The following is a transcript of Tuesday's Senate Judiciary Committee hearing on the USA Patriot Act.
U.S. SENATE JUDICIARY COMMITTEE HOLDS A HEARING ON THE USA
APRIL 5, 2005
U.S. SENATOR ARLEN SPECTER (R-PA) CHAIRMAN
U.S. SENATOR ORRIN G. HATCH (R-UT)
U.S. SENATOR CHARLES E. GRASSLEY (R-IA)
U.S. SENATOR JON KYL (R-AZ)
U.S. SENATOR MIKE DEWINE (R-OH)
U.S. SENATOR JEFF SESSIONS (R-AL)
U.S. SENATOR LINDSEY O. GRAHAM (R-SC)
U.S. SENATOR JOHN CORNYN (R-TX)
U.S. SENATOR SAM BROWNBACK (R-KS)
U.S. SENATOR TOM COBURN (R-OK)
U.S. SENATOR PATRICK J. LEAHY (D-VT) RANKING MEMBER
U.S. SENATOR EDWARD M. KENNEDY (D-MA)
U.S. SENATOR JOSEPH R. BIDEN JR. (D-DE)
U.S. SENATOR HERBERT KOHL (D-WI)
U.S. SENATOR DIANNE FEINSTEIN (D-CA)
U.S. SENATOR RUSSELL D. FEINGOLD (D-WI)
U.S. SENATOR CHARLES E. SCHUMER (D-NY)
U.S. SENATOR RICHARD J. DURBIN (D-IL)
U.S. ATTORNEY GENERAL
SPECTER: Good morning, ladies and gentleman.
The hour of 9:30 having arrived, the Senate Judiciary Committee will now proceed to this hearing on the Patriot Act.
And the committee welcomes Attorney General Alberto Gonzales for his first appearance before this committee after his confirmation.
And similarly, we welcome FBI Director Robert Mueller to take up this very important subject.
I've had a considerable number of comments about my health, some on the way walking in this morning, so just a brief comment.
I've had about a third of the treatments. I'm doing fine. The doctor predicts a full recovery. I've been on the job. And the last two weeks during the recess I could not travel abroad and spent most of the time here in Washington on the job. The most noticeable effect has been the involuntary new hair styling and...
LEAHY: I think it looks great.
SPECTER: Well, Patrick, we're practically tied at this point.
LEAHY: I know.
SPECTER: But I am assured that within a few months I'll be back to a head of hair comparable to Attorney General Gonzales -- maybe not quite comparable, but close.
The hearing on the Patriot Act poses the very fundamental questions of security for our country with appropriate concern for constitutional and civil rights.
There is no doubt that the fundamental responsibility of government is to protect its citizens. And in the United States, with our deep tradition for civil rights and constitutional law, that concern for security has to be balanced by due regard for civil rights.
SPECTER: The report which was just issued last week by the Commission on Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction contains some very disquieting conclusions which bear directly upon the efficacy of the Patriot Act and our overall efforts at security.
Without going into the conclusions in any depth at this time, a couple point out the basic concern, where the commission reported that the clashes between the various intelligence agencies, concentrating specifically on the CIA and FBI, exist not only in regard to which agency give credit for intelligence reports, but also in the field where lives are at stake.
And the commission went on further to say, quote, 'The failure of the CIA and FBI to cooperate and share information adequately on cases could potentially create a gap in coverage of these threats, like the one on September 11th, which the attack plotters were able to exploit.'
The committee will be engaging in comprehensive oversight really on the model that the committee used on Ruby Ridge about a decade ago. And a team has already met with Director Mueller on the issue of coordination, set up where I contacted him personally. And we met with representatives of our staffs on February the 1st.
And the report in which Director Mueller gave was significantly more optimistic with respect to the coordination than has been the report of the commission last week. And that is something that we will want to consider during the course of these hearings.
But, as noted, the principal focus of the hearings in on the Patriot Act itself. And in my view, there are very, very important provisions in the Patriot Act which need to be reauthorized: not all, perhaps, but some very important provisions.
The wall separating the Foreign Intelligence Surveillance Act is down and has been very, very useful in law enforcement so that evidence obtained pursuant to a Foreign Intelligence Surveillance Act warrant can be used in a criminal proceeding.
SPECTER: The provisions on nationwide search warrants are certainly necessary. The material support for terrorists prohibition is a very important provision.
There have been questions raised by both the right and the left of the political spectrum about some of the other provisions, as we all know, with respect to the authority to seize tangible things. The illustration of that has been library books, so to speak, and we will hear from the attorney general and the director on this subject.
The question arises in my mind as to whether the traditional standards for probably cause ought not to be used in obtaining materials of that sort, concern that I expressed to Attorney General Gonzales during his confirmation hearings and I've expressed also to Director Mueller.
The issues of the so-called sneak and peek provisions, where there are five exceptions and one of the exceptions is so broad that it could be a cover-all to not have a limit of time as to when the subject of the sneak and peek is informed. That is something which we will take a look at.
And the roving wiretaps provision is also in subject to a certain challenge as to the identity of the person, whether description is sufficient and how many technical means can be used to obtain.
Those are all issues which we will look into during the course of this hearing.
We have asked the attorney general and director to limit their opening remarks to 10 minutes, with their full statements made a part of the record. We will work through until 1 o'clock or a convenient break point about that time. And the attorney general and the director have already been asked to be available in the afternoon because I think we will have a large attendance at this session.
With questions, we will have seven-minute rounds of questions, and I'm right up to seven minutes now and I want to yield at this point to my distinguished ranking member, Senator Leahy.
LEAHY: Well, thank you very much, Mr. Chairman.
And I do feel this is an extremely important meeting. It is good to have oversight.
I was delighted also to hear your comments about going back to the kind of oversight we did with Ruby Ridge. I agree with you that that was an example of how oversight can and should be done, and we should go back to that.
On a September morning, as we all know, three and a half years ago nearly 3,000 lives were lost on American soil. Our lives -- our lives as Americans changed instantly.
In the aftermath of the 9/11 attacks, Congress moved quickly -- some have said too quickly -- to give federal authorities substantial new powers to investigate and prosecute terrorism. The USA Patriot Act was signed into law just six weeks later.
And some of us sitting here today contributed to the Patriot Act. We worked together in a bipartisan manner, with common resolve to craft a bill that we hoped would make us safe as a nation.
Freedom and security are always at tension in our society. We tried our best to strike the right balance.
Now it's time to return to discussion (inaudible) what aspects we got right and what modifications need to be made.
I negotiated many of the provisions of the Patriot Act. I'm gratified to have been able to add several checks and balances that were not in the initial proposal.
The White House broke its word on some agreements we mutually reached to strike a better balance on some of the Patriot Act's provisions.
But it's also true that additional checks and balances that I and others sought had the White House agree to them would have yielded the same benefits to our law enforcement efforts and would allow greater accountability.
In the final negotiating session, former House Majority Leader Dick Armey and I joined together to insist we had a sunset for certain governmental powers that have great potential to affect the civil liberties of the American people.
That's why we're here today, because that sunset provision ensured that we would revisit the Patriot Act and shine some sunlight on how it's been implemented.
And before we rush to renew any controversial powers created by the Patriot Act, we need to understand how these powers have been used and whether they've been effective.
A few weeks ago, we celebrated the first national sunshine week with a hearing on open government and bipartisan calls for accountability. We should do the same in our oversight.
We should bear in mind the 9/11 Commission's counsel about the Patriot Act. They wrote: 'The burden of proof for retaining a particular governmental power should be on the executive to explain, A, that the power actually materially enhances security and, B, that there's adequate supervision of the executive's use of the powers to ensure protection of civil liberties.'
We're in a new Congress with a new chairman of this committee. Chairman Specter has a distinguished record as a steadfast advocate and practitioner of meaningful oversight -- of meaningful oversight.
LEAHY: We have before us a new attorney generally who's pledged to work with us on a number of issues, including the Patriot Act.
The American people deserve to be represented by a Congress that takes its oversight responsibilities seriously.
The breakdown of cooperation following the passage of the Patriot Act has fostered distrust. We can change that by working together to achieve the right balance in our anti-terrorism act by allowing the appropriate amount of sunshine to light what we're doing.
We have heard over and over again, there have been no abuses as the result of the Patriot Act. But it's been difficult, if not impossible, to verify that claim when some of the most controversial surveillance powers in the act operate under a cloak of secrecy.
We know the government uses the surveillance powers of the Foreign Intelligence Surveillance Act more than ever. But everything else about FISA is secret.
And the difficulty of assessing the impact of the civil liberties has been exacerbated greatly by the administration's destruction of legitimate oversight.
Now, whether or not there have been abuses under the Patriot Act, the unchecked growth of secret surveillance powers and technologies, with no real oversight by the Congress or the courts, has resulted in clear abuses by the executive branch.
We've seen secret arrests and secret hearings of hundreds of people for the first time in U.S. history. Detentions without charges and denial of access to counsel, misapplication of the material witness statute as a sort of general prevention detention law, discriminatory targets (inaudible) Muslims, selective enforcement of the immigration laws, and documented mistreatment of aliens held on immigration charges.
These abuses harm our national security as well as civil liberties. They serve as recruiting posters for terrorists, intimidate American communities who cooperate with law enforcement agencies. When they misuse limited anti-terrorism resources, they make it real likely real terrorists are going to escape detection.
Beyond this, the administration used brutal and degrading interrogation techniques against detainees in Afghanistan, Iraq and Guantanamo Bay. Those run counter to past American military traditions.
And information about these disgraceful acts continue to trickle out in large part only because of a persistent press and the use of FOIA, not by the oversight this Congress should do.
LEAHY: In yet another example of abuse, recent press reports provide disturbing details about how the administration embraced the use of extraordinary rendition after the 9/11 attacks. Several press reports detail the CIA's use of jets to secretly transmit detainees to places around the world where they were going to be tortured.
In defending the administration's rendition policy, the president said, in his March 17th press conference, 'We seek assurances that nobody will be tortured when we render a person back to their home country.'
That statement came only 10 days after Attorney General Gonzales acknowledged that we can't fully control what happens to detainees transferred to other nations. He added he did not know whether these countries have always complied with their promises.
There's always going to be scandals and tragedies in a nation's history. What makes America special is that we do not hide from our mistakes. We investigate them. We learn from them. We make sure they don't happen again. When necessary we change our laws to reflect the lessons we have learned.
The spirit of openness and accountability is what brings us here today to reconsider portions of the Patriot Act.
So, Mr. Chairman, I applaud you for doing this. The kind of oversight that you have is similar to what you did at Ruby Ridge. We're going to be doing far, far better for the country, for the committee and for the Senate.
SPECTER: Thank you very much, Senator Leahy.
Attorney General Gonzales and Director Mueller, would you rise, please?
Do each of you solemnly swear that the testimony you will present before the Senate Judiciary Committee will be the truth, the whole truth and nothing but the truth, so help you God?
Attorney General Gonzales, we again welcome you here for the first of the oversight hearings. We note some of your recent comments showing some willingness to consider some modifications. They've been described in the media as technical. But we welcome that approach. And we look forward to your testimony.
The floor is yours.
GONZALES: Thank you, Mr. Chairman.
Chairman Specter, Senator Leahy and members of the committee, I'm pleased to be here with Director Mueller to discuss an issue relating to the security of the American people.
GONZALES: Following the attacks of September 11, 2001, the administration and Congress did come together to prevent such a tragedy from happening again. One result of our collaboration was the USA Patriot Act, which was passed by Congress with overwhelming bipartisan support.
Since then, the act has been integral to the government's prosecution of the war on terrorism. And thanks in part to the act, we have dismantled terrorist cells, disrupted terrorist plots and captured terrorists before they could strike.
Many of the most important authorities in the act are scheduled to expire on December 31, 2005. It is important that these authorities remain available, in my judgment.
Al Qaida and other terrorist groups still pose a grave threat to the security of the American people, and now is not the time to relinquish some of our most effective tools in this fight.
As Congress considers whether to renew these provisions, I am open to suggestions for clarifying and strengthening the act, and I look forward to meeting with those both inside and outside of Congress who've expressed concerns about the act.
But let me be clear that I will not support any proposal that would undermine our ability to combat terrorism effectively.
All of us have the same objective: ensuring the security of the American people while preserving our civil liberties.
I therefore hope that we will consider reauthorization in a calm and thoughtful manner. Our dialogue should be based on facts rather than exaggeration.
Because I believe that this discussion must be conducted in an open and honest fashion, I will begin my testimony today by presenting this committee with new information recently declassified about the use of certain Patriot Act provisions.
Of the 16 provisions scheduled to sunset, some members of this committee have raised the most concern about Sections 206 and 215.
Section 215 granted national security investigators authority to seek a court order requiring the production of records relevant to their investigation.
Just as prosecutors use grand jury subpoenas as the building blocks of criminal investigations, investigators in international terrorism and espionage cases must have the ability, with appropriate safeguards, to request production of evidence that can be essential to the success of an intelligence investigation.
To be clear, a Section 215 order, like a subpoena, does not authorize government investigators to enter anyone's home or search anyone's property. It is merely a request for information.
A federal judge must approve every request for records under Section 215. And the FISA court has granted the department's request for a 215 order 35 times as of March 30, 2005.
Although prosecutors have long been able to obtain library records in connection with a criminal investigation, I recognize that Section 215 may be the act's most controversial provision principally because of the fears concerning the theoretical use of the provision to obtain library records.
GONZALES: However, I can report the department has not sought a Section 215 order to obtain library or bookstore records, medical records or gun sale records.
Rather, the provision to date has been used only to obtain driver's license records, public accommodation records, apartment leasing records, credit card records and subscriber information, such as names and addresses for telephone numbers captured through court- authorized pen register devices.
Going forward, the department anticipates that the 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 had been based on inaccurate fears about its use, other criticisms have apparently been based on possible ambiguity in the law.
The department has already stated in litigation that the recipient of a Section 215 order may consult with his attorney and may challenge that order in court.
The department has also stated that the government may seek and a court may require only the production of records that are relevant to a national security investigation, a standard similar to the relevance standard that applies 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 relevance standard under Section 215 to probable cause. According to our lawyers and agents, raising the standard would render Section 215 a dead letter.
As we all know, probable cause is a standard that law enforcement must meet to justify an arrest. It should not be applied to preliminary investigative tools such as grand jury subpoenas or Section 215 orders, which are used to determine whether more intrusive investigative techniques requiring probable cause, such as electronic surveillance, are justified.
Section 206 also provides terrorism investigators with an authority long possessed by criminal investigators. In 1986, Congress authorized the use of multi-point or roving wiretaps in criminal investigations. Before the Patriot Act, however, these orders were not available for national security investigation under FISA.
Therefore, when international terrorists or spies switch telephones, investigators had to return to the FISA court for a new surveillance order and risk missing key conversations.
GONZALES: In a post-9/11 world, we cannot take that risk.
Section 206 fixed this problem by authorizing multi-point surveillance of an international terrorist or spy when a judge finds the target may take action to thwart surveillance.
As of March 30th, this provision had been used 49 times and has been effective in monitoring international terrorists and spies.
Another important FISA-related Patriot Act revision is Section 207. Prior to the act, the Justice Department invested considerable time returning to court to renew existing orders granted by the FISA court.
Section 207 substantially reduces investment of time by increasing the maximum time duration for FISA electronic surveillance and physical search orders.
The department estimates that Section 207 has saved nearly 60,000 attorney hours. In other words, it has saved 30 lawyers a year's work, and this estimate does not account for time saved by FBI agents, administrative staff and the judiciary. Department personnel were able to spend that time pursuing other investigations and oversight matters.
Given Section 207's success, I am today proposing additional amendments to increase the efficiency of the FISA process, copies of which will be presented to this committee today. 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 the amendments would allow the department both to focus their attention where it is most needed and to maintain the current level of oversight paid to cases implicating the civil liberties of Americans.
Finally, I would like to touch on another provision that has generated significant discussion. Section 213, which is not scheduled to sunset, is to establish a nationwide standard for issuing delayed- notice search warrants, which have been used by law enforcement in criminal investigations and approved by courts for decades, as we all know.
Under Section 213, law enforcement must always -- always provide notice to a person whose property is searched. A judge may allow that notice to be temporarily delayed in a few circumstances, but that person will always receive notification.
GONZALES: The department uses this tool only when necessary.
For instance, from the enactment of the Patriot Act through January 31, 2005, the department used Section 213 to request approximately 155 delayed-notice search warrants, which had been issued in terrorism, drugs, murder and other criminal investigations.
We estimate this number represents less than one-fifth of 1 percent of all search warrants by the department during this time. In other words, in more that 499 of 500 cases, the department provides immediate notice of a search.
In appropriate cases, however, delayed-notice search warrants are necessary, because if terrorists or other criminals are prematurely tipped off that they're under investigation, they may destroy evidence, harm witnesses or flee prosecution.
I hope that the information I have presented will demystify these essential national security tools, eliminate some of the confusion surrounding their use, and enrich the debate about the department's counterterrorism efforts.
The tools I've discussed today are critical, in my judgment, to our nation's success in the war against terrorism.
I am therefore committed to providing the information that this committee and the American public need to thoroughly evaluate the Patriot Act. The act has a proven record of success in protecting the security of the American people, and we cannot afford to allow its most important provisions to sunset.
I look forward to working with the committee closely in the weeks ahead, listening to your concerns and joining together again to protect the security of the American people.
Thank you, Mr. Chairman.
SPECTER: Thank you very much, Attorney General Gonzales.
LEAHY: Mr. Chairman?
SPECTER: Senator Leahy?
LEAHY: I just would ask consent that the attorney general's submitted testimony, which we all received, and the testimony he actually delivered here today both be in the record because there are some substantial differences.
SPECTER: Without objection, the written testimony submitted will be made a part of the record. I think I noted that earlier but, in any event, they will be made a part of the record.
We now turn to the director of the FBI.
We welcome you, again, Director Mueller. Thank you for your courtesies in the recent meeting which you and I had with our respective staffs and we will be pursuing that, among other matters.
And now we look forward to your testimony.
MUELLER: Thank you. And good morning, Mr. Chairman.
Good morning, Senator Leahy and members of the committee.
I am pleased to be here today with the attorney general to talk about the Patriot Act and how it has assisted the FBI with its efforts on the war on terror.
The Patriot Act has, indeed, changed the way we in the FBI operate and it has assisted us in many ways in our counterterrorism successes.
My formal statement was submitted for the record, and it focuses primarily on the 16 provisions that are scheduled to sunset at the end of this year.
While I firmly believe it is very important to our national security that these provisions be renewed, I want to emphasize this morning the importance of the information-sharing provisions to the war on terror.
Mr. Chairman, the information-sharing provisions are consistently identified by FBI field offices as the most important provisions in the Patriot Act. The ability to share crucial information has significantly altered the landscape for conducting terrorism investigations, allowing for a more coordinated and effective approach.
Specifically, our field offices note that these provisions enable case agents to involve other agencies in investigations, resulting in a style of teamwork that, first of all, enables us to be more effective and responsive in our investigative efforts, improves the utilization of our resources, allows for follow-up investigations by other agencies -- for instance, when the subject of the investigation leaves the United States -- and it also helps prevent the compromise of foreign intelligence investigations.
Even though the law, prior to the Patriot Act, provided for some exchange of information, the law was complex and, as a result, agents often erred on the side of caution and refrained from sharing information.
The Patriot Act's information-sharing provisions, Sections 203 and 218, eliminated that hesitation and allows agents to more openly work with other government entities, resulting in a much stronger team approach.
MUELLER: This approach is necessary in order to effectively prevent and detect the complex web of terrorist activity.
FBI field offices report enhanced liaison with state, local, tribal and, as important, other federal agencies, including the intelligence agencies across the country. And our legal attache offices overseas report improved relationships with other intelligence agencies operating overseas.
Prior to the Patriot Act, federal law was interpreted to prohibit criminal investigators from disclosing criminal wiretap or grand jury information to counterparts working on intelligence investigations.
Sections 203A and B of the Patriot Act eliminated these barriers to information sharing, allowing for routine sharing of information derived from these important criminal tools.
Section 203D ensures that information developed through law enforcement methods other than grand jury testimony or criminal wiretaps can also be shared with intelligence partners at the federal, state and local levels as well as with our partners overseas.
Section 218 of the Patriot Act was the first step in dismantling the wall between criminal and intelligence investigators. It eliminates the primary purpose requirement under FISA and replaces it with a significant purpose test.
FBI agents working on intelligence and counterintelligence matters now have greater latitude to consult criminal investigators or prosecutors without putting their investigations at risk.
Prosecutors are now involved at the earliest stages of international terrorism investigations. And prosecutors are often co- located with the joint terrorism task forces and are able to provide immediate input regarding the use of criminal charges to stop terrorist activity, including the prevention of terrorist attacks.
Mr. Chairman, if these information-sharing provisions are allowed to sunset, the element of uncertainty and confusion that existed in the past will be reintroduced. Agents will again hesitate and spend precious time seeking clarification of complicated information-sharing restrictions.
This hesitation will lead to less team work, less efficiency and ultimately loss of effectiveness in the war on terror.
MUELLER: Experience has taught the FBI that there are no clear dividing lines that distinguish criminal, terrorist and foreign intelligence activity. Criminal, terrorist and foreign intelligence organizations and their activities are often inter-related or interdependent.
FBI files contain many examples of investigations where information sharing between counterterrorism, counterintelligence and criminal intelligence investigations was essential to our ability to protect the United States from terrorists, foreign intelligence activity and criminal activity.
For example, the FBI investigated a group of Pakistan-based individuals who were participating in arms trafficking, the production and distribution of multi-ton quantities of hashish and heroin, and participating in the discussion of an exchange of a large quantity of drugs for four Stinger anti-aircraft missiles to be used by Al Qaida in Afghanistan.
The operation, thanks to the ability to share information, resulted in the arrest, indictment and subsequent extradition of the subjects from Hong Kong to San Diego to face charges of providing material support for Al Qaida, as well as charges relating to their drug activities.
In yet another example, in the aftermath of September 11th, a reliable intelligence source identified a naturalized United States citizen from the Middle East as being a leader among a group of Islamic extremists operating in the United States. The subject's extremist views, affiliations with other terrorist subjects and heavy involvement in the stock market increased the potential that he was a possible financier and material supporter of terrorist activities.
Early in the criminal investigation it was confirmed that the subject had developed a complex scheme to defraud multiple brokerage firms of large amounts of money.
MUELLER: The close interaction between the criminal and intelligence cases was critical to the successful arrest of the subject before he was able to leave the country, and it ultimately resulted in his guilty plea to criminal charges.
Increased coordination and information sharing between intelligence and law enforcement agents facilitated by the Patriot Act has allowed the FBI to approach cases such as these as a single integrated investigation that allows us to see the full picture not separate pieces of a criminal case, separate pieces of an intelligence case, separate pieces of information.
It allows us to work together to successfully bring together various pieces of information regardless of whether it's in the field of counterintelligence, terrorism or criminal, and enables us to depend on that free flow of information between respective investigations, investigators and analysts to successfully perform our responsibilities.
Mr. Chairman, critics of the Patriot Act's information-sharing provisions have suggested that they lack sufficient safeguards or that they can be used to circumvent constitutional safeguards by conducting a search or a wiretap for the purpose of investigating a crime without demonstrating probable cause that a crime has been committed.
These concerns ignore the considerable safeguards and limitations that are firmly in place.
With respect to changes in the wiretap statute, Section 203B only allows for the sharing of a certain limited class of information gathered under Title III, such as information relating to a serious national security matter. In addition, the Title III statute imposes substantial burdens on law enforcement and judicial approval prior to initiation of the wiretap.
Section 203B does not reduce these requirements. It simply permits the appropriate sharing of information after it is collected under court order.
Mr. Chairman and members of the committee, the provisions of the Patriot Act that I have discussed today are crucial to our present and future successes in the global war on terrorism.
MUELLER: By responsibly using the statute provided by Congress, the FBI has made substantial progress in our ability to proactively investigate and prevent terrorism and to protect lives, while at the same time, and as important, protecting civil liberties.
In renewing these provisions scheduled to sunset at then end of this year, Congress will ensure that the FBI will continue to have the tools we need to combat the very real threat to America posed by terrorists and their supporters.
Mr. Chairman, thank you again for the opportunity to appear before you today. And I, too, am happy to answer any questions you might have.
SPECTER: Thank you very much, Director Mueller.
We'll now proceed with the seven-minute rounds in order of arrival, which is the custom of the committee.
Attorney General Gonzales, I'm pleased to see some of the modifications which you have suggested would be acceptable to the Department Justice with recipient may consult an attorney, the recipient may challenge in court and only documents relevant to national security investigations would be involved.
I note that on the information provided by the Department of Justice, there's not been a request under the tangible things category for library or medical records. That has been an area of substantial concern to some.
Would you see any problem on specifically excluding in a reauthorization of the Patriot Act authority to obtain library or medical records?
GONZALES: Mr. Chairman, let me, kind of, reassure the committee and the American people that the department has no interest in rummaging through the library records or the medical records of Americans.
GONZALES: That is not something that we have an interest in.
SPECTER: Does that mean you'd agree to excluding them?
GONZALES: We do have an interest, however, in records that may help us capture terrorists. And there may be an occasion where having the tools of 215 to access this kind of information may be very helpful to the department in dealing with the terrorist threat.
The fact that this authority has not been used for these kinds of records means that the department, in my judgment, has acted judiciously. It should not be held against us that we've exercised, in my judgment, restraint.
It's comparable to a police officer who carries a gun for 15 years and never draws it. Does that mean that for the next five years he should not have that weapon, because he's never used it?
SPECTER: Attorney General Gonzales, I don't think your analogy is apt, but if you want to retain those records, as your position I understand. And let me move on.
The staff of the Judiciary Committee was briefed by the Department of Justice last month, and we were advised that it takes an average of 71 days to obtain a warrant under the Foreign Intelligence Surveillance Act. Does that sound right to you?
GONZALES: Sir, I do not know whether or not that is an accurate number. Perhaps Director Mueller might have more information about that.
SPECTER: Well, would you check on that, because...
GONZALES: I will check on that.
SPECTER: ... if it is true -- and I notice Director Mueller's forehead furrowing a bit on that -- it would certainly be very stale on the kind of information that a law enforcement officer would need.
We've seen on oversight from this committee before, going back to Wen Ho Lee, enormous problems in the Department of Justice on approval of warrants under the Foreign Intelligence Surveillance Act. And we've had some concerns with the FBI standard which we got into back in June of 2002, but with Director Mueller.
And that is a very vital weapon in the arsenal. And the committee would like to know how long it takes and to be assured that you're really on top of that issue.
Director Mueller, on the so-called sneak-and-peek warrants, we have been provided with information just yesterday on some of the statistical data on the number of times these warrants were used.
SPECTER: Sneak-and-peek means, for those who don't know, that there's no immediate notification given to the subject who's been the recipient of the secret search. And there are some 92 instances where the catch-all category of, quote, 'seriously jeopardizing an investigation,' closed quote, was relied upon.
But there are in the statute a number of specific justifications for the delay: endangering life or physical safety, flight from prosecution, destruction or tampering with evidence, intimidation of a potential witness.
The broad catch-all of 'seriously jeopardizing an investigation' is so broad that there are justifiable concerns that it can include practically anything.
Could that category be eliminated? Or could you look to the situations where you have used that catch-all to be specific and have specific items such as the first four, which give definable parameters to this delayed notification?
MUELLER: Mr. Chairman, I don't believe that we would be well served by eliminating that provision.
There are a number of circumstances that do not fit easily into the first four. An example is a recent case we had in which there was a -- it was a drug-smuggling operation from Canada in which individuals were bringing in a substantial amount of ecstasy from Canada.
MUELLER: The DEA had information that this ecstasy was coming from Canada. They quite clearly did not want it on the streets, but they did not know all of the information as to whom it was to be distributed.
When these distributors came into the United States, they stopped at a restaurant. And as they stopped at the restaurant and ate their meals, the agents, pursuant to a warrant, were able to enter the car, pull out the ecstasy, so it would never reach the street, strew glass around, indicating that the car had been broken into. And the individuals came back on their way.
And that ability to delay notification of that entry into the car allowed us to arrest 103, I think -- somewhere over 100 persons who were involved in that conspiracy.
Now, the delay there was for less than 30 days, and it was pursuant to a court order.
The only other point I would make, Mr. Chairman, is that, I think to characterize it as sneak-and-peek is wrong. It is a delayed notification. It is delayed notification that is pursuant to an order of the court.
SPECTER: Director Mueller, let me interrupt you to ask you to give us specific illustrations. I like to be fact-specific, and the one you gave is impressive, and we'd like more of them.
We were provided information that one period was 180 days, and we want to get into the specifics of that.
But I've only one second left, and I will conclude and yield now to Senator Leahy.
LEAHY: Thank you, Mr. Chairman.
I mentioned in my opening statement that the 9/11 Commission's report stated, with regard to extending the Patriot Act provisions, quote, 'The burden of proof for retaining a particular governmental power should be on the executive,' close quote.
Mr. Attorney General, would you agree that whenever possible the government should make its case in public, not in a classified report?
GONZALES: Certainly, I believe that to be the case, Senator Leahy, that we have a responsibility to inform not just the Congress, but the American people about the actions of its government.
LEAHY: I agree with you there.
I noted that when Attorney General Ashcroft resigned, in his speech he said, 'The objective of securing the safety of Americans from crime and terror has been achieved.'
LEAHY: If we take that too literally we don't need you, we don't need Director Mueller, we don't need police officers standing around this place.
I know that you feel there's much work that still has to be done. I hope you'll take a different tack than your predecessor and you'll cooperate with this committee as we consider how to improve upon and adjust the balances -- after 9/11, the balances in the Patriot Act.
I believe that many of us will be willing to consider renewing some of the provisions that are subject to sunset. But you've got to have a sense of trust because of accountability from the department first.
I would like to see more and more regular reporting. Part of the difficulty with conducting oversight is the length of time it takes to get any information. Reports that are required by statute to be filed are months late or we never get them at all.
For example, the Patriot Act required a report on the FBI's translator program. That report wasn't submitted until late December 2004.
Last fall, we directed the FBI to issue a broader set of data by date certain, September 14, 2005. It was submitted on the 1st of April, April Fool's Day, over two months late.
The department's also been slow in responding to questions. Late last Friday, we finally received answers to questions submitted to Director Mueller a year ago, last May. We also received answers to questions we submitted to Deputy Attorney General Comey after the Patriot Act hearing.
These are the reports and the outstanding hearings from written questions and answers that were submitted between Friday, the 1st of April, and yesterday.
LEAHY: I mention that because I don't think we would even have all these -- I mean, they come in at the last second, but they come in because we're having this hearing. If the chairman hadn't scheduled it, I doubt if we would have had this. You know, some of them are over a year old.
And then sometimes it's hard to figure out how what we do with them.
Look at these charts over here.
In response to a FOIA request over the past six months, the FBI has released the same e-mail but in three different versions. The first version was released in response to the FOIA lawsuit on October 15th, 2004. It's almost entirely redacted.
So then you come a month later -- second version, in response to the FOIA suit, has fewer redactions. It's still difficult to decipher.
Third version was released the following year after Senator Levin requested it in redacted form.
Now, are the decisions of redacting made by the FBI or the Department of Justice? Because obviously three different decisions were made here on the exact same document.
GONZALES: Can I first respond to your earlier point about being responsive to congressional requests for information?
LEAHY: I'm complimenting you on getting these things in. They're a year late, but they're here.
GONZALES: The good news is you do have an answer; the bad news is, is that it did take us too long to respond. And I've had discussions with members of my staff to advise them that we need to do better.
I understand that you need information to properly exercise your oversight role, and I am committing to you that we are going to do better. We have a new process in place so that we can respond in a more timely fashion.
But in defense of the department, I'm also aware that there have been extraordinary demands made by this committee for information; obviously within your right. But we want to be as careful and we want to be as forthright as possible, and it has taken us a great deal of time...
LEAHY: But how with such a short period of time could you have three such varying differences on this? I mean, who's making these decisions? Is it the Department of Justice or is it the FBI?
GONZALES: I don't know specifically about these e-mails. I'd be happy to look at them specifically and give you an answer.
GONZALES: But generally, of course, decisions made about how to respond to FOIA litigation, there are exemptions within FOIA which would allow the withholding of certain information.
LEAHY: I helped write a lot of that FOIA legislation. I understand it.
And the reason I picked this particular one is talking about the chorus of techniques the Defense Department's interrogations. It's interesting what was held out until a member of Congress really brought pressure.
It said the results obtained from these interrogations were suspect at best -- 'suspect at best' was the part being kept out. Why was that initially kept out?
GONZALES: Senator Leahy, I really would like to study the e-mail and talk to the people involved in making that decision before answering that question.
LEAHY: But will you answer the question?
GONZALES: Once I am prepared to have -- once I have the information and feel that I could respond, give you some kind of answer, I'm happy to do that.
LEAHY: You know Article III of the Convention Against Torture states that, 'No state party shall expel, return or extradite a person to another state where there are substantial grounds for believing they'd be in danger of being subjected to torture.'
Now, we're part of that treaty. Do you think that the assurances we get from countries that are known to be torturers, when they say, 'Well, we won't torture this person you're sending back' -- do you really think those assurances are credible?
GONZALES: I think, Senator, that's a difficult question that requires, sort of, a case-by-case analysis.
We have an obligation not to render people to other countries when we believe it's more likely than not that they will be tortured. The president said we don't engage in torture, we don't condone torture, and we're not going to render people to countries where we think it's more likely than not that they're going to be tortured.
LEAHY: Well, my time's up. I'll come back to that, because we do render them to countries that are known to be torturers.
SPECTER: Thank you very much, Senator Leahy.
Senator Kyl has had to leave to go to a leadership meeting, and he will be submitting a number of questions for the record.
I turn now to our distinguished former chairman, Senator Hatch.
HATCH: Well, we welcome both of you to the committee.
Of course, the reason we wrote the Patriot Act to begin with was to provide law enforcement the tools that it needs that it did not have in international terrorist situations.
HATCH: And many of these tools we already had with regard to the Mafia and other types of criminal activity. And so it was updated to bring the powers of our law enforcement people up to speed so that you could really go after international terrorists, and domestic terrorists as well.
By the way, as I understand it, there's a 72-hour emergency time in which you can apply for a FISA warrant, and get it, if it's an emergency. Just so everybody understands that.
Now, much has been said and much more will be said about the effect of the Patriot Act on civil liberties. This is an important debate. But it is a debate that has to be guided by the facts. And the fact is that the critics of the Patriot Act are hard-pressed to provide documentation of any systemic abuse of the Patriot Act by the Department of Justice, the FBI or any other governmental agency.
In fact, they're hard-pressed to provide any documented abuses of the Patriot Act. We held, I think, some 24 hearings on this issue, and not one time have they been able to document an abuse.
And whenever a relatively new and complex law like the Patriot Act is implemented by tens of thousands of law enforcement officials, there's always a chance for some mistakes, even serious mistakes, to be made.
And I think we need to be vigilant so that we minimize the overzealous or improper uses of the Patriot Act. If we can improve this legislation, we ought to do so.
And I've been particularly heartened by you, General Gonzales, and by you as well, Director Mueller, that you're willing to look at some changes in the legislation that would tighten it up and make it better.
Now, in both of your prepared testimonies you note that Section 223 of the Patriot Act allows individuals aggrieved by any willful violation of the criminal wiretap statute or certain provisions of the FISA statute to file an action in federal district court to recover not less than $10,000 in damages.
Moreover, Section 223 also requires the department to commence a proceeding to determine whether a disciplinary action is warranted against any federal employee found to have violated the wiretap statute.
Now, the testimony of the attorney general states, quote, 'To date, there have been no administrative disciplinary proceedings or civil actions initiated under Section 223 of the U.S. Patriot Act,' unquote.
HATCH: Now, first, I want to make sure that I am correct in understanding that no actions have been brought, let alone have been successfully brought, under Section 223 in the three and a half years since the Patriot Act has been on the books. Am I correct in arriving at that conclusion from your comments and your statements?
GONZALES: Your understanding is correct, sir.
HATCH: Second, what do you think this record shows about how seriously the department and the bureau take their responsibilities to protect civil liberties if they engage in activities to identify and prevent terror attacks?
GONZALES: Senator, I think that record indicates that we've tried to be careful in the exercise of these authorities.
I think it also reflects the fact that I think Congress did a good job in drafting the Patriot Act and including appropriate safeguards. We take those safeguards very, very carefully. We think they're very, very important, a critical part of the Patriot Act.
So I think that that is also reflected in this record.
HATCH: Finally, going beyond the absence of cases found under Section 223, can you tell the committee whether you are aware of any documented cases of abuse of any provision of the Patriot Act?
GONZALES: I'm not aware of any documented case of abuse. I am aware that an organization yesterday -- we received a copy of a letter to Senator Feinstein relating to alleged abuses under the Patriot Act.
GONZALES: It's a very lengthy letter. Obviously, we want to look at it very carefully in response to it.
But based upon our cursory review last night, it appears that all the allegations in that letter do not sustain the fact that there has been an abuse of the Patriot Act or don't even relate to the Patriot Act.
But, again, I want an opportunity to study the letter carefully and prepare an appropriate response.
HATCH: That's been my experience that most of the criticisms are at law enforcement, not at provisions in the Patriot Act; they really don't apply. And a lot of hysteria that has come from allegedly the Patriot Act violations really don't amount to anything and really cannot be justified.
And I know that Senator Specter will be holding a hearing in a few weeks during which several critics of the Patriot Act will have the opportunity to testify about their concerns. So we're looking forward to that and see what happens.
It will be helpful to the committee if you would look into and provide us with a response to any specific charges of Patriot Act abuses that might be made at that hearing. And so I'd like you to pay attention to that hearing and tell us as soon as you can about those particular abuses.
Can we count on you to do that in a prompt manner?
GONZALES: You can count on that.
Now, Director Mueller, I think I have just enough time to ask this question.
Your written testimony closes by making a plea for administrative subpoena authority in terrorist investigations. You note the bureau has this authority in drug, health care fraud and child exploitation cases among others, just to mention cases where there are not terrorist-involved. You also note that such a subpoena would be subject to challenge before the courts, much like grand jury subpoenas may be challenged.
And your testimony states, 'In investigations where there's a need to obtain information expeditiously, Section 215, which does not contain an emergency provision, may not be the most effective process to undertake,' end quote.
Now, let me ask you and the attorney general two questions about this statement.
First, are you aware of any instances when a judge who is not available to act in a timely manner on a terrorism-related investigation? In other words, in short, is anything broken?
And second, if it is, in fact, broken, it might potentially be a problem in the future. Why would an administration subpoena provision be a preferable fix to writing an emergency judicial review provision into the statute? And why would it be better to have a neutral magistrate be involved before the subpoena or warrant was issued if a suitable emergency review provision were crafted if such a provision is needed at all?
MUELLER: Let me respond, if I could, Senator.
MUELLER: Often we get information relating to threats, and we need to immediately find out whether that information is accurate, inaccurate, and we need basic records from third parties -- hotel records. We may get information from the CIA or another agency that a person has come into the United States and is staying at a particular hotel in Washington, D.C., with an intent to link up with somebody else to conduct a terrorist attack in New York City. We need the information from the hotel. We may even get the name of the hotel. And we need to get that information quickly.
Now, we have been fortunate much of the time to have the cooperation of the persons who run these hotels, motels or other such agencies where we need third-party information. But an administrative subpoena, which we utilize in narcotics -- which Congress has given to us to utilize in narcotics cases, health care fraud cases, child pornography cases, a ream of other circumstances where we have the same need for third-party information, the administrative subpoena allows us to get that information very quickly so we can maintain the momentum of that investigation.
An example is ISPs relating to the use of the Internet. It does not -- the benefit of an administrative subpoena is that we can get it out, we can get it out there fast -- the benefit to the government. The benefit to the person who has been served with this subpoena is that they have an opportunity to challenge it before a court.
I talked to an attorney. They can challenge it before a court if they think it is unwarranted, not relevant to -- unwarranted, let me just put it that way, or burdensome.
And so there's an advantage to us in terms of speed. There's an advantage to the recipient of the subpoena in terms of the ability to challenge it in court as you would challenge a grand jury subpoena.
SPECTER: Thank you very much, Senator Hatch.
KENNEDY: Thank you, Mr. Chairman.
And welcome, General, and thank you very much, Mr. Mueller, for being here.
I'd like to, Mr. Mueller, focus your attention on the detainee abuse in Guantanamo.
On May 10th of 2004, the FBI e-mail described the bureau's efforts to raise the concerns regarding the interrogation practices at Guantanamo Bay. And, according to the e-mail, the Defense Department interrogation techniques were so coercive the FBI was worried about using the statements produced by the interrogations in military prosecutions.
And the concerns of the FBI agents were echoed by U.S. Navy interrogators, who were so outraged by the abusive techniques that had been approved by DOD officials that Navy officials considered withdrawing its interrogators from Gitmo.
Worse, the FBI e-mail describes DOD's refusal to stop using the coercive techniques, even after it acknowledged that the information obtained through coercion was no more substantial than what the FBI got using simple investigative techniques. And the FBI pointed out that the coercive practices produced unreliable information.
And further, the problem of using the coerced confessions to prosecute the detainees was raised with the DOD general counsel, William Haynes, but it didn't seem to make much of an impression there.
Do you know from your own inquiry whether anyone higher up in the bureau passed its complaints on directly to either the attorney general or the White House counsel or to the secretary of defense or initiate any criminal investigations of these kinds of activities?
And did you have the opportunity to interview the four Justice Department lawyers named in the e-mail to see what they did with the information that you gave them?
MUELLER: My understanding is that persons higher in the hierarchy in the FBI did have conversations and, indeed, ultimately we sent a letter to DOD reflecting concerns about certain instances that we had found -- our agents had seen at Guantanamo.
There had been discussions lower down in the bureau with individuals at the Department of Justice with regard to appropriate techniques -- particularly with regard to the understanding that FBI interrogations, according to our standards, would be necessary if we wish to prosecute an individual in the United States.
MUELLER: Now, in terms of an investigation, we did not -- or I did not undertake an investigation as to these four individuals who were listed in that e-mail.
My understanding is that there were some discussions with regard to the techniques that were being used in Guantanamo with those persons at DOJ, and my understanding is those persons at DOJ had further discussions with the Department of Defense.
We did at one point inquire of our agents what procedures they had witnessed that they believed to be beyond our purview, and we did provide that information to DOD for appropriate resolution.
KENNEDY: So, as I understand, you had the communication with DOD. Is that the general counsel or do you know...
MUELLER: I think it was at lower levels, both here at the Pentagon, but also down in Guantanamo. I know in looking at some of the e-mails that had been passed, I know that there were discussions down at Guantanamo between our persons and the general who was in charge of...
KENNEDY: Is that General Miller?
KENNEDY: I think the question is, how are we going to ensure that the FBI is not going to be in the position having to walk out of a room for fear they'll be a witness to torture, and who makes sure the prisoners are not tried and convicted on the basis of coerced statements that may be completely unreliable.
How are you going to make sure that the FBI is not put in that position? How are you going to protect the agency?
MUELLER: Well, from the outset, we have directed our agents to follow our standards. And our standards, from our book, is it is the policy of the FBI that no attempt be made to obtain a statement by force, threats or promises. And from the outset we have directed our agents to follow that standard.
And so we have followed that standard with the understanding that we may well be called as agents to testify in a court of law in the United States where the issue will be voluntariness, and in the course of attempting to obtain a conviction.
Now, that does not mean that there are not other techniques that may be used by other entities that may well be legal, whether it be the CIA or the DOD.
What I was concerned about is that, because our agents testify in the United States, voluntariness is the standard -- we have to ensure that our agents followed that standard.
KENNEDY: Just in that e-mail it does point out, DOD finally admitted that the information was the same information the bureau had obtained. Is that basically your understanding?
MUELLER: I'm not certain of the factual basis for that.
I will say that it's tremendously important to get intelligence, as well as providing a basis and predicate for going to court in the United States.
MUELLER: And we have had to moderate and modify some of our procedures -- for instance, with regard to Miranda -- when the circumstances are such that we would have to forego -- using modified Miranda and perhaps forego successfully having a person's statement admitted into a U.S. court in those circumstances where it is very important to gain intelligence as to future threats -- imminent threats, I might add.
KENNEDY: Let me move just to another area. This is on -- the GAO office found that the total of 44 firearm purchase attempts were made by individuals designated as known or suspected terrorists by the federal government from February 3rd to June 30th, 2004. In 35 cases, the FBI specifically authorized the transactions to proceed because field FBI agents were unable to find any disqualifying information, such as felony convictions or illegal immigration status within the federally prescribed three days.
In response to a recent inquiry by Senator Lautenberg and myself, other senators, you indicate the Justice Department's convening a working group to study the GAO report and existing law and regulations.
Should the FBI be in the business of authorizing the transfer of guns to people on terrorist watch lists?
MUELLER: As we indicate in the response, the attorney general has established a working group to look at that very issue.
Persons may well be on a terrorist watch list without any disqualifying factor -- and that is a factor that would disqualify them for getting a weapon, such as a conviction, such as an outstanding warrant, such as a stay-away order.
And if that is the case, in these instances where GAO mentions that, and we become aware, as we would when we're alerted that somebody on the watch list wishes to purchase a gun, we then will pursue that. We will not let it go.
But in terms of whether or not there should be some modification to the regulations or the statute, the attorney general has established a...
KENNEDY: My time is up, but either the watch list needs addressing, to be altered or changed. I would think that's what we have for those individuals. We'd have to ask, is there a role, really, for the FBI for approving these matters.
I thank the chair.
And I thank the witnesses.
SPECTER: Thank you, Senator Kennedy.
In order of arrival, Senator Cornyn?
CORNYN: Thank you, Mr. Chairman.
Thank you, General Gonzales and Director Mueller, for being here today.
Let me pick up, Director Mueller, with some of the questions that Senator Kennedy was asking you, to make sure I understand why it was the FBI did not believe it could use some of the DOD-approved interrogation techniques at Guantanamo.
I've traveled, like many other members of the committee have, to Guantanamo and had a chance to talk to General Miller and see some of the detainees there and understand a little bit better about what was going on.
CORNYN: And as I understand, we were trying to do two things perhaps at the same time. One is to get good, actionable intelligence in a legal and appropriate manner that could help save American lives, either in the battlefield in Iraq, Afghanistan, or here in America. That was one of the goals, correct, sir?
CORNYN: Also, there would be, under appropriate circumstances, an attempt to enforce our criminal laws, investigate violations of our criminal laws, past violations, and bring those to a court of law and seek to obtain a conviction of appropriate individuals. Is that correct?
CORNYN: And just so I understand, the reason why the FBI did not believe it could use all of the DOD-approved interrogation techniques is because different rules apply in a criminal prosecution with regard to information that an interrogator obtains from a suspect. Is that right?
MUELLER: That's one of the reasons, yes.
CORNYN: And you talked about rules of voluntariness.
CORNYN: In other words, it's got to be a voluntary statement by the suspect. Is that right?
CORNYN: Well, one of the -- for example, General Miller demonstrated to me when I was in Guantanamo how they would literally take a detainee from one location -- there were I think, as I recall, three different places where they could be housed. But they would on the basis of their cooperation provide them better -- or perhaps food that they liked better. They could live in a group setting, as opposed to an individual cell. And that would be based on promises of cooperation and the like.
Certainly not torture, but as I understood your testimony, it may impede a criminal prosecution because it may not be construed by a court in a criminal case as being strictly voluntary. Is that right?
CORNYN: And so the fact that the FBI did not participate in some of the interrogations conducted by the Department of Defense or other officials, was that because you thought that they were engaging in a policy of torture or because you were concerned about your ability to obtain a criminal conviction based upon different standards in a court of law?
MUELLER: My understanding was that there were discussions elsewhere about the appropriateness of certain standards to be used by other agencies besides ourselves.
MUELLER: Did not participate in those discussions. Understood that it was important to gain intelligence. But, from the perspective of the role of our agents, it was to assist in interrogations, but to do so pursuant to the standards that we have employed in the past.
There was some debate on the effectiveness of particular mechanisms. And I think it's fair to say that our agents were far more familiar in this area than I am. I believe that using the carrot rather than the stick often was more effective. But that was a debate that was ongoing.
CORNYN: As I understood you, you said it was against FBI policy to use promises as part of the inducement for people to give intelligence information or give information during an interrogation.
MUELLER: That's true.
CORNYN: Yet that was one of the techniques used with great success at Guantanamo Bay to get information that has provided intelligence information and potentially saved Americans lives. Is that right?
MUELLER: That's right.
CORNYN: There's been some questions, of course, about the Patriot Act since it was passed three and a half years ago. And, of course, as I think Senator Leahy pointed out, of course, there's always been a debate about appropriate freedom and liberty interests and what we need to do in order to protect our security.
But let me ask you, General Gonzales, do you believe that the passage of the Patriot Act and its implementation by the Department of Justice and by the FBI, by other government agencies, is one of the reasons -- one of the reasons -- why Al Qaida and other terrorist organizations have been unsuccessful to date in attacking Americans on our own soil since September the 11th?
GONZALES: I do believe, Senator, it is one of the reasons -- one of the primary reasons, because of the sharing of information which both the WMD Commission and 9/11 Commission have recognized is so very, very important. So I think it is one of the reasons.
And I, too, like Senator Leahy was, and others sitting on this committee, was involved in the drafting of the Patriot Act. We acted with deliberate speed because, quite frankly, we were concerned about a second attack. But we acted with a great deal of care and deliberation because we all understood that while we needed to protect this country, we needed to do so in a way that was consistent with our values and consistent with the Constitution. And I think the Patriot Act reflects that balance.
CORNYN: Well, I agree with you that the Patriot Act is good work done under difficult circumstances. And I say that in part: number one, it's been successful in at least contributing to the lack of a follow-up terrorist attack on our own soil as a result of some of its provisions.
But secondly, it's true, is it not, General Gonzales, that the Patriot Act has been challenged numerous times in courts of law and, with the exception of the material support provision, which actually predates -- that controversy predates the Patriot Act -- there has been no provision of the Patriot Act held unconstitutional in a court of law? Am I correct?
GONZALES: There have been numerous challenges to various provisions of the Patriot Act. And I think today that we have been successful in resisting those challenges.
Some decisions have been made by courts and some people have -- there's confusion as to whether or not was the provision challenged or struck down by the court really a provision of the Patriot Act. And I think if you study some of those decisions very carefully, you soon realize that they relate to provisions that were enacted by Congress years before the Patriot Act.
CORNYN: I see my time is up.
Thank you, Mr. Chairman.
SPECTER: Thank you very much, Senator Cornyn.
Again, in order of arrival, Senator Feingold?
FEINGOLD: Thank you, Mr. Chairman.
First of all, with regard to the point that Senator Cornyn was just making, and the attorney general was making, I want to clarify one thing about the recent decision striking down a national security letter authority that is expanded by the Patriot Act.
The law that the court struck down was very different from the law passed in 1986. While the court focused on the lack of procedures, it was in the context of a law that allowed FBI agents to obtain records and even entire databases under a much different standard than was originally passed.
So, Mr. Chairman, I would say to the senator from Texas, it is simply not correct to say that the court struck down only the 1986 law. It struck down a law dramatically expanded by the Patriot Act.
There is your example on the record of a provision of the USA Patriot Act that has been struck down.
Mr. Chairman, thank you very much for holding this hearing. I'm pleased that we're beginning our review of the Patriot Act early in the year. And I want to thank you very much for you commitment to taking the time necessary to review the executive branch's exercise of government power since September 11th.
I am heartened that this year Congress will have the time and the perspective that we didn't have in 2001 to carefully and calmly consider the many expanded government powers in the Patriot Act.
As we all know, the Patriot Act was proposed days after the horrific September 11th attacks, and the bill was passed and signed into law just a little more than a month later.
I tried in that emotionally charged time to convince my colleagues that some provisions went too far and needed to be revised, but my amendments were rejected. Although, Mr. Chairman, I want to note that you supported me in some of those efforts, and I will always appreciate that.
And now, today, after three and a half years of the Justice Department adamantly opposing any changes, and in some cases belittling critics, we have here today the attorney general of the United States coming before this committee to announce that he, too -- he, too -- recognizes the concerns about the Patriot Act are not so farfetched, and that changes must be made.
FEINGOLD: So we've come a long way.
Attorney General Gonzales, I wish this day had come sooner, but I am delighted.
I need to understand more about the changes to Section 215 that you're proposing, since they were not mentioned in your written testimony submitted yesterday.
And it is possible that we'll disagree about whether your changes are adequate to address the concerns of the American people. But this is a departure from what we've heard before. It's a good start. Having now taken this step, I hope we can have a productive dialogue that has been missing for so long.
I look forward to working with you, Mr. Chairman, and with our witnesses and with other members of the committee as we embark on the reauthorization process.
And I'd ask that my full statement be put in the record so I can turn to some questions.
SPECTER: Without objection.
FEINGOLD: Mr. Attorney General, I'd like to ask you a bit more about a provision that you mentioned, the delayed notification, or sneak-and-peek search warrants, which were authorized in Section 213 of the Patriot Act.
That provision, as you know, does not sunset, but