongoing investigation or impair other significant law enforcement
+interests.
+ The Department has relied on section 203 in disclosing vital
+information to the intelligence community and other federal officials
+on many occasions. Such disclosures, for instance, have been used to
+assist in the dismantling of terror cells in Portland, Oregon and
+Lackawanna, New York, to support the revocation of suspected
+terrorists' visas, to track terrorists' funding sources, and to
+identify terrorist operatives overseas.
+ The information sharing provisions described above have been
+heralded by investigators in the field as the most important provisions
+of the USA PATRIOT Act. Their value has also been recognized by the 9/
+11 Commission, which stated in its official report that ``[t]he
+provisions in the act that facilitate the sharing of information among
+intelligence agencies and between law enforcement and intelligence
+appear, on balance, to be beneficial.''
+ Since the passage of the USA PATRIOT Act, Congress has taken in the
+Homeland Security Act of 2002 and the Intelligence Reform and Terrorism
+Prevention Act of 2004 other important steps forward to improve
+coordination and information sharing throughout the Federal Government.
+If Congress does not act by the end of the year, however, we will soon
+take a dramatic step back to the days when unnecessary obstacles
+blocked vital information sharing. Three of the key information sharing
+provisions of the USA PATRIOT Act, sections 203(b), 203(d), and 218,
+are scheduled to sunset at the end of the year. It is imperative that
+we not allow this to happen. To ensure that the ``wall'' is not
+reconstructed and investigators are able to ``connect the dots'' to
+prevent future terrorist attacks, these provisions must be made
+permanent.
+
+ USING PREEXISTING TOOLS IN TERRORISM INVESTIGATIONS
+
+ In addition to enhancing the information sharing capabilities of
+the Department, the USA PATRIOT Act also permitted several existing
+investigative tools that had been used for years in a wide range of
+criminal investigations to be used in terrorism cases as well.
+Essentially, these provisions gave investigators the ability to fight
+terrorism utilizing many of the same court-approved tools that have
+been used successfully and constitutionally for many years in drug,
+fraud, and organized crime cases.
+ Section 201 of the USA PATRIOT Act is one such provision. In the
+context of criminal law enforcement, Federal investigators have long
+been able to obtain court orders to conduct wiretaps when investigating
+numerous traditional criminal offenses. Specifically, these orders have
+authorized the interception of certain communications to investigate
+the predicate offenses listed in the federal wiretap statute, 18 U.S.C.
+Sec. 2516(1). The listed offenses include numerous crimes, such as drug
+crimes, mail fraud, passport fraud, embezzlement from pension and
+welfare funds, the transmission of wagering information, and obscenity
+offenses.
+ Prior to the passage of the USA PATRIOT Act, however, certain
+extremely serious crimes that terrorists are likely to commit were not
+included in this list, which prevented law enforcement authorities from
+using wiretaps to investigate these serious terrorism-related offenses.
+As a result, law enforcement could obtain under appropriate
+circumstances a court order to intercept phone communications in a
+passport fraud investigation but not a chemical weapons investigation
+or an investigation into terrorism transcending national boundaries.
+ Section 201 of the Act ended this anomaly in the law by amending
+the criminal wiretap statute to add the following terrorism-related
+crimes to the list of wiretap predicates: (1) chemical-weapons
+offenses; (2) certain homicides and other acts of violence against
+Americans occurring outside of the country; (3) the use of weapons of
+mass destruction; (4) acts of terrorism transcending national borders;
+(5) financial transactions with countries which support terrorism; and
+(6) material support of terrorists and terrorist organizations.
+ This provision simply enables investigators to use wiretaps when
+looking into the full range of terrorism-related crimes. This authority
+makes as much, if not more, sense in the war against terrorism as it
+does in traditional criminal investigations; if wiretaps are an
+appropriate investigative tool to be utilized in cases involving
+bribery, gambling, and obscenity, then surely investigators should be
+able to use them when investigating the use of weapons of mass
+destruction, acts of terrorism transcending national borders, chemical
+weapons offenses, and other serious crimes that terrorists are likely
+to commit.
+ It is also important to point out that section 201 preserved all of
+the pre-existing standards in the wiretap statute. For example, law
+enforcement must file an application with a court, and a court must
+find that: (1) there is probable cause to believe an individual is
+committing, has committed, or is about to commit a particular predicate
+offense; (2) there is probable cause to believe that particular
+communications concerning that offense will be obtained through the
+wiretap; and (3) ``normal investigative procedures'' have been tried
+and failed or reasonably appear to be unlikely to succeed or are too
+dangerous.
+ Section 206 of the USA PATRIOT Act, like section 201 discussed
+above, provided terrorism investigators with an authority that
+investigators have long possessed in traditional criminal
+investigations. Before the passage of the Act, multipoint or so-called
+``roving'' wiretap orders, which attach to a particular suspect rather
+than a particular phone or communications facility, were not available
+under FISA. As a result, each time an international terrorist or spy
+switched communications providers, for example, by changing cell phones
+or Internet accounts, investigators had to return to court to obtain a
+new surveillance order, often leaving investigators unable to monitor
+key conversations.
+ Congress eliminated this problem with respect to traditional
+criminal crimes, such as drug offenses and racketeering, in 1986 when
+it authorized the use of multi-point or ``roving'' wiretaps in criminal
+investigations. But from 1986 until the passage of the USA PATRIOT Act
+in 2001, such authority was not available under FISA for cases
+involving terrorists and spies. Multi-point wiretaps could be used to
+conduct surveillance of drug dealers but not international terrorists.
+However, such authority was needed under FISA. International terrorists
+and foreign intelligence officers are trained to thwart surveillance by
+changing the communications facilities they use, thus making vital the
+ability to obtain ``roving'' surveillance. Without such surveillance,
+investigators were often left two steps behind sophisticated
+terrorists.
+ Section 206 of the Act amended the law to allow the FISA Court to
+authorize multi-point surveillance of a terrorist or spy when it finds
+that the target's actions may thwart the identification of those
+specific individuals or companies, such as communications providers,
+whose assistance may be needed to carry out the surveillance. Thus, the
+FISA Court does not have to name in the wiretap order each
+telecommunications company or other ``specified person'' whose
+assistance may be required.
+ A number of federal courts--including the Second, Fifth, and Ninth
+Circuits--have squarely ruled that multi-point wiretaps are perfectly
+consistent with the Fourth Amendment. Section 206 simply authorizes the
+same constitutional techniques used to investigate ordinary crimes to
+be used in national-security investigations. Despite this fact, section
+206 remains one of the more controversial provisions of the USA PATRIOT
+Act. However, as in the case of multi-point wiretaps used for
+traditional criminal investigations, section 206 contains ample
+safeguards to protect the privacy of innocent Americans.
+ First, section 206 did not change FISA's requirement that the
+target of multi-point surveillance must be identified or described in
+the order. In fact, section 206 is always connected to a particular
+target of surveillance. For example, even if the Justice Department is
+not sure of the actual identity of the target of such a wiretap, FISA
+nonetheless requires our attorneys to provide a description of the
+target of the electronic surveillance to the FISA Court prior to
+obtaining multi-point surveillance order.
+ Second, just as the law required prior to the Act, the FISA Court
+must find that there is probable cause to believe the target of
+surveillance is either a foreign power or an agent of a foreign power,
+such as a terrorist or spy. In addition, the FISA Court must also find
+that the actions of the target of the application may have the effect
+of thwarting surveillance before multi-point surveillance may be
+authorized.
+ Third, section 206 in no way altered the robust FISA minimization
+procedures that limit the acquisition, retention, and dissemination by
+the government of information or communications involving United States
+persons.
+ Section 214 is yet another provision of the USA PATRIOT Act that
+provides terrorism investigators with the same authority that
+investigators have long possessed in traditional criminal
+investigations. Specifically, this section allows the government to
+obtain a pen register or trap-and-trace order in national security
+investigations where the information to be obtained is likely to be
+relevant to an international terrorism or espionage investigation. A
+pen register or trap-and-trace device can track routing and addressing
+information about a communication--for example, which numbers are
+dialed from a particular telephone. Such devices, however, are not used
+to collect the content of communications.
+ Under FISA, intelligence officers may seek a court order for a pen
+register or trap-and-trace to gather foreign intelligence information
+or information about international terrorism. Prior to the enactment of
+the USA PATRIOT Act, however, FISA required government personnel to
+certify not just that the information they sought to obtain with a pen
+register or trap-and-trace device would be relevant to their
+investigation, but also that the particular facilities being monitored,
+such as phones, were being used by foreign governments, international
+terrorists, or spies. As a result, it was much more difficult to obtain
+a pen register or trap-and-trace device order under FISA than it was
+under the criminal wiretap statute, where the applicable standard was
+and remains simply one of relevance in an ongoing criminal
+investigation.
+ Section 214 of the Act simply harmonized the standard for obtaining
+a pen register order in a criminal investigation and a national-
+security investigation by eliminating the restriction limiting FISA pen
+register and trap-and-trace orders to facilities used by foreign agents
+or agents of foreign powers. Applicants must still, however, certify
+that a pen register or trap-and-trace device is likely to reveal
+information relevant to an international terrorism or espionage
+investigation or foreign intelligence information not concerning a
+United States person. This provision made the standard contained in
+FISA for obtaining a pen register or trap-and-trace order parallel with
+the standard for obtaining those same orders in the criminal context.
+Now, as before, investigators cannot install a pen register or trap-
+and-trace device unless they apply for and receive permission from the
+FISA Court.
+ I will now turn to section 215, which I recognize has become the
+most controversial provision in the USA PATRIOT Act. This provision,
+however, simply granted national security investigators the same
+authority that criminal investigators have had for centuries--that is,
+to request the production of records that may be relevant to their
+investigation. For years, ordinary grand juries have issued subpoenas
+to obtain records from third parties that are relevant to criminal
+inquiries. But just as prosecutors need to obtain such records in order
+to advance traditional criminal investigations, so, too, must
+investigators in international terrorism and espionage cases have the
+ability, with appropriate safeguards, to request the production of
+relevant records.
+ While obtaining business records is a long-standing law enforcement
+tactic that has been considered an ordinary tool in criminal
+investigations, prior to the USA PATRIOT Act it was difficult for
+investigators to obtain access to the same types of records in
+connection with foreign intelligence investigations. Such records, for
+example, could be sought only from common carriers, public
+accommodation providers, physical storage facility operators, and
+vehicle rental agencies. In addition, intelligence investigators had to
+meet a higher evidentiary standard to obtain an order requiring the
+production of such records than prosecutors had to meet to obtain a
+grand jury subpoena to require the production of those same records in
+a criminal investigation.
+ To address this anomaly in the law, section 215 of the Act made
+several important changes to the FISA business-records authority so
+that intelligence agents would be better able to obtain crucial
+information in important national-security investigations. Section 215
+expanded the types of entities that can be compelled to disclose
+information. Under the old provision, the FBI could obtain records only
+from ``a common carrier, public accommodation facility, physical
+storage facility or vehicle rental facility.'' The new provision
+contains no such restrictions. Section 215 also expanded the types of
+items that can be requested. Under the old authority, the FBI could
+only seek ``records.'' Now, the FBI can seek ``any tangible things
+(including books, records, papers, documents, and other items).''
+ I recognize that section 215 has been subject to a great deal of
+criticism because of its speculative application to libraries, and
+based on what some have said about the provision, I can understand why
+many Americans would be concerned. The government should not be
+obtaining the library records of law-abiding Americans, and I will do
+everything within my power to ensure that this will not happen on my
+watch.
+ Section 215 does not focus on libraries. Indeed, the USA PATRIOT
+Act nowhere mentions the word ``library,'' a fact that many Americans
+are surprised to learn. Section 215 simply does not exempt libraries
+from the range of entities that may be required to produce records. Now
+some have suggested, since the Department has no interest in the
+reading habits of law-abiding Americans, that section 215 should be
+amended to forbid us from using the provision to request the production
+of records from libraries and booksellers. This, however, would be a
+serious mistake.
+ Libraries are currently not safe havens for criminals. Grand jury
+subpoenas have long been used to obtain relevant records from libraries
+and bookstores in criminal investigations. In fact, law enforcement
+used this authority in investigating the Gianni Versace murder case as
+well as the case of the Zodiac gunman in order to determine who checked
+out particular books from public libraries that were relevant in those
+murder investigations. And if libraries are not safe havens for common
+criminals, neither should they be safe havens for international
+terrorists or spies, especially since we know that terrorists and spies
+have used libraries to plan and carry out activities that threaten our
+national security. The Justice Department, for instance, has confirmed
+that, as recently as the winter and spring of 2004, a member of a
+terrorist group closely affiliated with al Qaeda used Internet service
+provided by a public library to communicate with his confederates.
+ Section 215, moreover, contains very specific safeguards in order
+to ensure that the privacy of law-abiding Americans, both with respect
+to their library records as well as other types of records, is
+respected. First, section 215 expressly protects First Amendment
+rights, unlike grand jury subpoenas. Even though libraries and
+bookstores are not specifically mentioned in the provision, section 215
+does prohibit the government from using this authority to conduct
+investigations ``of a United States person solely on the basis of
+activities protected by the First Amendment to the Constitution of the
+United States.'' In other words, the library habits of ordinary
+Americans are of no interest to those conducting terrorism
+investigations, nor are they permitted to be.
+ Second, any request for the production of records under section 215
+must be issued through a court order. Therefore, investigators cannot
+use this authority unilaterally to compel any entity to turn over its
+records; rather, a judge must first approve the government's request.
+By contrast, a grand jury subpoena is typically issued without any
+prior judicial review or approval. Both grand jury subpoenas and
+section 215 orders are also governed by a standard of relevance. Under
+section 215, agents may not seek records that are irrelevant to an
+investigation to obtain foreign intelligence information not concerning
+a United States person or to protect against international terrorism or
+clandestine intelligence activities.
+ Third, section 215 has a narrow scope. It can only be used in an
+authorized investigation (1) ``to obtain foreign intelligence
+information not concerning a United States person''; or (2) ``to
+protect against international terrorism or clandestine intelligence
+activities.'' It cannot be used to investigate ordinary crimes, or even
+domestic terrorism. On the other hand, a grand jury many obtain
+business records in investigations of any federal crime.
+ Finally, section 215 provides for thorough congressional oversight
+that is not present with respect to grand-jury subpoenas. On a semi-
+annual basis, I must ``fully inform'' appropriate congressional
+committees concerning all requests for records under section 215 as
+well as the number of section 215 orders granted, modified, or denied.
+To date, the Department has provided Congress with six reports
+regarding its use of section 215.
+ Admittedly, the recipient of an order under section 215 is not
+permitted to make that order publicly known, and this confidentiality
+requirement has generated some fear among the public. It is critical,
+however, that terrorists are not tipped off prematurely about sensitive
+investigations. Otherwise, their conspirators may flee and key
+information may be destroyed before the government's investigation has
+been completed. As the U.S. Senate concluded when adopting FISA: ``By
+its very nature, foreign intelligence surveillance must be conducted in
+secret.''
+
+ UPDATING THE LAW TO REFLECT NEW TECHNOLOGY
+
+ As well as providing terrorism investigators many of the same tools
+that law enforcement investigators had long possessed in traditional
+criminal investigations, many sections of the USA PATRIOT Act updated
+the law to reflect new technology and to prevent sophisticated
+terrorists and criminals from exploiting that new technology. Several
+of these provisions, some of which are currently set to sunset at the
+end of this year, simply updated tools available to law enforcement in
+the context of ordinary criminal investigations to address recent
+technological developments, while others sought to make existing
+criminal statutes technology-neutral. I wish to focus on five such
+provisions of the Act, which are currently set to expire at the end of
+2005. The Department believes that each of these provisions has proven
+valuable and should be made permanent.
+ Section 212 amended the Electronic Communications Privacy Act to
+authorize electronic communications service providers to disclose
+communications and records relating to customers or subscribers in an
+emergency involving the immediate danger of death or serious physical
+injury. Before the USA PATRIOT Act, for example, if an Internet service
+provider had learned that a customer was about to commit a terrorist
+act and notified law enforcement to that effect, the service provider
+could have been subject to civil lawsuits. Now, however, providers are
+permitted voluntarily to turn over information to the government in
+emergencies without fear of civil liability. It is important to point
+out that they are under no obligation whatsoever to review customer
+communications and records. This provision also corrected an anomaly in
+prior law under which an Internet service provider could voluntarily
+disclose the content of communications to protect itself against
+hacking, but could not voluntarily disclose customer records for the
+same purpose.
+ Communications providers have relied upon section 212 to disclose
+vital and time-sensitive information to the government on many
+occasions since the passage of the USA PATRIOT Act, thus saving lives.
+To give just one example, this provision was used to apprehend an
+individual threatening to destroy a Texas mosque before he could carry
+out his threat. Jared Bjarnason, a 30-year-old resident of El Paso,
+Texas, sent an e-mail message to the El Paso Islamic Center on April
+18, 2004, threatening to burn the Islamic Center's mosque to the ground
+if hostages in Iraq were not freed within three days. Section 212
+allowed FBI officers investigating the threat to obtain information
+quickly from electronic communications service providers, leading to
+the identification and arrest of Bjarnason before he could attack the
+mosque. It is not clear, however, that absent section 212 investigators
+would have been able to locate and apprehend Bjarnason in time.
+ Section 212 of the USA PATRIOT Act governed both the voluntary
+disclosure of the content of communications and the voluntary
+disclosure of non-content customer records in emergency situations; but
+in 2002, the Homeland Security Act repealed that portion of section 212
+governing the disclosure of the content of communications in emergency
+situations and placed similar authority in a separate statutory
+provision that is not scheduled to sunset. The remaining portion of
+section 212, governing the disclosure of customer records, however, is
+set to expire at the end of 2005. Should section 212 expire,
+communications providers would be able to disclose the content of
+customers' communications in emergency situations but would not be able
+voluntarily to disclose non-content customer records pertaining to
+those communications. Such an outcome would defy common sense. Allowing
+section 212 to expire, moreover, would dramatically restrict
+communications providers' ability voluntarily to disclose life-saving
+information to the government in emergency situations.
+ Section 202, for its part, modernized the criminal code in light of
+the increased importance of telecommunications and digital
+communications. The provision allows law enforcement to use pre-
+existing wiretap authorities to intercept voice communications, such as
+telephone conversations, in the interception of felony offenses under
+the Computer Fraud and Abuse Act. These include many important
+cybercrime and cyberterrorism offenses, such as computer espionage and
+intentionally damaging a Federal Government computer. Significantly,
+section 202 preserved all of the pre-existing standards in the wiretap
+statute, meaning that law enforcement must file an application with a
+court, and a court must find that: (1) there is probable cause to
+believe an individual is committing, has committed, or is about to
+commit a particular predicate offense; (2) there is probable cause to
+believe that particular communications concerning that offense will be
+obtained through the wiretap; and (3) ``normal investigative
+procedures'' have been tried and failed or reasonably appear to be
+unlikely to succeed or are too dangerous. If wiretaps are an
+appropriate investigative tool to be utilized in cases involving
+bribery, gambling, and obscenity, as was the case prior to the passage
+of the USA PATRIOT Act, then surely investigators should be able to use
+them when investigating computer espionage, extortion, and other
+serious cybercrime and cyberterrorism offenses.
+ Turning to section 220, that provision allows courts, in
+investigations over which they have jurisdiction, to issue search
+warrants for electronic evidence stored outside of the district where
+they are located. Federal law requires investigators to use a search
+warrant to compel an Internet service provider to disclose unopened e-
+mail messages that are less than six months old. Prior to the USA
+PATRIOT Act, some courts interpreting Rule 41 of the Federal Rules of
+Criminal Procedure declined to issue search warrants for e-mail
+messages stored on servers in other districts, leading to delays in
+many time-sensitive investigations as investigators had to bring
+agents, prosecutors, and judges in another district up to speed.
+Requiring investigators to obtain warrants in distant jurisdictions
+also placed enormous administrative burdens on districts in which major
+Internet service providers are located, such as the Northern District
+of California and the Eastern District of Virginia.
+ Section 220 fixed this problem. It makes clear, for example, that a
+judge with jurisdiction over a murder investigation in Pennsylvania can
+issue a search warrant for e-mail messages pertaining to that
+investigation that were stored on a server in Silicon Valley. Thus,
+investigators in Pennsylvania, under this scenario, can ask a judge
+familiar with the investigation to issue the warrant rather than having
+to ask Assistant United States Attorneys in California, who are
+unfamiliar with the case, to ask a judge in the United States District
+Court for the Northern District of California, who is also unfamiliar
+with the case, to issue the warrant.
+ The Department has already utilized section 220 in important
+terrorism investigations. As Assistant Attorney General Christopher
+Wray testified before this committee on October 21, 2003, section 220
+was useful in the Portland terror cell case because ``the judge who was
+most familiar with the case was able to issue the search warrants for
+the defendants' e-mail accounts from providers in other districts,
+which dramatically sped up the investigation and reduced all sorts of
+unnecessary burdens on other prosecutors, agents and courts.'' This
+section has been similarly useful in the ``Virginia Jihad'' case
+involving a Northern Virginia terror cell and in the case of the
+infamous ``shoebomber'' terrorist Richard Reid. Moreover, the ability
+to obtain search warrants in the jurisdiction of the investigation has
+proven critical to the success of complex, multi-jurisdictional child
+pornography cases.
+ Contrary to concerns voiced by some, section 220 does not promote
+forum-shopping; the provision may be used only in a court with
+jurisdiction over the investigation. Investigators may not ask any
+court in the country to issue a warrant to obtain electronic evidence.
+ It is imperative that section 220 be renewed; allowing the
+provision to expire would delay many time-sensitive investigations and
+result in the inefficient use of investigators', prosecutors', and
+judges' time.
+ Moving to section 209, that provision made existing statutes
+technology-neutral by providing that voicemail messages stored with a
+third-party provider should be treated like e-mail messages and
+answering machine messages, which may be obtained through a search
+warrant. Previously, such messages fell under the rubric of the more
+restrictive provisions of the criminal wiretap statute, which apply to
+the interception of live conversations. Given that stored voice
+communications possess few of the sensitivities associated with the
+real-time interception of telephone communications, it was unreasonable
+to subject attempts to retrieve voice-mail message stored with third-
+party providers to the same burdensome process as requests for
+wiretaps. Section 209 simply allows investigators, upon a showing of
+probable cause, to apply for and receive a court-ordered search warrant
+to obtain voicemails held by a third-party provider, preserving all of
+the pre-existing standards for the availability of search warrants.
+Since the passage of the USA PATRIOT Act, such search warrants have
+been used in a variety of criminal cases to obtain key evidence,
+including voicemail messages left for foreign and domestic terrorists,
+and to investigate a large-scale Ecstasy smuggling ring based in the
+Netherlands.
+ The speed with which voicemail is seized and searched can often be
+critical to an investigation given that deleted messages are lost
+forever. Allowing section 209 to expire, as it is set to do in 2005,
+would once again require different treatment for stored voicemail
+messages than for messages stored on an answering machine in a person's
+home, needlessly hampering law enforcement efforts to investigate
+crimes and obtain evidence in a timely manner.
+ Section 217 similarly makes criminal law technology-neutral,
+placing cyber-trespassers on the same footing as physical intruders by
+allowing victims of computer-hacking crimes voluntarily to request law
+enforcement assistance in monitoring trespassers on their computers.
+Just as burglary victims have long been able to invite officers into
+their homes to catch the thieves, hacking victims can now invite law
+enforcement assistance to assist them in combating cyber-intruders.
+Section 217 does not require computer operators to involve law
+enforcement if they detect trespassers on their systems; it simply
+gives them the option to do so. In so doing, section 217 also preserves
+the privacy of law-abiding computer users by sharply limiting the
+circumstances under which section 217 is available. Officers may not
+agree to help a computer owner unless (1) they are engaged in a lawful
+investigation; (2) there is reason to believe that the communications
+will be relevant to that investigation; and (3) their activities will
+not acquire the communications of non-trespassers. Moreover, the
+provision amended the wiretap statute to protect the privacy of an
+Internet service provider's customers by providing a definition of
+``computer trespasser'' which excludes an individual who has a
+contractual relationship with the service provider. Therefore, for
+example, section 217 would not allow Earthlink to ask law enforcement
+to help monitor a hacking attack on its system that was initiated by
+one of its own subscribers.
+ Since its enactment, section 217 has played a key role in sensitive
+national security matters, including investigations into hackers'
+attempts to compromise military computer systems. Section 217 is also
+particularly helpful when computer hackers launch massive ``denial of
+service'' attacks--which are designed to shut down individual web
+sites, computer networks, or even the entire Internet. Allowing section
+217 to expire, which is set to occur in 2005, would lead to a bizarre
+world in which a computer hacker's supposed privacy right would trump
+the legitimate privacy rights of a hacker's victims, making it more
+difficult to combat hacking and cyberterrorism effectively.
+
+ PROTECTING CIVIL LIBERTIES
+
+ While the USA PATRIOT Act provided investigators and prosecutors
+with tools critical for protecting the American people, it is vital to
+note that it did so in a manner fully consistent with constitutional
+rights of the American people. In section 102 of the USA PATRIOT Act,
+Congress expressed its sense that ``the civil rights and civil
+liberties of all Americans . . . must be protected,'' and the USA
+PATRIOT Act does just that.
+ In the first place, the USA PATRIOT Act contains several provisions
+specifically designed to provide additional protection to the civil
+rights and civil liberties of all Americans. Section 223, for example,
+allows individuals aggrieved by any willful violation of the criminal
+wiretap statute (Title III), the Electronic Communications Privacy Act,
+or certain provisions the FISA, to file an action in United States
+District Court to recover not less than $10,000 in damages. This
+provision allows an individual whose privacy is violated to sue the
+United States for money damages if Federal officers or employees
+disclose sensitive information without lawful authorization. Section
+223 also requires Federal departments and agencies to initiate a
+proceeding to determine whether disciplinary action is warranted
+against an officer or employee whenever a court or agency finds that
+the circumstances surrounding a violation of Title III raise serious
+questions about whether that officer or employee willfully or
+intentionally violated Title III. To date, there have been no
+administrative disciplinary proceedings or civil actions initiated
+under section 223 of the USA PATRIOT Act. I believe that this reflects
+the fact that employees of the Justice Department consistently strive
+to comply with their legal obligations. Nevertheless, section 223
+provides an important mechanism for holding the Department of Justice
+accountable, and I strongly urge Congress not to allow it to sunset at
+the end of 2005.
+ Additionally, section 1001 of the USA PATRIOT Act requires the
+Justice Department's Inspector General to designate one official
+responsible for the review of complaints alleging abuses of civil
+rights and civil liberties by Justice Department employees. This
+individual is then responsible for conducting a public awareness
+campaign through the Internet, radio, television, and newspaper
+advertisements to ensure that individuals know how to file complaints
+with the Office of the Inspector General. Section 1001 also directs the
+Office of Inspector General to submit to this Committee and the House
+Judiciary Committee on a semi-annual basis a report detailing any
+abuses of civil rights and civil liberties by Department employees or
+officials. To date, six such reports have been submitted by the Office
+of the Inspector General pursuant to section 1001; they were
+transmitted in July 2002, January 2003, July 2003, January 2004,
+September 2004, and March 2005. I am pleased to be able to state that
+the Office of the Inspector General has not documented in these reports
+any abuse of civil rights or civil liberties by the Department related
+to the use of any substantive provision of the USA PATRIOT Act.
+ In addition to containing special provisions designed to ensure
+that the civil rights and civil liberties of the American people are
+respected, the USA PATRIOT Act also respects the vital role of the
+judiciary by providing for ample judicial oversight to guarantee that
+the constitutional rights of all Americans are safeguarded and that the
+important role of checks and balances within our Federal Government is
+preserved. As reviewed above, under section 214 of the Act,
+investigators cannot utilize a pen register or trap-and-trace device
+unless they apply for and receive permission from the FISA Court.
+Section 215 of the Act requires investigators to obtain a court order
+to request the production of business records in national security
+investigations. Section 206 requires the Foreign Intelligence
+Surveillance Court to approve the use of ``roving'' surveillance in
+national security investigations. Sections 201 and 202 require a
+Federal court to approve the use of a criminal investigative wiretap,
+and sections 209 and 220 require a Federal court to issue search
+warrants to obtain evidence in a criminal investigation.
+ Besides safeguarding the vital role of the judiciary, the USA
+PATRIOT Act also recognizes the crucial importance of congressional
+oversight. On a semiannual basis, for example, as noted before, I am
+required to report to this Committee and the House Judiciary Committee
+the number of applications made for orders requiring the production of
+business records under section 215 as well as the number of such orders
+granted, modified or denied. I am also required to fully inform the
+Permanent Select Committee on Intelligence of the House of
+Representatives and the Select Committee on Intelligence of the Senate
+on a semiannual basis concerning all requests for the production of
+business records under section 215. These reports were transmitted by
+the Department to the appropriate committees in April 2002, January
+2003, September 2003, December 2003, September 2004, and December 2004.
+Moreover, I am required by statute to submit a comprehensive report on
+a semiannual basis to the Permanent Select Committee on Intelligence of
+the House of Representatives and the Select Committee on Intelligence
+of the Senate regarding the Department's use of FISA. These reports
+contain valuable information concerning the Department's use of USA
+PATRIOT Act provisions, including sections 207, 214, and 218.
+ I would note that the Department has gone to great lengths to
+respond to congressional concerns about the implementation of the USA
+PATRIOT Act. The Department has, for example, provided answers to more
+than 520 oversight questions from Members of Congress regarding the USA
+PATRIOT Act. In the 108th Congress alone, in fact, the Department sent
+100 letters to Congress that specifically addressed the USA PATRIOT
+Act. The Department also has provided witnesses at over 50 terrorism-
+related hearings, and its employees have conducted numerous formal and
+informal briefings with Members and staff on USA PATRIOT Act
+provisions. In short, the Department has been responsive and will
+continue to be responsive as Congress considers whether key sections of
+the USA PATRIOT Act will be made permanent.
+
+ CONCLUSION
+
+ In closing, the issues that we are discussing today are absolutely
+critical to our Nation's future success in the war against terrorism.
+The USA PATRIOT Act has a proven record of success when it comes to
+protecting the safety and security of the American people, and we
+cannot afford to allow many of the Act's most important provisions to
+expire at the end of the year. For while we certainly wish that the
+terrorist threat would disappear on December 31, 2005, we all know that
+this will not be the case. I look forward to working with the Members
+of this Committee closely in the weeks and months ahead, listening to
+your concerns, and joining together again on a bipartisan basis to
+ensure that those in the field have the tools that they need to
+effectively prosecute the war against terrorism. Finally, Mr. Chairman,
+we have taken the liberty of supplying the Committee with a copy of FBI
+Director Mueller's testimony concerning the USA PATRIOT Act, which he
+presented yesterday before the Senate's Committee on the Judiciary. We
+ask that it be made a part of this Committee's hearing record, as well.
+ I look forward to answering your questions today.
+
+ Chairman Sensenbrenner. Before getting to questions, let me
+just explain the process that I intend to use during this
+hearing. The Chair has been making notes of the approximate
+order in which Members have arrived on both sides of the aisle,
+and after Mr. Conyers and I are done asking General Gonzales
+questions, the Chair will alternate from side to side in the
+order in which Members appeared and will let everybody know
+what the list is with the order.
+ Because we have a limited amount of time today and because
+those Members who are going to go to the Pope's funeral have to
+get out to Andrews Air Force Base, the Chair announces right
+now off the bat that he is going to strictly enforce the 5-
+minute rule on everybody, including himself. We will have a
+break for votes somewhere around 3. If all of the Members who
+wish to ask questions have not asked their questions by then,
+we will come back and the remaining Members will be able to ask
+their questions.
+ So the Chair now recognizes himself for 5 minutes.
+ Attorney General Gonzales, as you know, I was instrumental
+in putting the sunset into the PATRIOT Act because I felt that
+the Congress should have a chance to have the opportunity to
+review the effectiveness of the Act's provisions as well as use
+that as a tool to do oversight over the Department of Justice.
+Do you believe that the sunset should be completely repealed,
+or do you think that there should be another sunset put in, and
+if so, how far in the future do you think we should force
+another review?
+ Attorney General Gonzales. Mr. Chairman, it was my
+understanding that the sunset provisions were included in the
+Act because of concerns about whether or not the Congress had
+achieved the right balance between protecting our country and
+securing our civil liberties. We've now had a period of time to
+evaluate how these provisions work, how the Department has used
+these provisions. I think it's a strong record of success. I
+think the Act has been effective. I think the Department has
+acted responsibly. I think there is sufficient information for
+the Congress to make a determination that, in fact, these
+provisions should be made permanent.
+ As a matter of reality, we all understand that the Congress
+at any time, the next year or the year after, could at any time
+evaluate whether or not certain provisions should be
+discontinued, and so even if the decision were made to remove
+the sunsets, that would not, in my judgment, in any way affect
+the ability or the right or the authority of Congress to
+examine and reexamine the way that these authorities are
+working and the way that the Department is using these
+authorities.
+ Chairman Sensenbrenner. One of the things that I believe
+all Members of the Committee and particularly I have heard is
+concerns about section 215. Let me say that--or make two
+points. First of all, I am gratified at your testimony that the
+Justice Department has never sought bookstore, medical, or gun
+sale records under section 215.
+ Secondly, I would observe that if section 215 is repealed,
+as some have advocated, all of these records would still be
+available to law enforcement through the procedure of a grand
+jury subpoena, and with a grand jury subpoena, it is up to the
+recipient to hire a lawyer and move to quash the subpoena in
+Federal court, whereas under section 215, there is judicial
+review by the FISA court before the FISA warrant is issued
+under section 215.
+ I salute your willingness to have some amendments to
+section 215 to clarify the process under which the Justice
+Department utilizes this section. Can you talk in a little bit
+greater detail on how you suggest section 215 be amended to do
+so?
+ Attorney General Gonzales. As I have indicated, Mr.
+Chairman, the Department has taken the position in litigation
+that we interpret 215 as including an implicit right for a
+recipient of a 215 order to challenge that order. We also read
+in the statute the right of a recipient to disclose the
+existence of a receipt of an order to an attorney in order to
+help them prepare such a challenge.
+ I, quite frankly, understand the concerns at the fact that
+the statute doesn't have those rights explicitly spelled out in
+the statute, and for that reason, the Department is quite
+comfortable supporting an amendment to make it clear that, in
+fact, those authorities should be included as part of a
+statute.
+ Another important point that we would support is the
+specific acknowledgement of what the appropriate standard is.
+There is some question as to whether or not a relevance
+standard is applicable in the statute. We believe it does. We
+believe that is the applicable statute--standard, even though
+that--and we think judges have interpreted 215 to impose a
+relevance standard. But in order to remove any doubt or
+ambiguity, we would support the explicit acknowledgment that
+that is the standard that must be met whenever we go to the
+Federal judge, that that is the standard that we have to meet
+in order to receive a 215 order.
+ Chairman Sensenbrenner. Thank you. My time has expired.
+ The gentleman from Michigan, Mr. Conyers?
+ Mr. Conyers. Thank you, Mr. Chairman. Thank you.
+ I have within the time allotted to me three questions. One
+is about the Brandon Mayfield incident in which the PATRIOT Act
+was used.
+ The second is about terrorists' access to guns in which we
+have a GAO study that shows, Mr. Attorney General, that out of
+56 firearm purchase attempts by individuals designated as
+suspected terrorists, 47 of them were permitted to involve
+themselves in--were able to purchase weapons.
+ And my third question is about racial and religious
+profiling in which since September 11 the Department of Justice
+has interviewed over 3,000 Middle Eastern immigrants, counted
+mosques and surveyed their attendees, registered over 83,000
+Arab and Muslim visitors, interviewed 10,000 Iraqi nationals,
+and I wanted to find out what all this profiling was for,
+racial and religious profiling, which is contrary to FBI
+guidelines, and what do we have to show for it?
+ Let's start with Brandon Mayfield, who really got hit up
+pretty hard and I think, to make this a short conversation,
+you've already conceded that the PATRIOT Act was involved,
+right?
+ Attorney General Gonzales. What I have said, Congressman,
+is that section 213 was not implicated--was not used. There
+were stories, I believe, in the press that section 213 of the
+PATRIOT Act was the basis for the search. That is not true.
+ What I have said is that the PATRIOT Act is implicated to
+the extent that this was a FISA search and that FISA, the
+provisions of FISA were amended by the PATRIOT Act. For
+example, section 218, which deals with changing the standard
+from the purpose to a significant purpose in targeting an
+intelligence investigation, and also sections----
+ Mr. Conyers. Excuse me, sir. Sections 207 and 218 were
+involved, right? Sections----
+ Attorney General Gonzales. Sections 207 and 218, that's
+what I was just saying.
+ Mr. Conyers. Yes.
+ Attorney General Gonzales. Yes.
+ Mr. Conyers. So the answer is yes.
+ Attorney General Gonzales. To the extent that we're talking
+about utilizing FISA and to the extent that the PATRIOT Act
+amended provisions of FISA, yes. Provisions of the PATRIOT Act
+were used in connection with that investigation, but I might
+add that based on what I know today, and I'm limited in what I
+can say because this matter is in litigation, I don't believe
+that the Brandon Mayfield case is an example where there was a
+misuse or abuse of a provision of the PATRIOT Act.
+ Mr. Conyers. Well, let me just ask you, can we on this
+Committee cooperate with you to open up those Mayfield files so
+we can learn exactly how the PATRIOT Act was used in this case?
+The Seattle Times and others widely report PATRIOT Act use in
+Portland, attorney investigation, Attorney General says, and
+goes on and on and on, and I think you've said the same thing
+here.
+ Attorney General Gonzales. Again, Congressman, this matter
+is in litigation so I'm likely to be limited about what
+information I can share with you, but I'm happy to go back and
+see what we can do to provide information to the Committee in
+connection with this case.
+ Mr. Conyers. Let's go on to the----
+ Attorney General Gonzales. The GAO report. Congressman, it
+is up to Congress to determine who is able to possess a firearm
+in this country. Congress designates certain categories of
+people, based upon various actions, that make them disabled
+from owning a firearm. If someone does not have such a
+disability which has been recognized by Congress, even though
+they're a terrorist, there are limits to what this Department
+can do to prevent them----
+ Mr. Conyers. Would you be willing to support legislation
+limiting a terrorist's access to such weapons?
+ Attorney General Gonzales. I think that we'd be willing to
+consider looking at such legislation, Congressman----
+ Mr. Conyers. Well, 47 suspected terrorists were able to get
+weapons. What----
+ Attorney General Gonzales. Let me try to explain that we
+try to be very, very careful about who appears on the Terrorist
+Watch List.
+ Mr. Conyers. Sure.
+ Attorney General Gonzales. There are various reasons that
+people appear on the Terrorist Watch List, and so the fact that
+someone appears on the Terrorist Watch List----
+ Mr. Conyers. That doesn't make them a good guy.
+ Chairman Sensenbrenner. The gentleman's time has expired.
+ The gentleman from California, Mr. Lungren?
+ Mr. Lungren. Thank you very much, Mr. Chairman, and welcome
+again to the Committee, Mr. Attorney General.
+ Mr. Attorney General, when I've had town hall meetings in
+my district, even though I'm a former Attorney General of
+California, and try to explain it in legal terms, I've had
+people raise section 213. They don't know it as delayed
+notification. They know it by another name. And a concern is
+always raised about this would necessarily lead to abuses and
+somehow seems unfair.
+ This is an investigative authority that has been used in
+cases other than terrorism. Could you just explain why that is
+an important technique, an important authority, and how, if
+extending it to terrorism cases, it changes the nature of it or
+the seriousness of the authority given, or if it does not? That
+is, what would you say to my constituents who ask me this
+question at town hall meetings, despite my best efforts to
+answer them?
+ Attorney General Gonzales. I would respond by maybe giving
+them this hypothetical. I'm going to change some facts here
+about a hypothetical and how this tool can be very useful in
+dealing with terrorism, and that is, let's say, we uncover
+ammonium nitrate, a large stockpile of ammonium nitrate. It is
+a very important ingredient in creating a very dangerous bomb.
+So we discover this. We don't know who all is involved in this
+plot, this possible conspiracy. So we want to make sure we get
+everyone involved in it. On the other hand, we want to grab it
+because we're concerned that we may lose track of it and it may
+be used to build a bomb and kill lots of people.
+ And so we get a delayed notification warrant that allows us
+to come in. We substitute the ammonium nitrate with an inert
+substitute and we're able to continue the investigation to the
+appropriate time without jeopardizing a possible creation of a
+bomb, an explosion killing hundreds of people. So that would be
+an example of where the ability to go in and do a search
+without notifying the target can be extremely beneficial until
+the time comes when we have sufficient information to make our
+case, and that would be an example that I would provide to your
+constituents.
+ Mr. Lungren. And is that any different than what we do in
+other kinds of criminal cases with the delayed notification
+authority?
+ Attorney General Gonzales. Delayed notification warrants
+have been in place for many, many years in ordinary criminal
+investigations for a wide variety of crimes. People need to
+understand that it is under the jurisdiction and supervision of
+a Federal judge. We still have to show the probable--we still
+have to meet the probable cause standards, and so----
+ Mr. Lungren. And that is all done prior to the time that
+the entry is made or the----
+ Attorney General Gonzales. Absolutely. We go to a judge
+like in every other case and we make our case, present the
+facts, and the judge makes the determination whether or not we
+meet the standards under the Constitution.
+ Mr. Lungren. Mr. Attorney General, you have said here and
+you've said before, and I'll quote an article in the New York
+Times that quotes you as warning Congress that we cannot afford
+to assume the quiet of the day will mean peace for tomorrow and
+the terrorist threat will not expire, even if parts of the
+PATRIOT Act are allowed to. If we fail to renew these
+provisions of the PATRIOT Act, could you tell us how this would
+harm law enforcement, because we made sort of a broad statement
+that it would, but specifically, how would it?
+ Attorney General Gonzales. One major way would be in the
+sharing of information. If you look at the reports of the 9/11
+Commission and the WMD Commission, both have acknowledged that
+a serious weapon--the most effective weapon in dealing with
+terrorism is in the sharing of information. And prior to the
+PATRIOT Act, there were questions within the law enforcement
+community about how much information could be shared by those
+in the Intelligence Community with law enforcement, and those
+questions were laid to rest by certain provisions in the
+PATRIOT Act.
+ If those provisions were sunsetted, we would once again be
+in a situation where law enforcement would be very, very
+cautious in sharing of information. They would want to check
+with their superiors, and so it would cause delays in
+investigations and I think would needlessly tie the hands of
+American investigators in dealing with this threat.
+ Mr. Lungren. Thank you, Mr. Attorney General. I might just
+say for the record, while I understand what you say about
+perhaps we don't have the need to put in the sunset in the
+future, as a spur to Congress to make sure we do appropriate
+oversight, I'm inclined to support a sunset provision in the
+future, because, frankly, this is serious and the people need
+to be assured that we are, in fact, doing the oversight that is
+necessary.
+ Chairman Sensenbrenner. The time of the gentleman has
+expired.
+ The gentleman from California, Mr. Schiff?
+ Mr. Schiff. Mr. Attorney General, I want to thank you for
+being here. I'm a former Assistant U.S. Attorney and I greatly
+value the work done by Justice Department people all over the
+country.
+ I'm an original cosponsor of the House version of the
+PATRIOT bill. In my view, the PATRIOT bill was a bargain. We
+would give the Government greater ability to investigate and
+prosecute terrorism suspects, and in return, we would take upon
+ourselves greater responsibility for overseeing these more
+powerful tools.
+ In my view, we have not kept up our part of the bargain. We
+have not done adequate oversight of the PATRIOT bill in this
+House or in this Committee. For the Justice Department's part,
+I believe the Department has not been forthcoming with the
+information that we would need also to do our job of oversight.
+ And in one area in particular, I have been most concerned.
+This is an area both within, but largely without, the PATRIOT
+bill and that is the detention of Americans and lawful
+residents as enemy combatants. For 3 years now, I have been
+raising this issue, what the standards ought to be for the
+detention of an American, what due process should be afforded.
+I introduced legislation 3 years ago to authorize the detention
+of enemy combatants, but to ensure that there was access to
+judicial review and access to counsel.
+ We've had no hearing on any of this legislation. Indeed,
+requests to have a hearing just on the issue of the detention
+of Americans have not been successful. We have had no hearing
+on this subject. That's been our problem, our unwillingness to
+set any limit on the power of the executive to detain an
+American citizen. That's been our problem.
+ At the same time, efforts that I've made to learn
+information from the Justice Department and the Defense
+Department about our Government's own policies of when we treat
+someone as an enemy combatant or when we treat them as a
+criminal defendant--when we treat them as a defendant with all
+of the rights that attach to that, when we treat them as an
+enemy combatant with none of the due process that attaches to
+that, I have been unable to get really any meaningful
+information, even in classified form.
+ When you gave a speech to the ABA a year or two ago, it was
+the most information I had ever heard about how we were
+deciding when to treat someone as an enemy combatant. More
+information than you gave publicly was denied me in classified
+form. That cannot persist.
+ I find it odd that there aren't more voices in the Congress
+raising this issue, that aren't demanding that Congress act to
+set limits on the detention of Americans, to set due process
+for the detainees at Guantanamo. Of course, all this thing, not
+done for the terrorism suspects but done for all the rest of
+us, to protect our civil liberties and our due process. I find
+it very odd there have been so few voices in the Congress on
+this issue, but I find I have a new and powerful ally on the
+Supreme Court of the United States.
+ As you know, the District Courts have been conflicting
+about whether the executive has the power to detain enemy
+combatants and under what conditions. Justice Scalia, in one of
+his dissenting opinions, commented, ``I frankly do not know
+whether the tools are sufficient to meet the Government's
+security needs, including the need to obtain intelligence
+through interrogation. It is far beyond my competence or the
+Court's competence to determine that, but it is not beyond
+Congress's.'' We could not have, I think, a stronger admonition
+that we need to act in the Congress, and so I'm in the unusual
+position of asking you to help us to do our job.
+ Mr. Attorney General, do you believe, as I do, that the
+Justice Department's power to detain enemy combatants, which I
+believe the Department has to have in the war on terrorism,
+don't you believe that power is strengthened when the Congress
+acts to provide both the authority clearly and the due process
+clearly? Isn't the power strengthened because it will now have
+the imprimatur of both the legislative and executive branch
+and, therefore, have the respect of the judicial branch?
+Shouldn't we act so that we don't have piecemeal decision
+making by the courts? Will you work with the Congress to
+propose legislation setting out the due process for the
+detention of Americans as enemy combatants and the detainees in
+Guantanamo?
+ Attorney General Gonzales. Congressman, there is a lot
+there to respond to. Generally, in the area of war, the framers
+of the Constitution gave both to the executive branch and to
+the legislative branch certain powers, and I think in the
+exercise of the power, I, for one, as someone who looks at
+these things, look at where you are on the continuing spectrum.
+ I mean, for example, if the--if America is attacked, I
+think this President, as Commander in Chief, can take action to
+defend this country without action by Congress. I think he has
+the authority to do that. But if we're talking about taking
+100,000 troops into another country for an extended period of
+time, then it becomes, I think, more difficult whether or not--
+can the Commander in Chief do that without any kind of
+Congressional authorization.
+ I think the Framers probably had it right. It probably
+works best, particularly when we talk about putting the lives
+of men and women at risk, to have both branches working
+together in most cases. Whether or not legislation is
+appropriate, these are very, very difficult issues. I have
+really discovered how difficult these issues have been these
+past 4 years.
+ There is a reason why courts around this country reach
+conflicting decisions about these issues, because they are so
+hard. Many of the issues have never been confronted in our
+courts before. It's a new kind of war, and some of the old
+rules just don't apply. And so we try to deal with them.
+ And so to answer directly your question about whether or
+not legislation would be beneficial, I'd have to look at the
+circumstances. I'd have to look at the legislation, quite
+frankly.
+ You're right. We waited too long, in my judgment, to
+respond, to explain to the American people what we're doing and
+why, and it was one of the things that I mentioned in that
+speech you referred to, is that we waited. We waited a long
+time because of concerns that we didn't want to say anything
+that might help the enemy, might jeopardize something that
+we're doing. But we finally acknowledged that we were hurting
+ourselves, that the American people and the Congress really
+needed to know what we were doing and why, and that was--I'm
+delighted to know about your speech, because I did, I think,
+talk a lot about the process that we used in designating
+someone as an enemy combatant or having them go through the
+criminal justice system.
+ Chairman Sensenbrenner. The time of the gentleman has
+expired.
+ The time of the gentleman from Texas, Mr. Smith.
+ Mr. Smith of Texas. Thank you, Mr. Chairman.
+ General Gonzales, thank you for being here today. General
+Gonzales, recently, you made the statement that you felt that
+the PATRIOT Act is working and, in fact, it has helped to
+prevent additional terrorist attacks. Could you be more
+specific? Could you point to the number of individuals, the
+number of would-be terrorists who might have been detected and
+apprehended? Can you point to terrorist rings that might have
+been disrupted or broken up to substantiate that statement?
+ Attorney General Gonzales. It's kind of hard to sort of
+prove a negative or show a negative. I can certainly--I've got
+a list here of where the PATRIOT Act has been beneficial or
+helpful. I can certainly provide to the Congress and to you
+examples of cases where the PATRIOT Act has been very helpful.
+ Mr. Smith of Texas. Let me just----
+ Attorney General Gonzales. I would just repeat what I said
+earlier in a response to another question about, I mean, just
+the sharing of information. There's a reason that there's not
+been another attack in this country, quite frankly, and not
+just the PATRIOT Act. I know this Congress worked very hard in
+standing up a new Department, Homeland Security, so a lot of
+actions taken by the Government in order to defend this
+country.
+ But I think the PATRIOT Act has been very, very helpful. We
+have in various cities around the country, in Portland, Oregon,
+in Buffalo and Detroit, I mean, in New York City, rounded up
+people who were engaged in plotting another terrorist attack.
+Often times, we obtain convictions. Some critics of the
+Administration have said, well, you've only got low-level
+convictions. That's because we try to preempt something really
+bad from happening, and so sometimes we cannot--we have to move
+in early enough to prevent another attack and we don't have a
+sufficient basis to prosecute someone for something really
+serious.
+ Mr. Smith of Texas. General Gonzales, how many convictions
+have you obtained?
+ Attorney General Gonzales. I don't know, but I can get that
+information for you.
+ Mr. Smith of Texas. Okay. I would be curious about that.
+ Let me go to another aspect or another kind of terrorist
+threat. You are aware, I am sure, that last year, the number of
+individuals coming across our Southern border from terrorist-
+sponsoring nations increased dramatically, and I'm just
+wondering what we're doing to target the individuals who might
+be coming into our country to commit terrorist acts.
+ And as a sort of a second part of that question, I point
+out, which you also know to be the case, the Border Patrol
+tells us that for every three individuals seeking to come into
+the country illegally, two succeed. Two out of every three
+people who want to come into the country illegally are able to
+do so. We wouldn't be surprised, given that, that there might
+not be another terrorist attack. But what is your response as
+to how we can prevent that from occurring and how we target the
+individuals who might be coming across the border who would
+be--might be would-be terrorists from terrorist-sponsoring
+countries?
+ Attorney General Gonzales. Congressman, I know the
+immigration issue is one that you have spent a lot of time on
+and you have a lot of expertise and knowledge about. It is a
+very, very difficult issue. As I've said many times in talking
+about this issue, because we have a country that traditionally
+has invited immigrants, we embrace them, we want them to come
+in our country, it is the fabric of our great country, is the
+contributions of immigrants.
+ We have generally an open border in the South. People along
+the border communities cross the border every day, back and
+forth, so that they can go to work, provide for their families,
+and that's the reality of life.
+ On the other hand, a new reality after September 11 is the
+fact that we need to do what we can do to make it so that
+terrorists cannot come into this country. Of course, the
+Department of Homeland Security has now the primary
+responsibility for dealing with that. I know Mike Chertoff, he
+and I have spoken about this issue. We've invested money, the
+Congress working with the Administration and making sure
+additional monies are available for additional agents. Our
+technology is getting better. But we still have a long way to
+go. I mean, this is a very difficult issue. It's one that's
+existed for many, many years. If it were one that could easily
+be solved, it would have been solved a long time ago. But I
+just--we'll continue to work with the Congress to try to
+address it.
+ We understand it's a problem. I was in Mexico last week. We
+talked about this issue with President Fox and the Attorney
+General in Mexico, and so they understand that we consider it a
+serious--we're seriously concerned about it, and I was
+reassured by the Attorney General that they consider it an
+issue for them. They realize how harmful it would be for their
+economy, their tourism, if, in fact, we have a situation where
+terrorists come up from Latin America, other countries, through
+Mexico into our country and cause another attack. They realize
+how damaging that would be, and so they're very concerned about
+it, as well.
+ Mr. Smith of Texas. Thank you, General Gonzales. Regarding
+my first question, the number of convictions, I understand it's
+in the 80's to 90's range, and I'll look forward to that
+information.
+ Attorney General Gonzales. Thank you.
+ Mr. Smith of Texas. Thank you, Mr. Chairman.
+ Chairman Sensenbrenner. The time of the gentleman has
+expired.
+ The gentleman from California, Mr. Berman?
+ Mr. Berman. Thank you very much, Mr. Chairman, and thank
+you, Mr. Attorney General, for being here and for at least
+conveying the impression that you sometimes hear and even
+understand the questions we ask. That's already an improvement
+over your predecessor.
+ The PATRIOT Act sunset provisions you've discussed, I
+frankly think most Members of Congress have come or will come
+to the conclusion that many of these sunsetted provisions
+should be--perhaps all of them should be continued, perhaps
+refined. Mr. Chairman, I would hope this review, though, would
+also take into account a number of unilateral actions--Mr.
+Schiff certainly brought up one in the context of the enemy
+combatants issue--that we should be considering that weren't
+part of the PATRIOT Act but were developed in response to
+September 11 and in our effort to fight a more effective war on
+terror.
+ Some of these include policies instituted without any input
+from Congress, mining data from public and non-public
+databases, blanket closure of deportation hearings to the
+public, blanket closure, denial of bond to whole classes of
+non-citizens, altering the makeup of the Board of Immigration
+Appeals in a way that has overwhelmed the Federal circuit
+courts, and permitting the DOG's immigration attorney's to
+unilaterally overrule an immigration judge when he has ordered
+someone released on bond.
+ Today, Mr. Delahunt and I are introducing a law we call the
+Civil Liberties Restoration Act. It doesn't repeal any part of
+the PATRIOT Act. It doesn't impede in any way the ability of
+agencies to share information. Our goal is simply to ensure
+there are appropriate checks and balances on a number of
+PATRIOT provisions as well as an opportunity for Congress to
+address some of the unilateral policy decisions that I just
+mentioned. They're all drafted, we think, in a way that tries
+to achieve the balance that you and others have talked about. I
+would hope at some point you might have a chance to take a look
+at some of the proposals contained in that legislation.
+ But I think the 9/11 Commission was instructive on this
+issue, and my question to you is--I'm going to mention--they
+established some standards for the process that we are now
+about to embark on and I'd like your reaction to it. The 9/11
+Commission essentially said we should reexamine the specific
+provisions that sunset, taking care not to renew any provision
+unless the Government can show, one, that the power actually
+materially enhances security, and two, that there is adequate
+supervision of the executive's use of the power to ensure
+protection of civil liberties.
+ Secondly, if the power is granted, there must be adequate
+guidelines and oversight to properly confine its use.
+ And thirdly, on the issue I've just touched on, because the
+issues of national security and civil liberties posed by anti-
+terrorism powers that are not part of the PATRIOT Act sunset
+are at least as serious as any posed by those provisions that
+do sunset, Congress should undertake the broader review of
+anti-terrorism powers both within and outside of the PATRIOT
+Act, using the same standard of review that I just mentioned
+for the sunset provisions.
+ Anything wrong with that as a methodological approach for
+us to begin this effort?
+ Attorney General Gonzales. I think this country was founded
+by people concerned about the exercise of power in our home
+country and I think it is appropriate to always--to question
+and to examine the exercise of power by the Government, and so
+I welcome--that's why I welcome this debate.
+ I think that the record shows that the PATRIOT Act has been
+effective. I think the record shows that the exercise of the
+authorities granted to the Department of Justice have been used
+wisely and judiciously. But I think that----
+ Mr. Berman. Let me just throw out one thing here. For
+instance, in our bill that we're introducing today, the blanket
+closure of all immigration hearings, why isn't it case by case?
+Where there's a legitimate national security reason to close
+that hearing, by all means, you ought to have the authority to
+have that hearing closed. But why does there need to be a
+blanket closure?
+ Attorney General Gonzales. Congressman, I wasn't involved--
+--
+ Mr. Berman. Can you defend that decision?
+ Attorney General Gonzales.--I wasn't involved in that
+decision, and so I probably do not know--in fact, I know I
+don't know all the facts that were weighed or considered in
+connection with that----
+ Mr. Berman. From what you know now, what do you think of
+that?
+ Attorney General Gonzales. Well, I think that there were
+mistakes made, quite frankly, and I think if you look at the IG
+report about the detentions of immigrants, there were some
+mistakes made. We've worked very, very hard--the Department has
+worked hard to try and address and respond to the
+recommendations made by the IG. But in terms of the blanket,
+that would be something I would have to look at.
+ Chairman Sensenbrenner. The time of the gentleman has
+expired.
+ The gentleman from Iowa, Mr. King?
+ Mr. King. Thank you, Mr. Chairman.
+ Mr. Attorney General, I thank you for being here to testify
+today, I believe the first time in the position that you're in.
+I welcome you to the Judiciary Committee.
+ A series of questions have arisen as I listened to your
+testimony and the questions here today and one of them is with
+regard to the question asked by the Ranking Member. Fifty-six
+attempts to purchase guns and 47 of them were successful in
+purchasing guns, and as I listened to the follow-up question, I
+heard the phrase, ``suspected terrorists.'' Was there any
+anticipation that suspected terrorists would be screened from
+getting guns, and could you also speak as to under what
+circumstances the other nine might have been prohibited?
+ Attorney General Gonzales. I don't have the information
+about the other nine. We--unless Congress says that if you have
+this disability or something or you have this characteristic or
+you've done this kind of action, you're going to be entitled to
+own a firearm in this country. As I've said before, we do not
+want to see a situation where terrorists have the right to
+possess a weapon in this country. But at the end of the day,
+all we can do is enforce the law.
+ Under our current structure, you are disabled if you've
+been involved in some kind of domestic abuse. You're disabled
+if you're an illegal immigrant. You're disabled if you're a
+felon. But in that list of disabilities is not the words
+``terrorist.'' That doesn't mean that we just give up.
+Obviously, when someone wants to purchase a weapon and there's
+a hit on the Terrorist Watch List, we tried to alert the local
+officials and see if we can get additional information to find
+out if there is a way that this person can either be arrested
+or deported or can we discover some kind of disability to
+prevent them from getting a weapon. But if we can't do that,
+they're entitled under the law to get a weapon.
+ Mr. King. We don't have a category for suspected terrorists
+and I think that's the summary of that answer and I thank you.
+ Then on another subject matter, the PATRIOT Act requires
+the Inspector General of the Department of Justice to provide a
+twice-yearly report as to the civil liberties, whether they
+have been violated by use of the PATRIOT Act, and it's my
+understanding that those six reports have not found a single
+violation of civil liberties.
+ Would you care to expand on that? I guess the question
+comes to me is why do I continually hear the stories about
+civil liberties being violated--and I'd expand my question a
+little more in that I'm inclined to support eliminating the
+sunset on the PATRIOT Act for the very reason of the
+demagoguery that I hear about the abuse of the PATRIOT Act and
+not finding evidence of it.
+ Attorney General Gonzales. You are correct, sir, that the
+IG is required to submit a report semi-annually about abuses
+under the PATRIOT Act, and to date, he has not been able to
+report any abuses under the PATRIOT Act. I visited with our IG
+several weeks ago and asked him again, are you aware of any
+such abuses, and he said no.
+ And as I travel around the country and I've encouraged
+other officials within the Department of Justice to go out and
+try to solicit examples of where real abuses or misuses of the
+PATRIOT Act have occurred, there's a lot of misinformation, a
+lot of disinformation out there. Some people believe that
+because certain provisions may have been struck down, that
+means that the PATRIOT Act was somehow found unconstitutional,
+and we discovered that, no, it related to a provision that was
+passed by the Congress years before the PATRIOT Act.
+ And so I think that, again, I think the record of the
+Department is a very good one regarding the use of the PATRIOT
+Act. I think that the record also reflects that Congress
+probably did a pretty good job in achieving a good balance
+between protection of civil liberties and protection of this
+country.
+ Mr. King. Thank you. And then with regard to section 215,
+do you believe there's a reason to expand that to cover
+domestic terrorism, as well?
+ Attorney General Gonzales. I would have to look at that,
+Congressman. I don't have an answer for that, whether or not
+215 should be expanded to include domestic terrorism.
+ Mr. King. And then off of Mr. Smith's statement with regard
+to the--I mean, really, the amount of immigrants coming into
+this country on the illegal side, it looks like that number is
+over three million, if using that extrapolation of Mr. Smith's
+remarks. And out of that huge haystack, how would you think it
+would be logical that we could sort the terrorist needles out
+of 3.4 million illegals?
+ Attorney General Gonzales. I think it would be difficult.
+Obviously, from our perspective, I think it is good if we know
+who is coming into this country and why they're coming into
+this country. The key question is, how do we do that, and
+that's something that we're working on and I know Members of
+Congress have been thinking about and are continuing to work on
+it, because it is a very important issue.
+ Mr. King. And I would suggest reducing the size of the
+haystack. Thank you, General Gonzales. Thank you, Mr. Chairman.
+ Chairman Sensenbrenner. The gentleman's time has expired.
+ The gentleman from New York, Mr. Nadler?
+ Mr. Nadler. Thank you. Mr. Attorney General, my basic
+problem with all of this is that the Administration, the
+current Administration that's enforcing the PATRIOT Act seems
+to have no sense of limits and no sense of due process
+whatsoever when dealing with real or alleged terrorism cases. I
+will cite, for instance, the memo that you wrote justifying
+torture, which I am sure you won't characterize as such, but I
+will.
+ Number two, the whole doctrine of the enemy combatants that
+Mr. Schiff talked about in which the President has claimed the
+power to point his finger at any American citizen--or non-
+citizen--but any American citizen and say, you are an enemy
+combatant because I say so on the basis of secret information
+which I won't reveal to you or anyone else, and by that
+declaration, I have the power to throw you in jail forever with
+no due process, no hearing, no evidence, no nothing. Nobody, to
+my knowledge, no executive in an English-speaking country has
+made such a claim of tyrannical power since before Magna Carta,
+and yet--and the Justice Department under your predecessor had
+the nerve to say to the Federal courts that they didn't have
+the jurisdiction to even question the fact or the authority of
+the President.
+ Third, you stated in your opening statement that the
+PATRIOT Act was well considered and well balanced. Well, maybe
+it's balanced and maybe not, but it certainly wasn't well
+considered. If you recall how it passed here, this Committee
+considered in detail a PATRIOT Act, considered for 4 days,
+voted on amendments, marked it up, unanimously reported the
+bill on a Thursday, I believe. Over the weekend, the leadership
+of the House together with the Administration took the well-
+considered bill, which I thought was balanced, and threw it in
+the garbage, wrote over the weekend an entirely new bill,
+presented this 200-and-some-odd-page bill to the House with two
+copies available, one for the Democrats, one for the
+Republicans, warm to the touch at 10 in the morning. We started
+the debate at 11 and voted on it at 1 and nobody had a chance
+to read it. So it's certainly not well considered. It may be
+well balanced, but certainly not well considered.
+ In light of all this, I have two specific questions about
+the bill. There are provisions in the PATRIOT Act that are fine
+and that have positively reformed the way intelligence is
+gathered and used to protect the United States and provisions
+that I think are over the top.
+ Last September, a judge in the Southern District of New
+York, Judge Morero, ruled that section 505 dealing with
+national security letters violated two constitutional
+principles, the first amendment right to freedom of speech and
+the right to be free from unreasonable searches and seizures
+under the fourth amendment. Section 505 authorizes the FBI,
+using only a piece of letterhead paper signed by a field agent
+in charge of a local FBI office, to demand private information
+without court review or approval, without the person being
+suspected of any crime, without ever having to tell him or her
+that it happened.
+ Moreover, the business from which the FBI gets these
+private records is gagged and prohibited from notifying the
+targeted individual, so they may never move in court to quash
+this request or to even question it.
+ Do you believe that section 505 should be either stricken
+or amended, question number one?
+ Question number two is that section 206 creates roving
+wiretaps in intelligence cases which allows the Government to
+get a single order that follows a target from phone to phone,
+which I think makes sense. But in addition, last year's
+Intelligence Authorization Act allows the Government to issue
+John Doe wiretaps where the phone and facility is known but the
+target is not. The combination of these two laws seems to allow
+for a general wiretap, one that follows an unknown suspect from
+unknown phone to unknown phone.
+ Should this section be changed to clarify that the
+Government would specify either the person or the phone to be
+tapped, or are we now into the business of general wiretaps
+like the British Writs of Assistance that helped spark the
+American Revolution?
+ Attorney General Gonzales. Thank you, Congressman. As to
+505, I don't think that 505, I think, should be amended or
+deleted. The court, as I understand it, found a problem with
+the fact that a person did not have the right to contest the
+national security letter or to tell anyone about the national
+security letter, even though the Department took the position,
+yes, you do, and we argued that in that litigation.
+ Mr. Nadler. That was one of the problems it found.
+ Attorney General Gonzales. I don't think that the court had
+a problem per se with 505, and some people have characterized
+this as a decision by the court that somehow struck down a
+provision of the PATRIOT Act when an ACLU attorney himself even
+acknowledged that, no, that wasn't the case. The problem was
+the first amendment and the fourth amendment and it did not
+relate to the PATRIOT Act, in my judgment.
+ In terms of roving wiretaps, in my reading of 206, I
+believe that the Department has an obligation to identify a
+specific target. We may not know the name of that person, but
+we have to go before a Federal judge and give the judge enough
+information that the judge is comfortable that we've satisfied
+the probable cause standard as to a specific target being a
+foreign power or an agent of a foreign power. That's the first
+thing.
+ And so it's not the case that if we get a wiretap on person
+A and we discover--a roving wiretap on person A and we
+discover, whoops, this is not the right guy, let's listen to
+the phone of this person, if we go to person B, we have to get
+another order from a Federal judge. So it's not the case--we
+get an order for one specific person.
+ Now, when we go to the judge, we also go to the judge
+having to satisfy a probable cause standard as to a particular
+location or facility or phone that the terrorists or target is
+either about to use or is using. So it wouldn't be the case
+where we'd be able to simply get an order from a judge to tap
+the phones of everybody in an apartment building. The way it
+works is we get a roving wiretap on, say, terrorist A and
+terrorist A is on a cell phone. If he goes to a different cell
+phone, that roving wiretap would go with that terrorist to that
+second cell phone.
+ Chairman Sensenbrenner. The gentleman's time has expired.
+ Without objection, immediately following Mr. Conyers'
+opening statement, a letter from Sarah W. Clash Drexler, Trial
+Attorney of the Department of Justice Civil Division, to Elden
+Rosenthal, an attorney in Portland, Oregon, relating to the
+Brandon Mayfield case will be inserted.
+ The gentleman from Florida, Mr. Feeney?
+ Mr. Feeney. Thank you, Mr. Chairman, and thank you, General
+Gonzales. Like yourself and a lot of proponents of the PATRIOT
+Act as well as a lot of the critics and people that have voiced
+concerns, I'm interested in finding the appropriate balance
+between civil liberties and between protecting ourself against
+this enormous threat from terrorism, which is very real indeed.
+ I note that, amongst other things, that the Constitution is
+often not absolute when it comes to civil liberties. For
+example, the prohibition against certain searches and seizures
+is based on reasonableness, according to the Founders. What
+that means to me is that whether a search or a seizure is
+reasonable or unreasonable may depend on the threat at any
+given time, so that it may not be an absolute bar. I think the
+Founders invited us to change that bar based on the threat to
+the United States and, of course, habeas corpus can be
+suspended amongst other times, so certainly under article I,
+during periods of emergency, the Congress has the right to
+suspend habeas.
+ The other thing that I note here is there are not a lot of
+legal precedents. So you've been referring to arguments by the
+ACLU. We've got different lower court decisions recently. But
+the last time we were attacked by a hostile foreign power
+successfully on the continental U.S. was 1812. There hasn't
+been a lot of litigation since 1812 on what the Government can
+or can't do in this regard.
+ We did have a Civil War within our shores from 1860 to
+1865. Chief Justice Rehnquist has written a very important book
+about 15 years before the terrorist attack called All the Laws
+But One after Lincoln's quote when he suspended habeas corpus
+and was criticized for doing so and he said, ``Am I to suffer
+basically the loss of the Union and all of our laws as we
+defend one law, that being habeas?''
+ And I guess in that historical light, since we don't have a
+lot of recent precedents on how to do this balance, I'd like to
+ask you with respect to American citizens who are suspected
+under the PATRIOT Act or other provisions of law of engaging in
+war on terror whether you can compare them to, say, a
+rebellious Confederate soldier. Lincoln thought that States per
+se didn't have the right to secede. He treated individual
+soldiers, at least at the beginning of the war, as individual
+criminals. But he didn't give them any of the normal due
+process that we would expect criminals. When he captured
+somebody from Lee's army, he treated them as a prisoner of war.
+So there's that question, and to ask you whether that has any
+precedential value.
+ Lincoln's suspension of habeas corpus, of course, there
+were, among other things, railroads being torn apart in
+Maryland by sympathizers with the Southern rebellion and there
+were Union troops that were attacked on the way. Habeas was
+suspended. That was just one of several cases.
+ And finally, as you deal with whether the Civil War and
+some of the other historical episodes in our history where we
+have had to cut back on normally anticipated and expected civil
+liberties, finally, I'd like to congratulate you, because
+there's two things that we can with some comfort say after
+September 11. One is that there have been no other successful
+attacks, and while it's true, as you said, you can't prove a
+negative, that but for the PATRIOT Act, we would have been
+attacked successfully, we can note that our enemies have made
+clear they want to attack us and they have been unsuccessful
+since September 11. And as you say, to my knowledge, there has
+been no proven civil liberty abuse under the PATRIOT Act, even
+though people are invited to bring civil actions under certain
+cases if they feel like they've been.
+ So I guess I'm interested in an historical aspect here
+because we really have a huge dearth of constitutional
+precedents dealing with how this pendulum swings, civil
+liberties versus protecting us from foreign threats.
+ Attorney General Gonzales. Congressman, I'm not sure how to
+answer that question. One point that I would want to emphasize
+is that I don't view this, the PATRIOT Act or certain actions
+by this Government, as reflecting a decision that protecting
+our country is okay at the expense of civil liberties. I think
+we can have both. I think we need to have both, quite frankly.
+I think we need to protect our country. We need to protect our
+civil liberties. I think that's very, very important.
+ I think the PATRIOT Act is an example of the Congress and
+the President coming together and trying to achieve that
+balance, because we all understand--there are reasons these
+safeguards are in here. Even after the--six weeks after the
+most horrific attack on this country, people still wanted to
+have safeguards because Members of Congress and the President
+understood that civil liberties, the protection of civil
+liberties, was equally important.
+ And so I think that it would be a mistake to say that,
+depending on what the circumstances of the moment are, that
+sometimes civil liberties should be sacrificed in any way in
+order to protect the security of this country.
+ Chairman Sensenbrenner. The gentleman's time has expired.
+ The gentlewoman from Texas, Ms. Jackson Lee.
+ Ms. Jackson Lee. Thank you very much, Mr. Chairman. Allow
+me on my time a moment of personal privilege to welcome General
+Gonzales and to recognize that our paths cross as lawyers in
+the City of Houston, and let me applaud you for your historical
+family background and the history that you're making on behalf
+of the American people.
+ And I might say that my questioning is not personal. I
+appreciate you very much and I wish your family and you best
+and well as you proceed in this very important position.
+ We have spoken on occasion on some issues dealing with
+civil rights and so I think you have a sense of my concern as
+we look at the issue of either reauthorizing or making
+permanent several positions--specific provisions of the PATRIOT
+One. I think it should be well noted that I supported a PATRIOT
+Act One legislative initiative as drafted in a bipartisan
+manner by this same Judiciary Committee. That was not the bill
+that arrived at the floor of the House and, therefore, I was
+compelled to stand, I think, more importantly with the
+Constitution and security by voting against it.
+ Let me just share very briefly some words that I think are
+important to note. ``Individual liberty is individual power.
+The nation which enjoys the most freedom must necessarily be in
+proportion to its numbers the most powerful nation.'' That's
+John Quincy Adams.
+ Another by Samuel Adams notes that ``the Constitution
+should never be construed to authorize Congress to infringe,''
+and then it goes on to say, ``on the ability of citizens to
+redress their grievances or to subject the people to
+unreasonable searches and seizures of their possessions,
+papers,'' or, as I said, possessions.
+ I say that because we seemingly have conceded to losing our
+rights because of the horrific act of 9/11. I think we are
+consistent in this Congress and in this Judiciary Committee to
+acknowledge, and I think you have acknowledged it, General,
+along with the President, that our highest responsibility is to
+secure the Nation and to secure the people of the United
+States. I don't step away from that responsibility.
+ I would argue, however, that the tone in which we have
+proceeded in the legislative initiatives have really done us
+in, and I say that because your beloved Texas now seems to be
+under the eye of the new Minutemen, Minutewomen. Border
+watchers have eyes on Texas. So because we have either created
+this atmosphere of fear, because we have either not done our
+job, we have not protected civil liberties, we have not
+enforced laws that we already have dealing with border
+security, we now have men taking up arms and placing themselves
+on the border, even to the extent that Border Patrol agents
+have said it may be a dangerous condition. So I'm concerned
+about the tone.
+ In addition, before the PATRIOT Act Two was pulled, we even
+had a potential section 501 that would take away someone's
+citizenship, which the Supreme Court under Justice Warren said
+that the 14th amendment protects our citizenship unless we
+voluntarily give it up.
+ It is the tone that has been created, and frankly, I don't
+believe that the PATRIOT Act provisions really have made us
+safer. I hope that we will vet them at a very high standard as
+to the standard of how they have denied our civil liberties,
+how they've created an atmosphere for Guantanamo Bay, and I do
+not criticize the military that is doing their job. I do
+criticize the existence of Guantanamo Bay for no reason. I
+criticize the existence of a determination of enemy combatant,
+which seemingly has no basis in law.
+ So I raise these questions with you. One, would you be able
+to provide for me the numbers of Pakistani who were required to
+sign up on the registration list in the early part of 2002-
+2003, the numbers of them? You can't give me names. How many
+were signed up? How many terrorists were found off of that
+list? That is my first question, and you obviously may not have
+that at your fingertips. I'd appreciate your issue on that.
+ Section 206 is the roving wiretap, and my question to you
+on that, the value of the roving wiretap. It doesn't seem to
+have enough restraints in terms of, again, the litmus test of
+civil liberties.
+ And my last one is to ask prospectively, because of the
+tone that's been created, do you think it's viable that we
+should have as a provision of any PATRIOT Act the removal of
+one's natural born citizenship that is protected under the 14th
+amendment? And I thank the gentleman for his concern on these
+questions.
+ Attorney General Gonzales. I don't have the information on
+Pakistan. I'll see what I can learn and see what information
+can be provided.
+ On 206, 206 is--allows the use of roving wiretaps in
+connection with intelligence investigations, and the use of
+roving wiretaps based on a probable cause standard is something
+that's been around for many, many years, has been reviewed by
+the courts, and I do believe does meet constitutional
+standards.
+ In terms of removal of citizens, I don't recall the
+specific provision you're referring to in what was, quote,
+PATRIOT----
+ Ms. Jackson Lee. Section 501.
+ Attorney General Gonzales.--PATRIOT Two, but I'd be happy
+to look at it and give you my views about it.
+ Chairman Sensenbrenner. The gentlewoman's time has expired.
+ Ms. Jackson Lee. I thank you.
+ Chairman Sensenbrenner. The gentleman from Texas, Judge
+Gohmert.
+ Mr. Gohmert. Thank you, Mr. Chairman.
+ General Gonzales, I've been a fan of yours for a long time,
+going back to my days as a judge and Chief Justice back in
+Texas. Proud to have you here. Thank you for your testimony.
+ I want to go quickly into these things. Five minutes goes
+fast. I was watching about 1 or 2 this morning a replay of some
+of your testimony yesterday with the FBI Director before the
+Senate and I wanted to clarify something with regard to section
+215 and also 217. You had mentioned there was a lot of concern.
+Obviously, there is a lot of concern. Under 215, where it
+discusses that you or your designee may make an application for
+order and it's of a U.S. person, and it goes on that that would
+be to a judge of a court or magistrate, specifies that, and
+then it says if the judge finds the application meets the
+requirements of this section, then he will grant the warrant.
+ And I heard a lot of different discussion on different
+standards of proof and I want to make sure that--and I don't
+see anything in the section, haven't seen it, which says what
+is the burden of proof when you go before that judge that's
+designated and I want to make clear for the record--find out
+clearly for the record what is that standard you have to prove
+to that judge or magistrate.
+ Attorney General Gonzales. Our position is, is that the
+standard that has to be met is a relevance standard, the same
+kind of--similar to standards that you would have to show--to
+meet in connection, say, with a grand jury subpoena.
+ You are correct that the relevance--that standard is not
+explicitly mentioned in 215. Our experience is, is that judges
+have construed 215 to impose a relevance standard. That is a
+position that we have argued in litigation. It is one of the
+amendments to 215 that the Department would support because we
+believe that that is the appropriate standard, to include a
+specific relevance reference.
+ Mr. Gohmert. Also, there's obviously been a lot of concern
+about the sharing of information, and as you've heard from both
+sides of the aisle, nobody's meaning this personal to you, but
+apparently, there was a precedent back in the early 1970's that
+had a counsel that was abusive enough he had one FBI file, went
+to prison for it. And then I hear tell there's even been a
+White House Administration so corrupt they might have even had
+1,000 FBI files and didn't have an Attorney General with the
+wherefore to go ahead and prosecute such a terrible abuse. So
+you can understand why there'd be some concerns about those
+things if it's true that you could really have that kind of
+abuse at the highest levels. I'm not concerned about you or
+this good President, but you never know. You can have a
+President like that.
+ So who gets this information that you glean? Does it, under
+your interpretation, ever get to the White House?
+ Attorney General Gonzales. Oh, absolutely not. We're
+talking about matters relating to prosecution. Certainly when I
+was in the White House and as the White House Counsel, we tried
+to be very, very clear.
+ First of all, we tried to certainly limit any
+communications between the White House and the Department of
+Justice on any criminal matter. It would have to go through the
+counsel's office because we were very, very concerned about in
+any way of sharing information between the White House and the
+Department of Justice, and even in communications between the
+counsel's office and the Department of Justice, we were also
+very, very careful about the information and the kinds of
+questions we would ask about a particular case.
+ No, believe me, we understand how sensitive this
+information is and we took great care to ensure that we didn't
+get access, and the Department was very good in ensuring that
+the White House did not get access to very sensitive
+information.
+ Mr. Gohmert. And just so you know, there are those of us
+who do not criticize an Attorney General or a Department of
+Justice that if they need information about Iraq, they question
+people that have knowledge about Iraq and don't go to New
+Zealand to ask a farmer just so they don't look like they're
+profiling.
+ But I want to ask you also, do you feel like there ought to
+be a criminal code with regard to violations of national
+security? Do we need that?
+ Attorney General Gonzales. Congressman, I don't know
+whether or not we need it or not, quite frankly. I think that
+our current laws seem to be working well, but obviously, if
+you're serious about it, I'd be happy to think about it.
+ Mr. Gohmert. Well, thank you. I wish you would. And I am in
+favor of a sunset provision. Thank you very much, Mr. Chairman.
+ Chairman Sensenbrenner. Thank you.
+ The gentlewoman from California, Ms. Lofgren.
+ Ms. Lofgren. Thank you, Mr. Chairman, and I am glad that we
+are having this hearing. I have felt for the past several years
+that we should have had some oversight in a formal sense in the
+Committee. And I think back to those days after 9/11 and the
+Committee really did work closely together, and I remember over
+the weekend in this very room personally being here and working
+on the drafts before the Committee with Viet Din and others who
+were--and we had a unanimous vote, I believe, out of this
+Committee.
+ Key to that was a sunset to make sure that we hadn't made a
+mistake, and I think I'm going to want a continued sunset just
+so it forces the Committee to review how this is going.
+ Along those lines, and you've mentioned in answer to others
+that things are in litigation. I know that there's been times
+that the Committee hasn't received information because of
+security concerns. Every Member of the Committee has signed an
+oath and we are authorized to receive classified information in
+rooms that are here in the Capitol where you leave all your
+beepers outside. I'm hopeful that we can get the information
+you cannot give in a public session in a secure site so that we
+can fully understand what's going on here so that we can do our
+job.
+ I have a couple of questions on specific elements of the
+Act. You mentioned 215. I'll tell you, I don't think any of us
+had in mind libraries and bookstores when that provision was
+put together, and you say it's never been used with a library
+or a bookstore, and I'm wondering whether the Department would
+support an effort to specify that personally identifiable
+information in bookstores or libraries would be excluded from
+section 215.
+ I'm also interested in section 218. I want to know how many
+terrorism prosecutions have actually resulted from that
+section. If you don't have it today, I'd like it later. I just
+want to know the volume. How many have been issued and how many
+prosecutions for terrorism-related activities have occurred?
+ And then I also--five minutes is not enough to get all our
+questions done, but I do have a general concern about--well,
+many things, but also habeas corpus. The very initial draft of
+the first PATRIOT Act sent over from the Department had a
+provision to suspend habeas corpus. As we know, in article I,
+section 9, suspension of habeas corpus is a power reserved to
+the legislative branch. It never really made it to print, but
+we're not going to suspend habeas corpus. But, I'm concerned
+that in a back door sort of way, we've ended up with that
+result.
+ And one of the questions that's not in the PATRIOT Act
+itself, but it's part of the general effort on terrorism
+abatement, is the use of witness provisions, material witness
+statutes. The last update I've been able to find is from 2003,
+where the statute had been used supposedly 50 times. I don't
+know what's happened since that time, but here's the concern
+that's been raised in the press, that the material witness
+statute has been used but that it hasn't been used to produce
+testimony. So I'd like to know how many times this has been
+used in the Department's efforts to combat terrorism and how
+many of those individuals actually ended up testifying, because
+I do think that that is an issue relative to due process.
+ I'm hopeful that we will have a number of hearings. I
+haven't had a chance to ask the Chairman yet, but I'm wondering
+if you could address the three questions that I've asked.
+ Attorney General Gonzales. As to 215, whether or not I
+could support a provision that would exempt from the reach of
+215 personal information from libraries and bookstores?
+ Ms. Lofgren. Personally identifiable information from
+libraries, bookstores, and I think also medical records.
+ Attorney General Gonzales. Okay. I have said before--I
+mean, the Department has no interest in rummaging around and
+learning about people's personal library habits and looking at
+their medical records. We are concerned about making sure we
+have information about people who use libraries to plot for
+purposes of engaging in some kind of terrorist activity.
+ We know that, certainly in the criminal context, libraries
+have been used and there have been investigations, there have
+been subpoenas of library records in the criminal context, and
+we've had convictions----
+ Ms. Lofgren. Well----
+ Attorney General Gonzales.--and my own judgment,
+Congresswoman, is that we should not allow libraries to become
+safe harbors for terrorists.
+ Ms. Lofgren. If I may----
+ Chairman Sensenbrenner. The time of the gentlewoman has
+expired.
+ Ms. Lofgren. I'll give a follow-up question to you.
+ Chairman Sensenbrenner. The gentleman from Indiana, Mr.
+Hostettler?
+ Mr. Hostettler. Thank you, Mr. Chairman, and thank you,
+General Gonzales, for being here, and congratulations on your
+appointment and thank you for your willingness to take on such
+a tough job. I, like many of my colleagues, have received
+numerous questions since passage of the PATRIOT Act and my
+support of the PATRIOT Act regarding section 213. I would like
+to read to you the fourth amendment to the Constitution, and I
+have a question for you afterwards.
+ Quote, ``The right of the people to be secure in their
+persons, houses, papers, and effects against unreasonable
+searches and seizures should not be violated and no warrants
+shall issue but upon probable cause supported by oath or
+affirmation and particularly describing the place to be
+searched and the persons or things to be seized,'' end quote.
+ I don't see in the fourth amendment to the Constitution a
+requirement for prior notification. Do you see that in the
+fourth amendment----
+ Attorney General Gonzales. No, and----
+ Mr. Hostettler.--in the text of the fourth amendment?
+ Attorney General Gonzales.--and I believe the Supreme Court
+in a case called, I think, Dowdia v. United States, has
+indicated that the fourth amendment does not require that
+notice be given when the warrant is executed, that it is
+constitutionally permissible to execute the warrant and to
+provide notice after the fact.
+ Mr. Hostettler. And, in fact, even though I'm not
+suggesting that we do this, but the text of the amendment
+itself does not even require for any notification whatsoever,
+be it prior or delayed notification, the text of the amendment.
+ Attorney General Gonzales. Well, I presume your reading is
+correct and there does not appear to be a requirement for
+notice, but obviously we do give notice, and even in the
+connection of section 213, notice is given in every case.
+ Mr. Hostettler. Thank you. I have a question also about
+section 215. You, I believe, stated in your oral testimony that
+a recipient of a section 215 order is allowed--can be allowed
+to challenge that order prior to its execution. Did I hear that
+correctly?
+ Attorney General Gonzales. It is our position that under
+215, a recipient could challenge that order----
+ Mr. Hostettler. Prior to its execution? Prior to the order
+being executed?
+ Attorney General Gonzales. And someone--if information is
+received, we believe that a person could seek to have that
+evidence or information suppressed in a subsequent proceeding.
+But yes, you do have the opportunity to challenge the execution
+of that order, in our judgment. We understand that 215 does not
+make that explicitly clear and we are prepared to support an
+amendment that would make that clear.
+ Mr. Hostettler. Would there be a situation that you can
+foresee where that would be harmful to the investigation and
+potentially, therefore, the national security, if that process
+was allowed to be challenged prior to the execution?
+ Attorney General Gonzales. I suppose that it could be.
+Obviously, we would do work as quickly as we could to make sure
+that that issue was heard and resolved by a judge as quickly as
+possible.
+ Mr. Hostettler. Thank you very much. I yield back the
+balance of my time.
+ Chairman Sensenbrenner. The gentleman from Virginia, Mr.
+Scott.
+ Mr. Scott. Thank you. Thank you, Mr. Chairman.
+ Mr. Gonzales, we've heard--in talking about FISA--you keep
+talking about terrorism. FISA is not limited to terrorism or
+even criminal activity, is it? General intelligence, foreign
+intelligence----
+ Attorney General Gonzales. Sure, yes.
+ Mr. Scott.--a trade deal, spying on people. So we're not
+necessarily talking about crimes.
+ Attorney General Gonzales. That is correct.
+ Mr. Scott. Is a roving wiretap limited to terrorism?
+ Attorney General Gonzales. Umm----
+ Mr. Scott. I mean, if you get a warrant----
+ Attorney General Gonzales. No. No. No. A roving wiretap is
+not limited to terrorism.
+ Mr. Scott. Not even----
+ Attorney General Gonzales. Roving wiretaps have been used
+in the criminal context for many, many years.
+ Mr. Scott. But if you get a FISA wiretap, you don't even
+have to start off with a crime, just foreign intelligence.
+ Attorney General Gonzales. Yes, that's correct.
+ Mr. Scott. You can get a roving wiretap, no crime even
+involved.
+ Attorney General Gonzales. But again, let me emphasize that
+this is not an authority that's used in the sole discretion of
+the Government. We do have to go to a Federal judge----
+ Mr. Scott. Okay. Well----
+ Attorney General Gonzales.--establish probable cause----
+ Mr. Scott. Probable cause of what?
+ Attorney General Gonzales. Establish probable cause that
+the target is either a foreign power or an agent of a foreign
+power and probable cause with respect to the location or
+facility that the target is either about to use or is using a
+certain telephone facility.
+ Mr. Scott. I didn't hear you say a crime is about to be
+committed because that's not part of a roving wiretap, and the
+probable cause, most people think you're talking about probable
+cause of a crime. That's not what you're talking about, is it?
+No.
+ Now, are you willing to limit this power to terrorism?
+ Attorney General Gonzales. Am I willing to limit section
+206 to terrorism?
+ Mr. Scott. Right.
+ Attorney General Gonzales. Mr. Scott, I would have to look
+at that, and I'd be happy to consider that, but again, I do
+believe that this is an important tool----
+ Mr. Scott. Okay, but----
+ Attorney General Gonzales.--in dealing with the war on
+terrorism----
+ Mr. Scott. You keep talking about terrorism, and let's
+limit it to terrorism. We already ascertained that some of
+this, no crime is even implicated because you're talking about
+foreign intelligence.
+ Let me ask you another question on the roving wiretap. We
+had some discussion when we passed that thing that you ought to
+ascertain that the target is actually in the house where the
+phone is before you start listening to it. You can put these
+taps all over the place--cell phone, home phone, pay phone on
+the street corner if they use the phones. Shouldn't we require
+that you ascertain that the target is actually the one using
+the phone before you can start listening in?
+ Attorney General Gonzales. There is no ascertainment
+requirement even in the criminal context with respect to wire
+and electronic communications. There is an ascertainment
+requirement with respect to oral communications, such as
+bugging.
+ Mr. Scott. Should we put that in the bill, that if you're
+going to wiretap a person, you ought to ascertain that it's
+actually the person you're listening to, particularly because
+it may not be his home phone? It may be his next door
+neighbor's home phone if you know he keeps using that phone.
+ Attorney General Gonzales. Well, I think that the statute
+is written in such a way that you have to have probable cause
+that, in fact, the target----
+ Mr. Scott. You've got probable----
+ Attorney General Gonzales.--is using or about to use a
+particular phone.
+ Mr. Scott. And so you should--so there is implicated an
+ascertainment requirement that you've got to ascertain that the
+target is actually in the next-door neighbor's house before you
+start listening to the next door neighbor's phone.
+ Attorney General Gonzales. It's my understanding that under
+206, you have to first identify a target and you cannot go up
+on a roving wiretap unless the target is either using or about
+to use the phone.
+ Mr. Scott. And so you wouldn't be offended with an
+ascertainment requirement.
+ On the----
+ Attorney General Gonzales. I would have to look at that,
+Mr. Scott.
+ Mr. Scott. Okay. We went to great lengths to change the law
+on foreign intelligence to suggest that you can get one of
+these warrants--it used to be if the purpose of the warrant was
+foreign intelligence, now if it's a substantial objective, not
+the primary objective. If the purpose of the warrant--of
+getting a FISA wiretap is something other than foreign
+intelligence, what is it? What are the other excuses for
+getting the FISA wiretap?
+ Attorney General Gonzales. If it's other than foreign
+intelligence?
+ Mr. Scott. Right.
+ Attorney General Gonzales. You mean----
+ Mr. Scott. The primary purpose is something other than
+foreign intelligence.
+ Attorney General Gonzales. Criminal activity.
+ Mr. Scott. You mean criminal activity without probable
+cause, without having to go through the rigamarol of getting a
+probable cause warrant?
+ Attorney General Gonzales. Mr. Scott, I would want to study
+this and get back to you on this.
+ Chairman Sensenbrenner. The time of the gentleman has
+expired.
+ The gentleman from North Carolina, Mr. Coble.
+ Mr. Coble. Thank you, Mr. Chairman.
+ General, several months ago, a constituent came to me and
+he said, ``We've got to get rid of this PATRIOT Act. It has the
+trappings of creating a crisis in this country.'' I said,
+``Well, give me an example where it has adversely affected
+you.'' He said, ``I can't do it.'' I said, ``Well, give me an
+example of where it's adversely affected anyone you know or
+anyone you've heard about.'' ``Can't do it.'' I said, ``Well,
+you're not helping me any.''
+ General, I fear this exchange between my constituent and me
+typifies widespread misunderstanding about the PATRIOT Act,
+that many people have heard how onerous and how bad it is, but
+they can't give you examples where they've been adversely
+affected. I think that applies to 213. I'm glad you mentioned
+213 because I've talked to many people who believe that delayed
+notification of a search warrant was born when the PATRIOT Act
+was enacted, and, of course, it was available long before then,
+as you pointed out. Of course, that's not subject to being
+sunsetted.
+ Let me shift gears to the library situation. Some folks
+have referred to it as the ``angry librarians' provision,'' and
+I'm not sure that's accurate. I don't know that the librarians
+are angry, but I think they're perplexed, probably, and perhaps
+because of misunderstanding, because I'm told, and I think you
+may have alluded to this this afternoon, I don't think any
+inquiries have been leveled against libraries, is that correct,
+under the PATRIOT Act?
+ Attorney General Gonzales. We have not exercised the
+authorities under section 215 for library records. Let me make
+one thing clear, because I want to be obviously forthcoming
+with the Committee. There have been library records produced to
+the FBI for purposes of a foreign intelligence investigation.
+We've gone forward to librarians. In some cases, the libraries
+have come to us concerned about the library habits of some of
+their customers and they have shared information with us
+voluntarily.
+ So I don't want to leave the Committee the impression that
+there hasn't been some exchange of library information with the
+FBI, but it is true that section 215--that authority under
+section 215 has not been used to obtain library records.
+ Mr. Coble. All right. Let me ask you this, Mr. Attorney
+General. If the information can be obtained with a grand jury
+subpoena, which it can be done, that does not require a court
+order, why would the Department of Justice want to use a FISA
+order that requires a court order and limits the type of
+information that the Department can obtain?
+ Attorney General Gonzales. It may involve a very, very
+sensitive investigation where we may not want to jeopardize the
+source or the investigation itself, and therefore, we feel more
+comfortable pursuing a 215 order rather than a grand jury
+subpoena.
+ Mr. Coble. Permit me to revisit the Mayfield case, and I
+realize there's litigation here and you're probably restricted
+as to how much you can say about that, but is it not true that
+the Attorney General is currently investigating whether or not
+PATRIOT Act authorities were abused in the case? I'm told that
+it is ongoing.
+ Attorney General Gonzales. It is and has been looked at and
+is being looked at. I don't know if that review is complete,
+yes, by the Department.
+ Mr. Coble. And finally, Mr. Attorney General, to follow up
+on Mr. Scott's questioning regarding the roving wiretaps, are
+there not two separate entities, that is to say, a roving
+wiretap for intelligence matters, on the one hand, and then a
+roving wiretap for criminal matters on the other, is that not
+correct?
+ Attorney General Gonzales. Section 206 deals with roving
+surveillance under FISA. There is authority--other authorities
+that govern the use of roving authorities in criminal matters.
+ Mr. Coble. Well, I want to reiterate what you said earlier
+about the importance of preserving our civil liberties while at
+the same token arming ourselves against would-be terrorists,
+and I, not unlike you, I believe we can do both. And I don't
+know you, Mr. Attorney General, but I like you. I like your
+style. Good to have you up here.
+ Mr. Chairman, I beat the red light.
+ Chairman Sensenbrenner. And now the other gentleman from
+North Carolina, Mr. Watt.
+ Mr. Watt. Thank you, Mr. Chairman, and first, let me
+apologize to General Gonzales for not being present to actually
+hear his testimony. Unfortunately, I have two hearings going on
+at the same time and I was trying to save CDBG and deal with
+the PATRIOT Act at the same time.
+ I got a briefing from my staff to try to avoid territory
+that had been covered by other Members of the Committee, so I
+want to zero in on one thing in which I was involved during the
+Committee's consideration of the PATRIOT Act and that's the
+Privacy and Civil Liberties Oversight Board. You're familiar
+with the provisions in the law that talk about that?
+ Attorney General Gonzales. I believe I am, Congressman.
+ Mr. Watt. Okay. All right. I'll just read, because I was
+interested to know what had transpired about the privacy
+oversight because privacy was obviously a major issue that we
+were confronting when we were trying to deal with this piece of
+legislation. So I got the Congressional Research Service to
+pull up--send us a report, and here's what it says.
+ It says the Conference Committee version of the
+intelligence reform legislation retained the mandate for a
+Privacy and Civil Liberties Oversight Board. While the board
+would have most of the review and advice responsibilities
+contained in the Senate-adopted version of the legislation, it
+would not have subpoena power, but was authorized to request
+the assistance of the Attorney General in obtaining desired
+information from persons other than Federal departments and
+agencies. Now, this is the intelligence reform bill that got
+passed and that they are giving me the update on.
+ It goes on to say that no nominations to membership
+positions on the Privacy and Civil Liberties Oversight Board
+were made in the early weeks of the 109th Congress and the
+President's fiscal year 2006 budget contained no request for
+funds for the panel.
+ Now, my question to you is, if--obviously Congress decided
+this Privacy Oversight Review Board was an important
+ingredient. You've superimposed this intelligence reform stuff
+on top of the PATRIOT Act. First of all--two questions. First
+of all, do you think it's important to have a Privacy Review
+Board----
+ Attorney General Gonzales. I think it is important that we
+review the actions of the Government to ensure that the privacy
+rights of Americans are protected.
+ Mr. Watt. Okay. Well, at least we are together at that
+point.
+ Second question, how could we extend the sunsetted
+provisions of the PATRIOT Act if the Congress having mandated--
+this says it was a mandate to create this board, and the
+President not having made any nominations to this board and not
+proposed any money to fund the operations of the board. I mean,
+it seems to me that that would be directly contrary to the
+wishes of the Congress.
+ Attorney General Gonzales. Well, I can assure you,
+Congressman, that the protection of the privacy rights and the
+civil liberties of all Americans is a priority for our
+President. I don't--not being in the White House, I don't know
+about the discussions or decisions regarding the budget. I do
+know--my latest information, it may be stale now, but my latest
+information is that the White House is in the process of
+identifying people to place on the board.
+ But in the interim, as you know, the President did sign an
+Executive Order creating a Privacy Board which----
+ Mr. Watt. No, he didn't create a Privacy Board. He created
+a Privacy Officer and he did that actually before we--the
+intelligence reform bill went through and we mandated for that
+purpose--Congress mandated for that purpose a board that was to
+be staffed, not an officer inside some department.
+ Attorney General Gonzales. Respectfully, Congressman, it is
+a board chaired by the Deputy Attorney General and includes
+representatives from various agencies----
+ Mr. Watt. All insiders.
+ Chairman Sensenbrenner. The time of the gentleman has
+expired.
+ The gentleman from Arizona, Mr. Flake?
+ Mr. Flake. Thank you, Mr. Chairman, and thank you, General
+Gonzales.
+ Let me just try to bring this to the real world for a
+minute here with a real world scenario and see if we're on the
+same page here. You may be familiar with one of the Fox News
+analysts, Andrew Napolitano, who wrote an op-ed a while ago,
+and let me just read a portion of it and get your response to
+it.
+ Quote, ``The Government can now, for the first time in
+American history, without obtaining the approval of a court,
+read a person's mail and prosecute a person on the basis of
+what is in the mail.'' Is that an accurate reflection of the
+law?
+ Attorney General Gonzales. I'm not--I don't believe it is
+an accurate reflection of the law. Again, if we're talking
+about the exercise of authorities under the PATRIOT Act, in
+most cases, it does involve the Department going to a Federal
+judge and getting permission to use those authorities.
+ Mr. Flake. I understand in most cases, but is that possible
+now for the first time in history, without obtaining the
+approval of a court, to read a person's mail and then prosecute
+the person on the basis of what is in that mail?
+ Attorney General Gonzales. That sounds to me like it would
+be a search and I think that you would need probable cause to
+do that. You would need a warrant to do that and you'd have to
+go to a Federal judge in most cases, except, I think, in very
+rare circumstances, if in the event of an emergency, but even
+then, you'd have to go to a judge after the fact and explain
+what you've done. So I don't think that what he has said is
+accurate.
+ Mr. Flake. But it would be accurate if you say in certain
+cases, you would have to go to the judge after the fact----
+ Attorney General Gonzales. But those are very rare and
+extraordinary circumstances, and so----
+ Mr. Flake. How many of those circumstances have we had?
+ Attorney General Gonzales. I'm not aware of any.
+ Mr. Flake. None?
+ Attorney General Gonzales. I'm not aware of any.
+ Mr. Flake. If there are some, could you get back to my
+office with that information?
+ Attorney General Gonzales. I can certainly look into it.
+ Mr. Flake. Thank you. I appreciate that. There's a lot of
+talk about a wall between intelligence and law enforcement that
+the PATRIOT Act helped eliminate. Is it possible that that talk
+of this wall has been exaggerated. Let me just read a statement
+from Judge Royce Lamberth and then get your reaction.
+ ``The FISA court has long approved, under controlled
+circumstances, the sharing of FISA information with criminal
+prosecutors as well as consultations between intelligence and
+criminal investigations where FISA surveillances and searches
+have been conducted.'' Is that the case? Do you dispute that
+statement?
+ Attorney General Gonzales. I think that in actual practice,
+it's been the case that law enforcement--before the PATRIOT
+Act, there was a reluctance amongst the law enforcement
+community and the Intelligence Community about sharing of
+information and that law enforcement personnel were concerned
+that if they shared too much information--if too much
+information was shared with intelligence, the Intelligence
+Community, it might jeopardize a prosecution. And so people
+were being very careful and there was a reluctance to share
+information, and I think after the PATRIOT Act, that reluctance
+has gone away.
+ Mr. Flake. So the wall was more a function of a culture
+that existed than----
+ Attorney General Gonzales. Well, there certainly was a
+culture that existed. Rightly or wrongly, I think people wanted
+to be very, very careful because people in--most people in
+Government really do--are concerned about doing the right thing
+and not doing things that in any way infringe upon the civil
+liberties of ordinary Americans. And so, you know, I certainly
+wouldn't characterize it, I mean, as a--I think people were
+just doing what they thought was the right thing to do.
+ Mr. Flake. Now they're less reluctant to infringe, or----
+ Attorney General Gonzales. Well, now they know. They've
+been given clear guidance that this is appropriate conduct and
+it is lawful conduct.
+ Mr. Flake. With regard to delayed notification, what is the
+longest period of time now that a person can be under
+surveillance without their knowledge?
+ Attorney General Gonzales. My understanding is that there
+have been six cases where the judge has said--has not imposed a
+time to provide notice that it had been an ongoing
+investigation. The judge has said, well, we'll see how the
+investigation proceeds. So there have been six such cases. You
+put those aside, I think the longest time period has been 120
+or--it's been 180 days.
+ Mr. Flake. A hundred-and-eighty-days?
+ Attorney General Gonzales. Yes.
+ Mr. Flake. But in those six cases, it's fair to assume that
+some of those investigations may still be going on or they're
+ongoing?
+ Attorney General Gonzales. I don't know. That may be, in
+fact, be the case, but I'm not sure.
+ Mr. Flake. Very quickly, before my time runs out, let me
+just be clear about the Justice Department's preference or
+position, I guess, on sunsets. I want to commend the Chairman
+for insisting on the sunset. I think to the extent that we've
+been careful and circumspect, it's largely as a result of the
+sunset provision. Are you saying that the Justice Department
+wants to do away with the sunset provision?
+ Attorney General Gonzales. I don't know whether or not the
+sunsets are necessary. I fully trust Congress to perform its
+oversight functions. I hope Congress doesn't need the sunset
+provisions in order to perform its oversight functions. The
+sunsets were put in there initially because of the fact that
+people were concerned that decisions had been reached quickly
+about the bill. We now have a history of three-and-a-half
+years, and so my view is that Congress has all the authority it
+needs to perform the oversight necessary in the way that this
+Department exercises the authorities under the PATRIOT Act.
+ Chairman Sensenbrenner. And the time of the gentleman is
+expired, and to paraphrase President Reagan, you trust and we
+verify.
+ The gentleman from Massachusetts, Mr. Delahunt.
+ Mr. Delahunt. Yes. I thank the Chairman and I welcome
+General Gonzales and I welcome your words.
+ To segue the gentleman from Arizona, Mr. Flake, you
+referenced you have confidence in Congress to exercise its
+oversight responsibilities and functions in our constitutional
+order, but I share the same concern that my colleague to my
+left, Mr. Schiff, articulated earlier to you about the lack of
+cooperation during the course of the past 4 years in terms of
+providing that information to Members of Congress so that we
+can exercise our oversight. So I would suggest that when we
+talk about sunsets, sunsets have played a very, I think,
+important role because now we seem to be engaged hopefully in a
+new way.
+ I've had my own experience. I served on the--as an adjunct,
+if you will, on the Government Reform Committee during its
+inquiry into the conduct of some individuals in the office of
+the Boston FBI and it was only under threat of subpoena that we
+were able to secure a prosecutorial memorandum that dated back
+some 40 years that had nothing in there whatsoever that could
+be interpreted to be endangering of national security.
+ So I really hope that we are moving, and I listened to your
+words and I respect those words, but I hope we're moving in a
+different direction in terms of the relationship between this
+branch, this Committee, and the Department of Justice.
+ You know, I think it's critical in a viable democracy to
+emphasize that the concerns of a citizen to their privacy are
+absolutely essential, and at the same time that as much
+transparency as possible is important in terms of the
+confidence of the American people in its Government, in the
+integrity of its Government. It's a balancing act, and I
+understand that.
+ But myself and Mr. Berman filed legislation today. He
+alluded to it earlier in his question to you about the issue of
+data mining. It's a concept that I'm sure you're familiar with
+where there's a broad search of both public and non-public
+databases without a particularized need being articulated to
+discern whether there are patterns that may implicate some sort
+of terrorist cabal. He and I, as part of a bill that, with the
+support of the Chairman, came out of Committee, didn't go
+anywhere when it got further along the legislative process, but
+that would have required each head of a Federal agency to
+report to Congress about their initiatives regarding data
+mining.
+ The American people are concerned about privacy. I would
+suggest that this is something that I hope you would review
+carefully and support if we are going to have the kind of
+relationship between the branches, and specifically this
+Committee, that you have expressed and others have expressed.
+ I don't know if you're familiar with that particular
+provision, but if you have any comments, I'd like to hear them.
+ Attorney General Gonzales. I look forward to reading your
+legislation. I can say that I, like other Americans, would be
+very concerned about this issue. I think protection of privacy
+rights are very, very important, and rather than comment any
+further, I'll read the legislation and be happy to talk to you
+about it.
+ Mr. Delahunt. I look forward to hearing from you. I'd make
+one final observation, is that, you know, when we see that
+there are 14 million new papers that have been classified, 25
+percent over the previous year according to the latest reports,
+I just want to let you know that I think many of us, and I
+think on both sides of the aisle, are very concerned about
+what's happening as far as a culture of concealment, if you
+will, and secrecy in Government that's got to be addressed.
+ Attorney General Gonzales. Thank you, Congressman.
+ Chairman Sensenbrenner. The gentleman yields back.
+ The gentleman from Virginia, Mr. Goodlatte.
+ Mr. Goodlatte. Thank you, Mr. Chairman. Thank you for
+holding this hearing.
+ General Gonzales, welcome, and thank you for the fast start
+you've gotten as our new Attorney General and thank you for
+coming to speak with us today.
+ I'd like to call your attention to a couple of other issue
+areas that very much relate to our security but are not
+directly on the PATRIOT Act. I would like to follow up on the
+topic that the gentleman from Texas, Mr. Smith, addressed
+earlier, and that is immigration. I have legislation in the
+Congress to address a problem that was identified by the State
+Department last year with regard to the Visa Diversity Program,
+or also called the Visa Lottery Program, whereby individuals
+are given not just a visitor's visa, but permanent resident
+status in the United States not based upon any particular job
+skill, not based upon having any close family relationship with
+anybody, but simply by having a little bit of information put
+into a computer. Millions of people around the world do this,
+and then 50,000 are drawn out every year, the lucky winners,
+and receive green cards to come to the United States.
+ Last year, the State Department's Inspector General
+testified before the Immigration Subcommittee that the Visa
+Lottery Program posed a significant risk that hostile
+intelligence officers and terrorists, especially those with no
+previous criminal backgrounds, could apply for the lottery and
+be awarded permanent resident status, and I wonder if the
+Department of Justice has conducted any analysis on the threat
+posed by this program. Have you or anybody else at the
+Department examined this report from the State Department?
+ Attorney General Gonzales. I'm not aware of any
+examination, Congressman, but I'd be happy to look at it. It
+sounds--it concerns me, so I'd be happy to look at it and get
+back to you.
+ Mr. Goodlatte. That would be very helpful and I would
+appreciate that.
+ Now, the other area that I'm concerned about is in the area
+of piracy, particularly intellectual property theft, which is
+increasingly viewed as being something that's being used by
+various subversive organizations, including terrorist
+organizations, as a fundraising mechanism to fund their
+operations. As author of the ``No Electronic Theft Act, or NET
+Act,'' and other legislation dealing with piracy, and as co-
+chair of the Congressional International Anti-Piracy Caucus,
+I'd like to first commend the Department of Justice for its
+work in setting up the Intellectual Property Task Force. This
+has, frankly, been long overdue.
+ For years, we've had legislation on the books to enforce
+these laws, but not enough priority was made for it. That was
+done last year. Other efforts have been made by the Department,
+as well, to combat intellectual property theft. Projects like
+Operation Fast Link is a promising example of how our
+Government can work internationally to ensure that the messages
+sent are that intelligence piracy is a serious crime, and I'm
+wondering what your intentions are as the new head of the
+Department. Is that leadership going to continue in the effort
+to investigate and prosecute these types of intellectual
+property crimes?
+ Attorney General Gonzales. Absolutely. It will remain a
+priority for the Department. In fact, I'm going out to, I
+believe, California perhaps later this month to talk about this
+issue to some of the groups out there. We realize that it
+remains a problem. It is a vehicle to finance potential
+terrorism activities and so, yes, very much so a priority. We
+continue to consider the work of the Intellectual Property Task
+Force as very, very important.
+ Mr. Goodlatte. Good. Thank you very much. The last area I'd
+like to address is the problem that we're seeing all across the
+country. It's particularly a very serious problem in my
+district. Our United States Attorney for the Western District
+of Virginia, John Brantley, briefed Senator Warner and I last
+week on the problem with methamphetamines. This seems to be a
+particularly great problem in rural areas all across the
+country. The Shenandoah Valley has been particularly hard hit.
+ It's a problem that entails being able to get hold of
+various basic household commodities and make some very
+dangerous drugs from them. I'm not sure that people realize
+that they're injecting Drano and battery acid and phosphine
+gas, some of the things that go into making methamphetamines,
+when they inject this, but it is a serious problem in rural
+areas and I'm wondering, is the Department under your
+leadership committed to meeting the increased need for law
+enforcement efforts because of the prevalence of this
+particular type of illegal drug activity in rural parts of
+America?
+ Attorney General Gonzales. Absolutely, yes. Just in my 2
+months as Attorney General, in my visits with law enforcement,
+I have been struck by how often I've been told how serious this
+problem is all across the country.
+ Chairman Sensenbrenner. The gentleman's time has expired.
+ The gentleman from New York, Mr. Weiner.
+ Mr. Weiner. Thank you, General. Welcome, and thank you for
+taking so much of your time.
+ I hope you recognize by this point in the hearings, both in
+the other body and here, what the fundamental problem is that
+you face with Congress now, is that, in essence, what the
+PATRIOT Act reflected was a desire on the part of the
+Administration of greater authority, and you essentially said
+to Members of Congress like myself, trust us that we're going
+to use it wisely, that we're going to use it with discretion,
+we're going to use it with restraint. And that is why, when you
+say, well, why do you need something like delayed notification,
+well, you have to trust us and trust the judge because,
+frankly, the individual that is being--that the search is over
+is not going to know and be able to fight to defend their own
+rights.
+ And where you've lost so many of us, including people like
+myself who have been eager, as a New Yorker and someone who
+considers himself as a moderate on law enforcement things, is
+this cloak of secrecy that has dominated the discussion over
+the last 4 years. Obviously, a rise in FISA activity and yet
+there's less information than there has perhaps ever been.
+Reports of secret arrests and detentions without charges. What
+it does is it makes us, who were happy about a sunset,
+completely unwilling to say either, first of all, extend them,
+or even further, to eliminate the sunset altogether.
+ And then you compound it with other actions in other parts
+of the Justice Department that completely run counter to real
+efforts to fight terrorism--the virtual elimination of the COPS
+program, for example. Your predecessor sat in that chair and
+said what a great program it was. The President of the United
+States praised the program, and yet the Justice Department has
+virtually eliminated it. Homeland security starts at home. Not
+in this Administration. The COPS program hiring component has
+all but been eliminated, literally taking cops off the streets.
+ So that what Members like myself and Mr. Delahunt and Mr.
+Schiff and folks on the other side of the aisle are speaking to
+is this notion that you made a compact. Give us more authority
+and entrust us to use it wisely. In order for that compact to
+be successful, in order to get us to say, okay, we agree 4
+years later that that has been the case, there has to be more
+information.
+ And what has this attitude on the part of the Justice
+Department brought? Well, it's brought on one side you saying,
+well, people are creating phantoms of lost liberty, and I think
+some on the left have said, well, there's enormous intrusions
+on our lives. Only with more full disclosure to Congress, only
+with a more full debate that goes on between you and the
+American public is this going to happen. And frankly, that
+hasn't happened.
+ You have exaggerated its value. I believe many on the left
+have exaggerated the harm it's caused. But fundamentally,
+you've lost the trust of so many in this Congress. When people
+like myself and Paul Wellstone of blessed memory vote for the
+PATRIOT Act, it is because fundamentally we believe it's
+important to make things safe and we trust those in positions
+of power to enforce it wisely, and I think you've let us down.
+ You've let us down because you've let us down in ways that
+are fundamental and easy to fix. When Congress asks for
+cooperation, as Mr. Delahunt says, your first reflex shouldn't
+be no. When there's questions about secret arrests and
+detentions, you know, frankly, if your concern is about
+reinforcing the idea that the Justice Department is operating
+prudently, talk more freely. Have a frank discussion about
+what's going on in the world. We should not wait until the day
+of a Senate hearing to find out that there are 35 instances
+that section 215 was used and 155 times that the sneak-and-peek
+provisions were used under the PATRIOT Act.
+ It is that level of information that, frankly, I think
+might have even helped your side of the argument if they had
+been released more steadily over the course of the last 4
+years. So that, I would argue, is your problem.
+ Can I ask a question? I want to make sure I understand it.
+Section 215, the sneak-and-peek provisions that have delayed
+notifications, if we were to take away those expanded rights,
+there are no searches that could not happen. It would simply be
+a question of whether or not a judge was notified first or
+whether the citizen was notified first, is that right? But both
+of those cases, you'd still be able to do the investigations?
+ Attorney General Gonzales. I don't know--you're talking
+about 213. I don't know whether or not we would be able to
+continue the investigation. The fact that we would in some
+cases have to make a hard choice whether or not to try to take
+possession of, say, contraband in order to prevent it--say
+drugs, for example--we'd have to make a hard choice between
+taking a chance and letting the drugs be distributed in order
+that we could identify all the Members of a very serious drug
+ring or take possession of the drugs and then jeopardize not
+knowing who those folks are.
+ So if 213, the authorities under 213 were eliminated, I
+think that it could jeopardize some very important
+investigations.
+ Chairman Sensenbrenner. The gentleman's time has expired.
+ And last but not least, the gentleman from Alabama, Mr.
+Bachus.
+ Mr. Bachus. Thank you.
+ Mr. Attorney General, I want to address something that you
+may not have heard too much about, but that's a 1970 explosive
+permit law. Now, that law, when Homeland Security came into
+existence and we passed a lot of the new dictates under the
+laws we're talking about reauthorizing, the ATF started
+requiring an explosive permit for anyone that worked in the
+mines that was around explosives. They asked different mine
+workers to fill out an application to continue to handle these
+explosives.
+ Now, I'll give you an example. I had three mine workers in
+my district that were taken off the job as a result of their
+applications. Now, let me tell you about one that agreed
+earlier today to let me use his name. He's Mickey Birchfield.
+He's worked 15 years in the mines. He's transported employees
+and explosives for 15 years. About a month or two ago, he
+filled out one of these applications and he listed that 17
+years ago, when he was 18 years old, he had a disorderly
+conduct misdemeanor and he said, ``I think I paid a $50 fine.''
+Well, the ATF checked and didn't find any record of this, so
+the only way they knew about it is he said, you know, ``When I
+was 18 years old, I got arrested for disorderly conduct.''
+ He has been reassigned off that job to a lower-paying job
+and he is waiting for the ATF appeal process, and I said 3
+weeks ago. It's 3 months ago, and they still haven't acted on
+that. First of all, they've taken the disorderly conduct thing
+when he was 18 and taken him off the job.
+ My question to you is, are you familiar with the ATF and
+this explosive permitting procedure that they've established,
+because I have another coal miner that actually was taken off
+the job and because they didn't have a place for him, he's
+actually unemployed now. He has actually decided to retire. But
+do you know, are there any guidelines to how long the ATF can
+hold these cases, and why--I mean, I just--could you just tell
+me maybe why, under what rationale they would----
+ Attorney General Gonzales. I wish I could, Congressman. I
+don't know. I presume that there are guidelines in place. I'd
+be happy to go back and look to see what's there and see if we
+can provide you some additional information about these cases.
+ Mr. Bachus. Yes, and you see, that's a real case that is
+happening today. The reason I bring that up is that you have
+asked for Homeland Security--you've asked for new powers, new
+tools to combat terrorism and we've given you these tools and
+we hope that there are safeguards in place that we won't have
+what I consider a civil liberty violation against this guy.
+He's actually been--his pay has been reduced. Two other
+individuals in the district, one is a result of two DUIs, one
+in 1975 and one in 1984. He's no longer permitted to work in
+the mines. As I said, he was a year and a half away from
+retirement and he was told that this process is taking over a
+year, so he just retired.
+ Attorney General Gonzales. Maybe we should have our staffs
+talk and we'll get some additional information. I'll see what
+we can find out.
+ Mr. Bachus. You know, I guess what aggravates this, when we
+hear, and you've got questions about this, when we hear that
+people that are on the Terrorist Watch List can purchase guns
+and then you get a guy that when he was 18 years old had a
+disorderly conduct thing and he can't work at his job, it
+raises all kinds of questions. And I know that what I've been
+told is the list is overly broad and it has a lot of
+inaccuracies in it, but, you know, it's being used every day
+when people try to move around this country.
+ And it's not just these. It's just one thing after another,
+like I talked to a group this week, Epileptic Foundation, and
+you'd be amazed at children with--they have these magnetic
+devices that are implanted within their body. The----
+ Chairman Sensenbrenner. The gentleman's time has expired.
+ Mr. Bachus.--what they have to go through when they go
+through screening at the airport. So they're put aside and
+sometimes 30, 40 minutes, even though they have a letter
+saying----
+ Chairman Sensenbrenner. The gentleman's time has expired.
+ The gentleman from Maryland, the late Mr. Van Hollen.
+[Laughter.]
+ Mr. Van Hollen. Thank you, Mr. Chairman, and Mr. Attorney
+General, thank you for your testimony. As one of the newest
+Members of the Committee, it's, I guess, my privilege to be one
+of the people batting clean-up at the end here, but thank you
+for your testimony.
+ I actually want to pick up on a related issue which has to
+do with the GAO report that came out recently showing that a
+number of individuals on the Terrorist Watch List were able to
+go into gun shops and legally purchase weapons in this country.
+I just want to pursue that line of questioning for a minute,
+because as I understand it right now, if you're on the
+Terrorist Watch List, you're not able to board an aircraft.
+You're able to be detained at the airport and not allowed to
+board an aircraft, is that right?
+ Attorney General Gonzales. That is correct.
+ Mr. Van Hollen. And the purpose of that, I assume, is to
+protect the public safety, is that right?
+ Attorney General Gonzales. That is correct.
+ Mr. Van Hollen. All right. Does it make sense to you that
+we stop a person from boarding the airline in order to protect
+the public safety, that individual can turn around, get in
+their car, go to the local gun shop and buy 20 semi-automatic
+assault weapons? Does that make sense to you, Mr. Attorney
+General?
+ Attorney General Gonzales. I think that we should be doing
+everything we can to ensure that people that are, in fact,
+terrorists, shouldn't have weapons in this country, the truth
+of the matter is. But unless they are disabled from having a
+weapon under the statute, there's not much that we can do,
+other than maybe trying to get them out of the country or find
+a way to see if there's any kind of disability under the
+statute that would allow us to deny them a firearm.
+ And so, again, at the end of the--I mean, we don't want
+terrorists to have firearms, but at the end of the day, we have
+to enforce the law. Unless they have a disability under the
+statute, then they're entitled to a weapon.
+ Mr. Van Hollen. No, I thank you for that and I understand
+the law is the law and we have to enforce it. My question
+really is, would you be willing to work with Congress and do
+you think it's a good idea to try and change the law where
+somebody is legitimately on the Terrorist Watch List? I
+understand there are issues with respect to that, but if
+someone is determined to have been legitimately put on the
+Terrorist Watch List, would you not agree--I'm asking whether
+you would not agree that it doesn't make sense from a public
+safety point of view to allow that person to go to the gun shop
+and buy 20 semi-automatic assault weapons.
+ Attorney General Gonzales. Well, what I can agree is that
+if you're a terrorist, you shouldn't have a weapon in this
+country, and so I do agree with you on that.
+ Mr. Van Hollen. Let me ask you this, Mr. Attorney General.
+One of the issues that is raised is the quality of the
+Terrorist Watch List.
+ Attorney General Gonzales. Right.
+ Mr. Van Hollen. What mechanism is in place today for an
+individual whose name has been put on that list to contest
+whether or not they should be legitimately put on that list?
+What do you have today to make sure that the quality of that
+list is actually good and people aren't wrongfully put on that
+list?
+ Attorney General Gonzales. That is a good question. I don't
+know the answer to that, but I'll be happy to get back to you
+on it.
+ Mr. Van Hollen. It seems to me that there's been a lot of
+discussions with respect to the fact that the quality of the
+list may not be so good and, therefore, we can't necessarily
+use that to deny people their right to go purchase a handgun,
+and that's absolutely true, but it seems to me that somebody
+who's being denied access to an airplane, if they're wrongfully
+put on that list, it should be very clear to every American
+citizen who thinks they're wrongfully put on that list what
+mechanism procedure they have to get their name off.
+ Attorney General Gonzales. I don't want the Committee to
+leave with the impression that we have a shabby Terrorist Watch
+List. Obviously, no one wants that. We all want the best list
+possible and we work very, very hard to make sure that the list
+is accurate. We get information from a variety of agencies who
+are looking at different threats. Say someone is concerned
+about terrorist financing, and so someone may end up on the
+Terrorist Watch List because of concerns about their support of
+terrorist activity--financial support of terrorist activities.
+ So I say all of that sort of defending the--I mean, there's
+been a great effort within the Administration to try to make
+the Terrorist Watch List a valuable tool and one that we can
+depend on. But it's a difficult issue and I look forward to
+working with you on possible legislation. I'd be happy to
+consider it.
+ Mr. Van Hollen. Thank you, and Mr. Chairman, if I could
+just close making two points, to the extent that we can depend
+on it and it's a valuable tool and someone is on there because
+they pose a risk to public safety, it seems to me that the
+question of whether they should be allowed to go down to the
+local gun store and buy 20 handguns or semi-automatic or
+whatever weapons it may be is one that we need to change to the
+extent that they're legitimately on there.
+ And to the extent they're not legitimately on there, I
+would very much appreciate an answer to the question about how
+an American citizen goes about getting their name off it if
+they think they're wrongfully on it. It seems to me it's
+obviously a great unfair burden for a citizen to be placed on
+the Watch List without any mechanism that is familiar to the
+public for how they go about getting their name off of it.
+ Attorney General Gonzales. I think the Watch List has been
+a valuable tool. I think it has been helpful in dealing with a
+terrorist threat. Obviously, there have been mistakes that have
+been made, but I look forward to working with you.
+ Chairman Sensenbrenner. The time of the gentleman has
+expired.
+ General, let me say that I think this was an extremely
+valuable hearing in kicking off our review of the sunsetted
+provisions of the PATRIOT Act. You have done well.
+ Attorney General Gonzales. Thank you.
+ Chairman Sensenbrenner. I hope your next invitation to come
+up here, whenever that may be, as a friendly invitation because
+these types of exchanges, I think, help clarify the issues,
+help do away with a lot of the hype that has come about as a
+result of this law in particular, and we look forward not only
+to working with you and the Department relative to this
+legislation, but also in doing oversight which makes you do
+your job better and the American public have the confidence
+that you're doing your job better.
+ Ms. Jackson Lee. Mr. Chairman----
+ Mr. Conyers. Mr. Chairman----
+ Chairman Sensenbrenner. So thank you again for coming.
+ Ms. Jackson Lee. Mr. Chairman, would you yield for a
+question?
+ Mr. Conyers. Mr. Chairman?
+ Chairman Sensenbrenner. The gentleman from Michigan.
+ Mr. Conyers. I join in that thankfulness that you were here
+and have started this routine with us. It's very important. And
+I'd like unanimous consent to add in after my opening remarks
+``Seeking the Truth from Justice'' from Laura Murphy, former
+Director of the American Civil Liberties Union.
+ Chairman Sensenbrenner. Without objection.
+ Ms. Jackson Lee. Mr. Chairman, could you yield for a
+question, please?
+ Chairman Sensenbrenner. The gentlewoman from Texas.
+ Ms. Jackson Lee. Thank you, Mr. Chairman. Will the record
+remain open or will we be able to submit questions for the
+record? I have a question about Dr. Yaha Ghoul, a thoracic
+surgeon who is in detention at this point.
+ Chairman Sensenbrenner. The record will remain open
+relative to questions relative to the general oversight of the
+USA PATRIOT Act. I don't know if the letter the gentlewoman is
+referring to relates to the USA PATRIOT Act. If so, the record
+will remain open for that purpose. But on matters related to
+other than the PATRIOT Act, I think it is best to deal with
+that issue in another context.
+ Ms. Jackson Lee. I thank the Chairman, and I'd like to
+submit for the record ``On Liberty'' by John Stuart Mill, 1859.
+I'd like to submit that into the record.
+ Chairman Sensenbrenner. I assume the copyright has expired
+on that, so without objection.
+ [The article of Mr. Mill follows in the Appendix]
+ Chairman Sensenbrenner. The Committee stands adjourned.
+ Ms. Jackson Lee. I thank the Chairman.
+ [Whereupon, at 3:27 p.m., the Subcommittee was adjourned.]
+
+
+ A P P E N D I X
+
+ ----------
+
+
+ Material Submitted for the Hearing Record
+
+ USA PATRIOT Act: Sunsets Report prepared by the
+ U.S. Department of Justice
+
+
+
+ Chapter I of On Liberty by John Stuart Mill, submitted for the Record
+ by the Honorable Sheila Jackson Lee
+
+
+
+
+
+
+