[Senate Hearing 108-482]
[From the U.S. Government Publishing Office]
S. Hrg. 108-482
AMERICA AFTER 9/11: FREEDOM PRESERVED OR FREEDOM LOST?
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HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
NOVEMBER 18, 2003
__________
Serial No. J-108-53
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas JOHN EDWARDS, North Carolina
Bruce Artim, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Craig, Hon. Larry E., a U.S. Senator from the State of Idaho,
prepared statement............................................. 255
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 1
prepared statement........................................... 282
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts, prepared statement.............................. 284
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 3
prepared statement........................................... 313
WITNESSES
Barr, Hon. Bob, a former Representative in Congress from the
State of Georgia............................................... 6
Chishti, Muzaffar, Director, Migration Policy Institute at New
York University School of Law, New York, New York.............. 18
Cleary, Robert J., Proskauer Rose, LLP, New York, New York....... 20
Dempsey, James X., Executive Director, Center for Democracy and
Technology, Washington, D.C.................................... 16
Dinh, Viet D., Professor of Law, Georgetown University Law
Center, Washington, D.C........................................ 11
Strossen, Nadine, President, American Civil Liberties Union, New
York, New York................................................. 9
Zogby, James J., President, Arab American Institute, Washington,
D.C............................................................ 14
QUESTIONS AND ANSWERS
Questions submitted by Senator Leahy to the witnesses............ 57
Questions submitted by Senator Kennedy to the witnesses.......... 63
Questions submitted by Senator Biden to the witnesses............ 67
Questions submitted by Senator Feingold to the witnesses......... 70
Questions submitted by Senator Craig to the witnesses............ 73
Responses of Bob Barr to questions submitted by Senators Leahy,
Kennedy, Feingold, and Craig................................... 74
Responses of Muzaffar Chishti to questions submitted by Senator
Kennedy........................................................ 80
Responses of Muzaffar Chishti to questions submitted by Senator
Feingold....................................................... 83
Responses of Muzaffar Chishti to questions submitted by Senator
Leahy.......................................................... 84
Responses of Robert J. Cleary to questions submitted by Senators
Leahy, Kennedy, Biden and Craig................................ 88
Responses of Viet D. Dinh to questions submitted by Senator Craig 110
Responses of Viet D. Dinh to questions submitted by Senator Biden 115
Responses of Viet D. Dinh to questions submitted by Senator
Kennedy........................................................ 119
Responses of Viet D. Dinh to questions submitted by Senator Leahy 121
Responses of Nadine Strossen to questions submitted by Senators
Leahy, Kennedy, Feingold, and Craig............................ 122
Responses of James J. Zogby to questions submitted by Senators
Leahy, Kennedy, Biden, Feingold, and Craig..................... 135
SUBMISSIONS FOR THE RECORD
American-Arab Anti-Discrimination Committee, Mary Rose Oakar,
President, Washington, D.C. report summary and attachments..... 145
American Library Association, Carla Hayden, Washignton, D.C.,
letter and attachments......................................... 161
Amnesty International, Stephen Richard, Coordinator, Washington,
D.C., letter................................................... 167
Barr, Hon. Bob, a former Representative in Congress from the
State of Georgia............................................... 171
Center for Democracy & Technology, Center for American Progress,
Center for National Security Studies, Washington, D.C., joint
report......................................................... 180
Chishti, Muzaffar, Director, Migration Policy Institute at New
York University School of Law, New York, New York.............. 219
Cleary, Robert J., Partner, Proskauer Rose, LLP, New York, New
York........................................................... 241
Dempsey, James X., Executive Director, Center for Democracy and
Technology, Washington, D.C.................................... 258
Dinh, Viet D., Professor of Law, Georgetown University Law
Center, Washington, D.C........................................ 277
Fine, Glenn A., Inspector General, Department of Justice,
Washington, D.C., letter....................................... 280
Lawyers Committee for Human Rights, Washington, D.C., report..... 293
Mexican American Legal Defense and Educational Fund, Katherine
Cullition, Legislative Staff Attorney, Washington, D.C.,
statement...................................................... 319
Massimino, Elisa, Director, Lawyers Committee for Human Rights,
Washington, D.C., statement.................................... 327
New York Times, Clifford Krauss, New York, New York, article..... 335
Strossen, Nadine, President, American Civil Liberties Union, and
Timothy H. Edgar, Legislative Counsel, New York, New York,
statement...................................................... 338
Washington Post, Washington, D.C.
DeNeen L. Brown, November 12, 2003, article.................. 355
November 9, 2003, editorial.................................. 357
Philip Allen Lacovar, November 12, 2003, article............. 358
Zogby, James J., President, Arab American Institute, Washington,
D.C., statement................................................ 360
AMERICA AFTER 9/11: FREEDOM PRESERVED OR FREEDOM LOST?
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TUESDAY, NOVEMBER 18, 2003
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:06 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Orrin G.
Hatch, Chairman of the Committee, presiding.
Present: Senators Hatch, Kyl, Sessions, Chambliss, Leahy,
Biden, Feinstein, Feingold, and Durbin.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
Chairman Hatch. Good morning. I want to welcome everyone to
our second hearing in a series to examine the adequacy of our
Federal laws to protect the American public from acts of
terrorism against the United States.
At the outset, I would like to thank our ranking minority
member, Senator Leahy, for his continued cooperation in working
together to examine these important issues. Senator Leahy has
been a tireless advocate for the protection of our individual
rights and liberties, as has, I believe, every person on this
Committee.
As the Chairman of this Committee, he helped to craft the
PATRIOT Act into a bipartisan measure which carefully balances
the need to protect our country without sacrificing our civil
liberties. Without the leadership of Senator Leahy and the
support of my fellow colleagues across the aisle, we could not
have acted so effectively after 9/11 to pass this measure by a
vote of 98 to 1. I am confident that we will continue to work
cooperatively in the future as we plan additional hearings when
Congress returns next year.
Today's hearing focuses on the issue of our civil liberties
in the aftermath of the horrific September 11 attacks against
our people. The unprovoked and unjustified attacks on 9/11
require us all to take every appropriate step to make sure that
our citizens are safe. This is the first responsibility of
Government.
Thomas Jefferson said, ``The price of freedom is eternal
vigilance.'' Congress must be vigilant. True individual freedom
cannot exist without security, and our security cannot exist
without the protection of our civil liberties.
There are some who say that the cost of protecting our
country from future terrorist attacks is infringement upon our
cherished freedoms. Some have suggested that our anti-terrorism
laws are contrary to our Nation's historical commitment to
civil liberties. Well, we disagreed, or we would not have
passed the PATRIOT Act. However, the fact that we did doesn't
mean that that is perfect and that it can't be criticized.
Personally, I think that we have to combine both our civil
liberties and our National security or we will have neither.
While we all share this common commitment to security and
freedom, the question we are examining today is how best to do
so in an environment where terrorists like the 9/11 attackers
are able to operate within our borders, using the very freedoms
that we so dearly cherish, to carry out their deadly plots
against our country.
Let me remind everyone that the 9/11 attackers were able to
enter into our country without the strictures of immigration
laws, enjoy the fruits of our freedom, secure for themselves
all the necessary trappings of law-abiding members of our
society, and then carry out their terrible attacks under the
radar screen of law enforcement, intelligence, and immigration
agencies.
Let me make just one comment with respect to immigration-
related matters. There has been much in the press in recent
weeks concerning the detention of certain aliens suspected of
terrorist activities. The Supreme Court will hear a case in
this area. While this issue is not the central focus of today's
hearing, important issues have been raised that this Committee
must wrestle with over the next number of months.
This hearing will examine our Government's efforts to
promote our freedoms, not just the freedom to live in a safe
and security society, but the freedoms that our country was
founded on and the freedoms that each of us enjoy each and
every day and, of course, the freedoms that are the lifeblood
of our very society.
I am especially interested in hearing from today's
witnesses about the details of any specific abuses that have
occurred under our current laws. We have invited five critics
to ensure that interested parties have ample opportunity to
express their concerns. I am very interested in listening to
them.
At the outset, let us make it clear who is not a witness
today--Attorney General Ashcroft. At the last hearing, some
negatively and unfairly commented on the AG's absence, even
though he was not invited to testify by me. We are planning on
the Attorney General, FBI Director Mueller, and Secretary Ridge
to testify early next year. I think that John Ashcroft is a
good man, and he is doing a very good job as our Attorney
General.
At our last hearing, my good friend and colleague, Senator
Feinstein, made an important point about the dearth of hard
evidence of specific abuses under current law. We must not let
the debate fall into the hands of those who spread
unsubstantiated or outright false allegations when it comes to
these important issues.
We will question today's witnesses on specific abuses of
our laws. We also want to hear their ideas about how current
law should or can be modified to better protect our National
security interests, while maintaining our civil liberties.
I am hopeful we can examine the issue of civil liberties
today in a responsible manner. This Committee will continue to
gather all of the facts. We will ascertain whether the
Government has actually infringed on anyone's civil liberties
while exercising its authority under current law.
I want to now turn it over to Senator Leahy for his opening
statement. After that, I will ask each witness to speak for 5
minutes and then we will a ten-minute round of questions for
each member.
Senator Leahy.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Well, thank you, Mr. Chairman.
As you noted, this is the second in our series of oversight
hearings reviewing America's progress in the fight against
terrorism. Our focus today is on the ways the administration's
policies and actions affect the privacy and civil liberties of
United States citizens, as well as, of course, the rule of law.
We will examine the implications of secret detentions and
round-ups based on religion and ethnicity, the implications of
granting the government more power over our liberties without
sufficient checks and balances, and the implications of
government secrecy or stonewalling. It is an ambitious subject
for one hearing. We all know that we will need additional
hearings next year on related issues.
I compliment the Chairman, because we have worked together
and agreed on the need for a separate hearing to examine the
administration's discretion to designate certain individuals as
enemy combatants. I appreciate very much working with the
Chairman on that.
Now, as you noted, the Attorney General is going to come
before us next year. If we don't adjourn this week, I would
hope that we could actually have him appear this year. There
was criticism on both sides of the aisle when we learned that
the Attorney General, who has had plenty of time to make public
appearances and lobbying appearances around in the country was
not available to appear. In the 29 years I have been here, I
cannot remember an Attorney General who has spent less time
before the Senate Judiciary Committee.
I do welcome our witnesses today. I thank them for coming.
It is important for us to revisit the policy decisions we made
in the PATRIOT Act. As the Chairman noted, it was negotiated
and passed in the emotional aftermath of the terrorist attacks
of September 11. I think we have to look beyond the four
corners of that legislation and we have to examine other
administration policies and actions that affect the civil
liberties of the American people in the name of fighting
terrorism. All of us want to fight terrorism.
One major area of concern involves the mass arrest and
secret detentions that followed the September 11 attacks.
Columnist Stuart Taylor referred to it recently as the
administration's truly alarming and utterly unnecessary abuses
of its detention powers. Earlier this year, the Department of
Justice's own Inspector General reported critically on the
Department's handling of immigration detainees swept up in the
9/11 investigation.
The Inspector General found that the vast majority of these
immigrants were never linked to terrorism. Rather, they had
committed only the civil violation of overstaying their visas
and then found themselves in the wrong place at the wrong time.
I welcomed the hearing the Committee held on the Inspector
General's report in June, but I think we also have to hear from
outside experts, not just administration experts.
Of course, it is proper for the Government to enforce our
immigration laws, but when we suddenly see a major shift in the
way they are being enforced, we have to make sure that the laws
are not being enforced with regard to the religion or the
ethnicity of the aliens involved. An unbiased immigration
policy is not simply the right thing for a great country like
ours to do, but it is also the best national security policy.
Along these lines, I am alarmed by recent reports that the
FBI assisted in the rendition of a Canadian Syrian citizen to
Syria. He was stopped while changing planes in New York and he
was sent to Syria with the help of the United States, where he
was put in a prison and beaten for hours until he confessed to
attending a training camp in Afghanistan; according to him,
confessing just to stop the beatings. Whether that is true or
not, we ought to find out because he says he was held in a cell
that was 3 feet wide, 6 feet deep, 7 feet high, for 10 months,
until he was released by Syrian authorities in October.
Living just less than an hour's drive from the Canadian
border, I see a lot of the Canadian press. There is no better
ally we have than Canada. It is our largest trading partner.
Let me tell you this has given an enormous black eye to the
United States, and as several administration officials have
stated in the press, at least anonymously, they have
acknowledged that they know it gives the U.S. a black eye. It
seriously damages our credibility as a responsible member of
the international community.
When earlier allegations of rendition surfaced, I wrote to
administration officials asking for guarantees that the United
States is complying with the United States obligations under
the Convention Against Torture, something that we have signed
and ratified. I sent a letter to National Security Adviser
Condoleezza Rice on June 2 of this year. It was answered by
Department of Defense General Counsel William Haynes on June
25.
I was assured that if the United States should transfer an
individual to another country, we would obtain specific
assurances that the receiving country would not torture the
individual. I wrote a follow-up letter to Mr. Haynes asking for
greater detail on how our Government is going to get a
guarantee from another country that if we turn somebody over to
it, the government is not going to torture that individual. I
want to know what the assurances are. We never received a
response, but Mr. Haynes is coming before this Committee in a
confirmation hearing tomorrow and we will ask him again. I also
sent a letter to the FBI Director to inquire about the alleged
role of the FBI in this case.
I will put my full statement in the record, but I want to
just touch on two things. They involve certain Government
powers that are not subject to effective checks and balances to
ensure against abuse and certain administration policies that
perpetuate Government secrecy rather than ensure Government
accountability to the American people.
When a government is accountable and open, it is a better
government. When a government is secret and unaccountable, I
don't care whether it is a Democratic administration or
Republican administration, it is not as good a government.
The civil liberties entrusted to each generation of
Americans are ours to enjoy and defend, but they belong not
only to us, they belong to the next generation. We are
benefactors of the freedoms we ourselves have inherited, but we
are also the stewards of those freedoms. Our children and our
grandchildren will look back to see whether we were diligent
when we were tested or whether we sat silent. Others around the
world, including right now the people of Iraq, will also take
note of how vigilant we are in defending the freedoms of our
democracy.
Our civil liberties were hard-won. We fought a revolution,
we went through very trying times. But as hard as these
liberties are to win, they are very easy to lose, and once we
give them away, they are very difficult to reclaim. Benjamin
Franklin said, ``Those who would trade their freedom for
security deserve neither.''
Hearings like this produce report cards on how well we are
meeting this test and honoring the trust of the American
people. So again I thank the Chairman, my good friend from
Utah, for his attention to these matters, and also colleagues
on both sides of the aisle for their active and informed
participation in this important debate.
I will put my full statement in the record.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Chairman Hatch. Well, thank you, Senator.
We are going to start with Representative Barr, who
currently occupies the 21st Century Liberties Chair for Freedom
and Privacy in the American Conservative Union. He is a
consultant to the American Civil Liberties Union. From 1995 to
2003, Bob represented the 7th District of Georgia in the U.S.
House of Representatives, serving as a senior member of the
Judiciary Committee and Vice Chairman of the Government Reform
Committee, and was an 8-year veteran of the Committee on
Financial Services. Prior to his service in Congress,
Congressman Barr was appointed by President Reagan to serve as
the U.S. Attorney for the Northern District of Georgia from
1986 to 1990.
Nadine Strossen is the President of the American Civil
Liberties Union and a Professor of Law at New York Law School.
Prior to her current positions, Ms. Strossen practiced law for
9 years in Minneapolis and New York City. She graduated from
Harvard College and Harvard Law School, where she was editor of
the Harvard Law Review.
We welcome both of you here.
Professor Viet Dinh served in the Justice Department as
Assistant Attorney General for the Office of Legal Policy from
May 2001 until May 2003. Before joining the Justice Department,
Professor Dinh was Deputy Director of Asian Law and Policy
Studies at the Georgetown University Law Center. Professor Dinh
graduated from both Harvard College and Harvard Law School. He
was a law clerk to Judge Lawrence H. Silberman, of the U.S.
Court of Appeals for the D.C. Circuit, and to U.S. Supreme
Court Justice Sandra Day O'Connor.
James J. Zogby is founder and president of the Arab
American Institute. He is a lecturer and scholar on Middle East
issues, U.S.-Arab relations, and the history of the Arab
American community. Mr. Zogby is a board member of Middle East
Watch, a human rights organization, and a member of the Council
on Foreign Relations.
We welcome you, Professor Dinh, and you, Mr. Zogby, as
well.
James Dempsey has served as the Executive Director of the
Center for Democracy and Technology since 2003. Before working
at CDT, Mr. Dempsey was the Deputy Director of the Center for
National Security Studies, and from 1985 to 1994, Mr. Dempsey
served as assistant counsel to the House Judiciary Subcommittee
on Civil and Constitutional Rights. It is good to see you
again.
Mr. Muzaffar Chishti--I think I am pronouncing that
correctly.
Mr. Chishti. Almost correctly.
Chairman Hatch. Almost correctly? Tell me how to do it
correctly.
Senator Leahy. In the ball park.
Mr. Chishti. Chishti.
Chairman Hatch. Muzaffar Chishti, okay. I am doing better.
He is based at the Migration Policy Institute's office at
NYU School of Law. Prior to joining MPI, Mr. Chishti was
founder and director of the Immigration Project of the Union of
Needle Trades, Industrial and Textile Employees, UNITE. Mr.
Chishti also serves as treasurer of the U.S. Committee for
Refugees, and is a member of the Coordinating Committee on
Immigration of the American Bar Association.
We welcome you, as well.
Robert Cleary joined Proskauer Rose in June 2002 after a
lengthy career as a Federal prosecutor. From 1999 to 2002, Mr.
Cleary served as the U.S. Attorney in two different judicial
districts, the District of New Jersey and the Southern District
of Illinois.
Before being appointed United States Attorney, Mr. Cleary
was the lead prosecutor in the Unabomber case, United States v.
Theodore J. Kaczynski, from 1994 until his appointment as the
Unabomber prosecutor in 1996. Mr. Cleary was the First
Assistant United States Attorney in the District of New Jersey.
From 1987 to 1994, Mr. Cleary served as an Assistant United
States Attorney in the Southern District of New York, a man of
great experience, and we are delighted to have you here with us
as well.
We welcome all of you and we look forward to your
testimony. We would like you to conclude when the light goes on
up here. We will give each of you 5 minutes. I am not going to
be tough about it, but I would like you to try and stay within
that if you can so we have enough time for questions.
Bob, welcome back to the Congress. We are glad to have you
here.
STATEMENT OF HON. BOB BARR, A FORMER REPRESENTATIVE IN CONGRESS
FROM THE STATE OF GEORGIA
Mr. Barr. Thank you, Chairman Hatch. It is a distinct honor
to be here today with you and your colleagues on both sides of
the aisle, particularly my dear friend from Georgia and former
House colleagues, Saxby Chambliss, who I know is distinguishing
himself in this body as he did in the former body in which I
had the honor of serving with him. I appreciate the invitation
extended to me by the entire Committee to be here today with
such a distinguished panel of witnesses.
The bipartisan approach reflected by both the Chairman and
the ranking member's remarks and the work of this Committee is
also reflective of the bipartisan approach of those of us who
have expressed some concerns, not just with the PATRIOT Act,
but with the whole panoply of government programs and
regulations, including the PATRIOT Act, including CAPPS II,
including TIA and TIPS, and so on and so forth.
It is bringing together citizens in this country, both
those in the law as well as citizens not steeped in the law,
who are concerned about their civil liberties in a way that I
think is unique and very healthy in America. I very much
appreciate the Chairman's indication that those of us who have
expressed some concerns with the PATRIOT Act and Government
programs are not doing anything un-American at all, that this
is very much a part of the fabric of how we come up with the
very best product, the very best laws, and the implementation
of those laws in this country.
I would also like to thank on the record today Attorney
General Ashcroft and the entire Department of Justice. They
have been faced over the last 2 years with challenges that are
unique in our history. While I and some others find some
substantive fault and have some disagreements with some of the
provisions of these Federal laws and how they are being
implemented, I know I don't, and I don't think any of us
certainly on this panel and in America, find fault with the
motivation of the Attorney General and the perspective that he
brings. We are all trying to do the right thing by America. We
simply have some disagreements on exactly how we need to get
there.
I would appreciate my written remarks being included in
their entirety in the record, Mr. Chairman.
Chairman Hatch. Without objection.
Mr. Barr. Without going into all of that, being very
mindful not only of the Committee's time constraints as well as
the considerable background that the Committee has, which is
far greater than mine, I will let that speak for itself and, if
I could, just take a couple of moments to address one point
that the Chairman made at the beginning of his remarks, and
that is so-called hard evidence about abuses.
Part of the problem, of course, Mr. Chairman, with coming
up with what traditionally might be thought of as hard evidence
of abuses--that is, actual cases in which the Government has
abused the powers in the PATRIOT Act or other laws--is made
necessarily difficult because of the secrecy, of course, that
surrounds it.
So holding those of us who have expressed some concern and
some criticism of the PATRIOT Act and its implementation for
failure to come up with a range of so-called hard-evidence
actual cases is very difficult, if not impossible, in most
instances because we don't know. Certainly, at this point some
of these cases are still working their way through the court
system and they are surrounded by this aura of secrecy, which
is a problem with the entire PATRIOT Act and this approach.
I do think, though, Mr. Chairman, that there is some hard
evidence out there, hard evidence when you talk to both
religious and political as well as social activist groups who
feel very properly and very legitimately and very realistically
that this law and the other Government programs and policies
are having a very pronounced and very palpable chilling effect
on their willingness, their ability to express their views in
ways that heretofore have been not only appropriate, but
accepted forms of expression in this country.
I think also, Mr. Chairman, there are a number of instances
of so-called fishing expeditions on which the Government has
gone. There was one written about just yesterday in the Atlanta
Journal Constitution that caught my attention, a case both from
Virginia as well as with some aspects down in Georgia that are
being handled through the court system.
According to the newspaper accounts that I saw, there is
very clear evidence that this is an example of a fishing
expedition where the Government is using one particular power
under the PATRIOT Act, and that is the broadened national scope
of subpoenas to gather evidence in other districts around the
country from individuals and organizations in other parts of
the country against whom the Government has no evidence even
remotely approaching probable cause that there is a connection
between those individuals and corporations and terrorist
activity, or even criminal activity in the first place. So I
think we are seeing evidence of abuse of the PATRIOT Act in the
sense that we are seeing these fishing expeditions.
I do think also, Mr. Chairman, that there already is some
very serious damage being done to the fabric of the Fourth
Amendment in these various programs, such as some under the
PATRIOT Act, CAPPS II, TIA, and other programs with which the
Chairman and the Committee are very well aware, in which we now
seem to be allowing the Government to gather evidence on
citizens and other persons lawfully in this country without any
of the traditional limitations, the traditional burdens which
the Government has to surmount such as probable cause and
reasonable suspicion. I think if we continue down that road, it
will do very serious permanent damage to the Fourth Amendment.
I think also, finally, Mr. Chairman, there is very clear
evidence that some citizens and others, again, lawfully in this
country, exercising their right to travel, is being arbitrarily
abused, arbitrarily denied because of the exercise of some of
these powers.
In that regard, I know the Committee has concerns not just
about the PATRIOT Act, but about some of these other programs
that are very tangibly in terms of hard evidence infringing and
denying people some of the basic liberties, such as the right
to travel interstate, that have heretofore been protected
activities in this country.
So I think, Mr. Chairman, in response to your very
legitimate concern--sort of show us the beef, where are the
problems, are these very real problems or are they theoretical
problems--I think that they are not theoretical problems. And
as time goes on and these cases work their way through the
court system, as hopefully some of the secrecy surrounding
these problems is stripped away in those court proceedings, it
will become even more apparent that we are indeed embarked on,
at least in some respects with regard to the PATRIOT Act and
these other Government powers since 9/11, a very, very slippery
slope.
I know the Committee shares the concerns of us as citizens
to make sure that we correct that. Even those of us such as
myself, and perhaps many on this panel that voted for the
PATRIOT Act, certainly have some concerns about it, how it is
being implemented, and how it is also being implemented in the
context of all of these other things that the Government is
doing that need to be addressed, need to be brought more back
into balance.
I appreciate the opportunity to both submit a written
statement, provide this oral statement, and answer whatever
questions the Committee might have today in this very important
endeavor.
[The prepared statement of Mr. Barr appears as a submission
for the record.]
Chairman Hatch. Thank you, Mr. Barr.
We will turn to Ms. Strossen.
STATEMENT OF NADINE STROSSEN, PRESIDENT, AMERICAN CIVIL
LIBERTIES UNION, NEW YORK, NEW YORK
Ms. Strossen. Thank you so much, Chairman Hatch and Senator
Leahy and other distinguished members of this Committee. I am
very honored to be before this Committee again. As I reminisced
with Chairman Hatch before we started, my first such honor was
more than 11 years ago, astoundingly, to testify on an issue
that might seem very different, but I think actually has a lot
in common. It was in defense of something called the Religious
Freedom Restoration Act.
What it had in common with the testimony we are presenting
to you today is that that, too, was supported by an incredibly
broad and diverse coalition entirely across the political
spectrum, including Chairman Hatch himself, who was very
gracious and courteous.
I think the broad coalition in support of the reforms that
we are asking for is illustrated very dramatically by the fact
that I am not the only witness here this morning on behalf of
the American Civil Liberties Union. Bob Barr is testifying on
behalf of the American Civil Liberties Union and the American
Conservative Union.
I was struck as I looked at the transcript of the last
hearing that this distinguished Committee had on October 21 on
these issues that Senator Hatch and others indicated that those
who are supporting reforms and who are criticizing some of the
overreaching post-9/11 are the political extremes, the right
and left. I think that is not true. I urge you to look at the
list of 180-plus citizens organizations who support our
coalition, right, left and center, and many non-partisan
organizations, everything from the League of Women Voters to
many mainstream religious groups.
I want to also emphasize that the positions we are taking
are not extreme. The positions we are taking are, first of all,
looking at every provision of every measure individually. We
are not wholesale saying, ``Repeal the PATRIOT Act, take away
all executive orders''. No.
We are simply saying some of these exceed the basic
constitutional tests--and I will put on my constitutional law
professor hat here--namely does this measure really maximize
national security with minimal costs to civil liberties? That
is the substantive test. If we can enhance safety to the same
extent with lesser costs to civil liberties, then that is what
we should do, and that is what many of the reform measures
would do.
The second test is a procedural one. Do these measures
adhere to that fundamental core concept pervading our
Constitution of essential checks and balances? And here, too,
too many of the measures that have been implemented post-9/11
have consolidated power, unreviewable power in the executive
branch of Government, have ignored the oversight
responsibilities of this great body, and have eviscerated the
important power of judicial review. Again, it is restoring the
checks and balances, not taking away the executive branch
power, that we are seeking to do.
I am going to cut right to the chase of the two questions
that Senator Hatch posed at the outset. Number one, hard
evidence of factual abuses. I echo and endorse everything that
my colleague, Congressman Barr, has said. I would just like to
add a couple of points here.
Number one, my written testimony, which I hope will be
incorporated into the record, on pages 12 to 13 gives specific
examples of abuses, including specifically under the PATRIOT
Act. I did see Senator Feinstein's e-mail that she referred to,
or the e-mail from a staff member of the ACLU that she referred
to, and I am very proud of that e-mail.
This was referred to in the last hearing, in which Senator
Feinstein asked a very specific question: Do you have specific,
hard evidence of actual abuses of the PATRIOT Act in
California? And our staff member correctly said we do not have
specific evidence of that particular type of abuse. I think
that is completely responsible, and completely inconsistent, by
the way, with those who have accused their critics of being
hysterical and overblown.
We do have specific evidence of misuse of the PATRIOT Act
and many of the other post-9/11 powers. I think the most
damning abuses were--and the most damning documentation was, of
course--in the report of the Inspector General which Senator
Leahy has referred to.
Specifically with respect to the PATRIOT Act, I want to say
that what the ACLU has the most experience with, and has been
the basis of a constitutional challenge that we brought, is
Section 215 of the PATRIOT Act. Its mere existence--Chairman
Hatch and others its mere existence has already enormously
eviscerated the precious First Amendment rights of people in
this country. It doesn't even have to be used, let alone
abused.
I would be happy to show you the briefs and affidavits that
we have filed in that lawsuit, heartbreaking testimony from
patriotic individuals who say that they have stopped going to
worship services; they have dropped out of mosques, in
particular. They have stopped expressing their political views
because they are afraid that this power can be used against
them.
I am very struck by the fact that the Attorney General, of
course, has said that he has not found it necessary to use this
power in order to pursue the war on terrorism. I also noted
from the last hearing that you asked the very pertinent
question of the Government officials, law enforcement officials
who were testifying, which of the new powers that they had
gotten post-9/11 were helpful and important to them. And none
of the powers that any of those witnesses listed--as Senator
Feingold noted, not a single one of them included Section 215
or the others that we and other critics are objecting to. So I
think this, like RFRA, could be very constructively an area
where there are common concerns and a meeting of the minds.
Very quickly with respect to Chairman Hatch's second
question, what are we asking for, that is laid out specifically
on pages 15 to 16 of my written testimony. High among them is
one of the modest reform measures that has been endorsed by
broad bipartisan leadership, including on this Committee
Senators Craig, Durbin and Feingold.
What these provisions would do is return the law closer to
where it was pre-PATRIOT Act, completely consistent with the
testimony that you heard from the law enforcement officials at
your last hearing. None of these modest reforms--not repeals--
would interfere with the powers that they have said are
necessary for them in order to protect us all from terrorism.
So I very much appreciate this opportunity and look forward
to continuing to work together constructively.
[The prepared statement of Ms. Strossen appears as a
submission for the record.]
Chairman Hatch. Thank you.
Professor Dinh.
STATEMENT OF VIET D. DINH, PROFESSOR OF LAW, GEORGETOWN
UNIVERSITY LAW CENTER, WASHINGTON, D.C.
Mr. Dinh. Thank you very much, Mr. Chairman, Ranking Member
Leahy, members of the Committee. Thank you very much for the
honor and the pleasure of being here to talk about this very
important topic. I have a written statement which I ask to be
submitted for the record.
Chairman Hatch. We will submit all written statements as
though fully delivered, so you won't have to say that anymore.
Mr. Dinh. Thank you very much, Mr. Chairman. I would like
very quickly to go through some of the concerns that the
Ranking Member and my colleagues have expressed, as well as
some concerns that have been expressed in the public debate.
I first want to echo Congressman Barr's bipartisan
statement that we are all in good faith trying to discover the
best way to protect the civil liberties and security of America
at a time when these things are under threat. I know that no
one in the Department of Justice, no one in the administration,
no one at this table or other participants in this debate
question the patriotism of those who engage in this debate.
Governance is not a static process; it is a dynamic process,
and I appreciate this Committee taking its time to do this
valuable work in light of the threat of terror threatening our
civil liberties.
I want to go through my opening statement by converting my
prepared statement to track the constitutional amendments that
seem to be of concern. I want to start first with the First
Amendment, and then the Fourth Amendment, and then conclude
with the Fifth and Sixth Amendment regarding the right to trial
by jury.
With respect to the First Amendment, much noise and much
criticism has been directed at Section 215 of the USA PATRIOT
Act. As members of this Committee well know, Section 215
translates into the national security context, the Foreign
Intelligence Surveillance Act context, powers that preexisted
Section 215, powers that the grand jury has always had since
time immemorial and indeed can be exercised by prosecutors and
investigators with much lesser checks than those that this
Committee and Congress have afforded in Section 215.
I do not doubt that individual activists and organizations
may well feel a chill to their First Amendment activity. I do
not doubt that these fears are sincere. I am also very
confident they are not founded because they really should be
addressed to preexisting criminal processes that preexisted
Section 215. And indeed it is a legitimate question whether or
not to extend to other contexts the protections of Section 215
and elsewhere in the Foreign Intelligence Surveillance Act that
do not permit Government officials to target First Amendment
activities by the use of these powers. That is a legitimate
debate.
Indeed, I note here that in the Attorney General's
revisions to the Attorney General guidelines which he published
last June, June of 2002, at page 7 he instituted
administratively such a restriction that investigations not be
targeted solely at First Amendment activities, thereby
extending the same protection that Section 215 affords to
Foreign Intelligence Surveillance Act authorities to general
criminal processes.
I do think that questions regarding confidentiality and
secrecy are very weighty ones in our constitutional structure,
including in our criminal processes. That is why I welcome the
very significant restrictions that Section 215 puts on law
enforcement authorities, including the accountability
provisions that the Department of Justice is under obligation
to report to Congress every 6 months.
With respect to the Fourth Amendment, Congressman Barr has
noted that there has been significant concern regarding the USA
PATRIOT Act. And much more importantly, preexisting authority
in criminal law and foreign intelligence surveillance may have
an undue burden on our constitutional protection against
unreasonable searches and seizures. These are significant
concerns.
One of the commentaries that I have on the current debate
is that the focus on what are considered to be politically-
charged or sexy issues, like Section 215, like the delayed
notice provisions, has drowned out legitimate conversation and
debate regarding how we go about protecting the Fourth
Amendment even as we use these very important tools in the
Foreign Intelligence Surveillance Act.
For example, Section 218 of the USA PATRIOT Act makes a
very critical change to the Foreign Intelligence Surveillance
Act to allow better communication and coordination between law
enforcement and intelligence. I don't think anybody, including
those at this table and other critics, have questioned that
underlying change in law.
Many questions, however, are raised by that change in law,
including what exclusion procedures would be applicable. Are
they Fourth Amendment exclusion procedures, are they FISA
exclusion procedures, or are they procedures under the
Classified Information Protection Act? These are the questions
that the courts, in particular the district court of Florida in
the Sami Al-Arian case, are trying to work out and ultimately
the courts will answer. But these are the kinds of questions
that I think the public debate should focus on and this
Committee will focus on in the near future in order to
ascertain what, if anything, we can do in order to better
protect the Fourth Amendment.
Finally, a note about the Fifth and Sixth Amendments and
the right to trial. There has been much talk regarding the
detention of Mr. Jose Padilla and also Yasser Hamdi. Focus has
been put on the Fifth and Sixth Amendment right to trial and
how these rights are not being afforded to these particular
individuals.
Also of relevance, of course, is Article II of the
Constitution, which grants to the President the commander-in-
chief authority. It is under this authority that the President
has sought military detention of these individuals, just as
Presidents in other times of war have detained battlefield
detainees in order to incapacitate them from doing harm to our
men and women fighting on the battlefield.
In this war against terror, the terrorist has chosen the
battlefield not to be restricted to Afghanistan or Iraq, but
indeed expanding to Morocco, Saudi Arabia, Turkey and, of
course, on September 11, the World Trade Center and Washington,
D.C. In such a circumstance, I think it is an easy question,
not particularly an easy question, but I think it is only a
small step to extend the President's authority to detain
battlefield detainees outside the traditional battlefield.
A much harder question, one that I think the Supreme Court
will ultimately answer--and frankly I do not find much support
in the cases to provide the answer--is whether or not the Court
will defer to the Executive when there is nothing to defer to;
that is where there are no alternative processes, either
military, executive or other types of processes, as we have
seen in the past with the In Re Quirin or Ex Parte Milligan
cases. Those are the questions that the Second Circuit grappled
with yesterday. I think ultimately the Supreme Court will
answer those questions.
I would note, in conclusion, however, that it is not the
Court alone that should be answering these questions, and it
certainly should not be the Executive alone. But this body,
this Committee, has a very significant voice in the
constitutional debate, and I sincerely hope that out of these
hearings and out of the increased attention paid to these
issues would be a Congressional voice with respect to these
very, very important issues.
Thank you very much.
[The prepared statement of Mr. Dinh appears as a submission
for the record.]
Chairman Hatch. Thank you, Professor.
Mr. Zogby.
STATEMENT OF JAMES J. ZOGBY, PRESIDENT, ARAB AMERICAN
INSTITUTE, WASHINGTON, D.C.
Mr. Zogby. Thank you, Mr. Chairman. Thank you to you and to
the Ranking Member and to the members of the Committee for
convening this important session.
Much has been done in the last 2 years to combat the threat
of terrorism. We have had significant accomplishments. We
deposed the regime in Afghanistan that was hosting those who
committed damage to our country. We created the Department of
Homeland Security. We have taken steps to enhance airport and
border security and we have improved information-sharing
between intelligence and law enforcement agencies.
Arab Americans are proud to have played a part in these
efforts. We serve on the front lines of the war on terrorism as
police officers, firefighters, soldiers, FBI agents, and
translators. My institute has worked with Federal, State and
local law enforcement in efforts to secure the homeland.
We helped recruit Arab Americans with needed language
skills and tried to serve as a bridge between law enforcement
and my community. Recently working with the Washington Field
Office of the FBI, my institute helped create the first Arab
American FBI Advisory Committee. It is now serving as a model
for other similar efforts around the country.
As someone who has spent my entire professional life
working to bring Arab Americans into the mainstream of American
political life and to build a bridge between my country and the
Arab world, I am concerned about the direction, however, of
some of the efforts to combat the terrorist threat and the
impact that some of these initiatives are having on our country
and on my community.
I am going to leave the constitutional issues to those more
qualified to speak about them. But as a professor myself, a
professor of religion, and someone who has written extensively
on the Middle East and traveled there and worked in my
community here, I want to talk about the impact that these
initiatives are having not only on civil liberties, but also on
the very well-being of my community here and on our image
overseas.
Specifically, I speak of a number of initiatives that have
been launched by the Department of Justice, many of which went
beyond the PATRIOT Act. First, there was the dragnet that
rounded up over 1,000--we don't know the number because they
stopped giving it when it got too high--in the aftermath of 9/
11.
What troubles me was not the fact that some were arrested
and charged with immigration violations. But it was the
deliberate conflation and confusion of those arrests with the
war on terrorism, creating the impression that hundreds, if not
all of these, somehow were wrapped up in the war on terrorism.
The same occurred when the call-up of 5,000 and then 3,000
occurred. The notion was, in other words, that somehow this was
not just a cleanup operation for an INS system that is in
serious trouble, but somehow it had to do with the war on
terrorism, creating enormous fear in my community and
suspicious about my community.
This was, I think, in many ways exacerbated by the poor way
that these programs were implemented. For example, when letters
were sent out, in many instances citizens got letters, creating
even greater fear as to what this program was about. The same
happened with NSEERS, resulting in not only the registration of
individuals, but fear to go and register, and that fear was
compounded when many of those who actually abided by the law
and registered ended up being detained and in some cases are
now scheduled for deportation.
These programs combined have harmed individuals and their
rights. They have created fear. They have also promoted
suspicion, as many of our fellow Americans view as a result of
these programs that have been based on profiling recent
immigrant Arabs or Muslims as collectively a threat to our
country. And when those of us who were in leadership roles in
my community criticized the programs and how they were being
implemented, we found immediately how great the fear and how
great the suspicion because we became subject ourselves to
death threats.
In fact, it was ironic that the FBI had to go and
investigate people who threatened me because I was criticizing
some of the programs initiated by the Department of Justice.
And these programs serve to break trust between ourselves and
the FBI. In fact, the FBI would call us and criticize these
very programs because they were concerned that they were
breaking down the community policing relationship that we, both
of us, were working to establish.
Equally significant is the impact that these programs have
had on our nation's image overseas, and I think is significant
because the war on terrorism requires partnership, requires
trust, and requires a good American relationship with countries
that we need to be our allies.
Visitors are down. Student and business visas are down.
Doctors, and even Fulbright scholars, are down. There is fear
of coming to the United States, and coming to the United States
has been so important in the past for building the
relationships necessary to help transform not only the way
countries view America, but how those countries advance and
move forward.
There is also a threat to our image in terms of how we have
projected ourselves to the world. I had a debate with a foreign
minister of an Arab country and I was arguing with him about
the way he was treating prisoners in his own country--trial
without due process, no charges given, no access to attorney,
et cetera. After 9/11 he saw me at one point and said, you
know, you are doing exactly what you have accused us of doing.
That hurt me as an American and I think it hurts our country.
If the President is right and reform in Arab countries is
necessary to combat terrorism, then we must acknowledge that
with our post 9/11 behavior, we have stopped setting a standard
for the world. We have lowered the bar. We are no longer the
city on the hill that reformers can look up to. We have now
become just another one of the guys that abuse human rights.
That is wrong and it is not good for our country or the war on
terror.
So I close with the observation that I think we have some
soul-searching to do. Have these programs that I outlined
contributed to the war on terror? Have they succeeded in making
us more secure, or have they only served the purpose of
creating a kind of a publicity stunt that says, oh, we are
rounding up 5,000 or going after 3,000 or registering people,
with negligible effect on the war on terror?
I think the damage down outweighs any good. In fact, we
have seen no good from most of these programs, according to the
Inspector General's reports and others. So I think we need to
take a long, hard look at how we move forward so that we once
again become America, the country that is looked up to, that
sets a standard for the world, and can not only be the role
model we seek to be, but also can become more secure with
partners working with us to achieve that security.
Thank you.
[The prepared statement of Mr. Zogby appears as a
submission for the record.]
Chairman Hatch. Thank you, Mr. Zogby.
Mr. Dempsey.
STATEMENT OF JAMES X. DEMPSEY, EXECUTIVE DIRECTOR, CENTER FOR
DEMOCRACY AND TECHNOLOGY, WASHINGTON, D.C.
Mr. Dempsey. Mr. Chairman, Senator Leahy, members of the
Committee, good morning, and thank you for the opportunity to
testify at this important set of oversight hearings.
Terrorism poses a grave and imminent threat to our Nation.
While more needs to be done, huge strides have been made since
9/11 to improve our counter-terrorism capabilities. We are all
very fortunate to be protected by the dedicated officials of
the FBI and the Department of Justice and the other agencies.
To do their jobs, these officials need powerful legal tools.
These powers, however, must be subject to controls, standards,
and oversight.
Since 9/11, the Federal Government has engaged in a series
of serious abuses of constitutional and human rights. The
phrase ``the PATRIOT Act'' has become a symbol or a shorthand
reference to the Government's response to terrorism since 9/11,
but the most egregious abuses of civil liberties and human
rights have taken place outside of the PATRIOT Act or any other
Congressional authorization.
The PATRIOT Act itself contains many useful and non-
controversial provisions, but also in the PATRIOT Act, not
surprisingly given the time pressures and the emotional
situation under which it was passed, mistakes were made. The
pendulum swung too far, and important checks and balances were
eroded that now need to be restored.
Of course, the FBI should be able to carry out roving taps
during intelligence investigations of terrorism, just as it has
long been able to carry out roving taps in criminal
investigations of terrorism. But the PATRIOT Act standard for
roving taps in intelligence cases omits some of the important
procedural protections that exist on the criminal side.
Of course, the law should clearly allow the Government to
intercept transactional data about Internet communications, but
the standard for both Internet communications and telephones is
so low that the judges are reduced to mere rubber stamps and
cannot even inquire into the factual basis for the surveillance
application.
Of course, prosecutors should be able to use FISA evidence
in criminal cases and to coordinate intelligence and criminal
investigations, but FISA evidence in criminal cases should not
be shielded from the adversarial process, as it has been in
every case so far where it has been used.
The worst civil liberties abuses since 9/11, as I said,
have occurred outside the PATRIOT Act. These include the
detention of U.S. citizens in military jails without criminal
charges. I think the case of Padilla illustrates the inadequacy
of the war metaphor applied without thinking to the present
situation. We all use it. There are clearly war elements to
what is going on, such as the operation in Afghanistan.
But as Professor Dinh said, if you start with the war
metaphor and apply it uniformly, and if you assume that the
President as commander-in-chief is carrying out his commander-
in-chief responsibilities in this war, and if you assume that
the battlefield is without borders and that the battlefield
includes the United States, then as Professor Dinh said, it is
a short and relatively easy step to say that the President can
arrest and incarcerate citizens without criminal charges and
hold them indefinitely in military prisons.
I think the solution there is to distinguish when the war
concept is correct and when the criminal justice concept must
be applied. And in the case of citizens, people arrested in
this country, the criminal justice system is fully adequate to
deal with those cases and should be used.
The detention of foreign nationals at Guantanamo and other
locations with no due process, I think, is another example not
where full criminal process should be applied, but at least
where there should be compliance with the Geneva conventions,
which this administration has also sought to avoid.
The post-9/11 detentions of foreign nationals in the United
States has been alluded to. The Office of Inspector General at
the Department of Justice has documented the abuses there.
Senator Leahy referred to the alleged rendition of suspects
to other countries, knowing or intending that they will be
tortured. There is also the abuse of the material witness law
to hold aliens and citizens alike in this country for long
periods of time without bringing them before a grand jury or
without seeking their testimony. All of these are important,
documented civil liberties and human rights abuses, all of
them, I believe, unnecessary in winning this struggle.
Turning to the PATRIOT Act, one of the clearest abuses
concerns the use of sneak-and-peek searches in ordinary
criminal cases, including even non-violent crimes unrelated to
terrorism. The Government admits using the Section 213
authority in non-violent cases. These included the
investigation of judicial corruption, where agents carried out
a sneak-and-peek of judicial chambers; a health care fraud
investigation where they carried out a sneak-and-peek of a
nursing care business.
Section 213 fails in its stated purpose of establishing a
uniform national standard applicable to sneak-and-peek searches
throughout the United States and does not give judges the
guidance they need either in terms of the standards or the
length of time for which notice may be delayed.
I don't really know why we are still debating Section 215,
the business records section. The Justice Department has
admitted that they have not used this a single time since 9/11,
not only not for library records, but not for any kind of
records. I think it is an unnecessary provision and should be
repealed. It illustrates the failure to examine before the
adoption of the law whether any of the authorities being sought
were needed, but we clearly have one there that is not needed.
The use of FISA evidence in criminal cases without due
process is another abuse. There is a solution readily at hand,
namely the application of the Classified Information Procedures
Act to ensure that FISA applications can be scrutinized and
subjected to the adversarial process by defendants.
And there are other abuses, of course, outside of the
PATRIOT Act. Congressman Barr referred to some of the data-
mining applications. The U.S. Army recently acquired records
from the JetBlue Airline about air passenger travel without any
form of authorization, and that is clearly something that needs
to be looked at because I believe that the JetBlue case is
really the tip of the iceberg in terms of the Government's use
of data-mining techniques.
We are in an epic struggle. None of us doubt that. These
are very, very difficult and dangerous times that our country
faces. But in order to be successful in this struggle, we are
going to need every check and balance, every guideline, every
standard, every form of oversight and accountability at our
disposal. I don't see how we can possibly win otherwise,
domestically or internationally.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Dempsey appears as a
submission for the record.]
Chairman Hatch. Thank you, Mr. Dempsey.
Mr. Chishti.
STATEMENT OF MUZAFFAR CHISHTI, DIRECTOR, MIGRATION POLICY
INSTITUTE AT NEW YORK UNIVERSITY SCHOOL OF LAW, NEW YORK, NEW
YORK
Mr. Chishti. Thank you, Mr. Chairman.
Chairman Hatch. A vote has just started, so what we are
going to do is try and finish the last two testimonies, then we
will all go vote. We have two votes in a row, so we will use up
most of the time of the first vote and then we will try and
vote quickly and come right back.
So, Mr. Chishti, we will go to you.
Mr. Chishti. Thank you, Mr. Chairman and other
distinguished members of the Committee. We applaud you for
holding these hearings on this extremely vital topic, and thank
you for the invitation to testify here.
The Migration Policy Institute, which is a D.C.-based think
tank on immigration and refugee matters, recently completed an
18-month review of our Government's post-9/11 immigration
measures. The report, titled ``America's Challenged Domestic
Security, Civil Liberties, and National Unity after 9/11,'' is
a very comprehensive look at our immigration policies from
these three distinct perspectives. Doris Meissner, the former
Commissioner of the INS, is one of the co-authors of the
report, along with me.
The report is based on interviews with a wide range of
current and former law enforcement and intelligence officials,
and leaders of the Arab American and Muslim and other immigrant
communities all across the country. It provides a legal
analysis of the Government's immigration measures since 9/11
and it looks historically at how the country has dealt with
similar chapters of national crises in the past.
Most importantly, the report is based on the profiles of
over 400 people detained in the immediate aftermath of
September 11. Mr. Chairman, we have submitted the entire report
and the appendix which contains these profiles for inclusion in
the record.
The report concludes that our Government has overemphasized
the use of the immigration system as the lead weapon against
terrorism, at least in the domestic context, since 9/11. The
immigration system simply cannot be a lead weapon in the war
against terrorism. As an anti-terrorism measure, immigration
enforcement is of limited effectiveness. The failure of 9/11
was not a failure of our immigration policy. It was
fundamentally a failure of intelligence.
But on the other hand, immigration measures that have
targeted specific nationality groups that Jim Zogby talked
about, and non-citizens in many of these measures, have
provided us a false sense of security, have not made us safer,
but instead have undermined some of the bedrock constitutional
principles and eroded our sense of national unity. They have
alienated the important and critical communities in the Arab
and Muslim populations in the U.S., and these actions have an
echo effect around the world.
When actions are taken against Muslim and Arab communities
which alienate them, they deepen the perception in the Muslim
and Arab world that America is anti-Muslim and our principles
are hypocritical. That only strengthens the voices of radicals
in those parts of the world.
Let me tell you about what we learned from the profiles of
406 people who were detained post-9/11. As we have heard here,
secrecy was paramount in the Government's actions regarding
detainees after 9/11, but we were able to gather these profiles
based mostly on information we got from lawyers who did their
cases, sometimes from detainee interviews themselves, and a lot
from the press reports. Let me give you highlights of these
profiles.
About one-third of these people--and, by the way, the
sample of 406 is thrice the size of the Office of Inspector
General's profile of the numbers that they looked at in their
report, but it draws similar conclusions.
About one-third of the people caught after 9/11 were
Pakistanis and Egyptians, with no clear understanding or
explanation of why there was such a disproportionate number.
Unlike the hijackers who we think were rootless and recent
arrivals, about 46 percent of the people in our sample had
lived in the country for more than 6 years, and about half of
them had spouses, children, and other relatives in the country.
A large number of these people were detained for long
periods of time. About half of them were detained for more than
9 weeks, and about 10 percent were detained for more than 9
months. Many were detained without a charge being brought
against them for long periods, circumventing the USA PATRIOT
Act's mandate of bringing a charge within 7 days of an arrest.
Fifty-two percent of people in our sample were held on what
came to be known as FBI holds after a final determination on
their case, and about 42 percent were denied the opportunity to
post a bond. We also found that the Government brought people
as material witnesses in about 50 cases, which meant that they
had circumvented the procedural aspects of detaining these
people.
Six hundred immigration hearings were closed to the public
and, most importantly, none of the arrests that were made as a
result of the immigration initiatives of the Government after
9/11 resulted in a terrorism-related prosecution.
We made recommendations in six areas in our report, ranging
from Congressional oversight to foreign policy. Let me just
highlight only two. Congress has shown extraordinary deference
to the executive branch on immigration measures after 9/11. In
the immediate aftermath of 9/11, that would be understandable,
but I think it is high time for Congress to reassert its policy
and oversight role, and evaluate how these immigration
procedures have been used after 9/11.
The executive branch, for example, has defended closed
hearings, and it has defended withholding the names of people
whom they have arrested on the basis that it provides an
important way for them to seek informants. I think we need to
ascertain whether there is validity in these claims via a
Congressional committee.
Detention, Mr. Chairman, is the most onerous power a state
can have and it should be exercised very carefully. We believe
that detentions of more than 2 days after the charge, closed
hearings, and use of classified information are all matters
that should be subject to judicial review.
Finally, the last point I would make is that even in the
war on terrorism, we are dealing in a world of limited
resources, of both human and financial resources. It is
important for us to spend those resources on information-
sharing and analysis, on interagency cooperation, instead of
having broad, blanket operations against specific groups of
people.
The one measure that is still alive today is the special
registration program, the call-in registration program that
targeted nationals of 25 countries. The Government decided not
to extend that program last year beyond the first 25 countries.
Since it decided not to extend that, we believe it is important
that the follow-up requirements of that measure should be
abandoned.
Thank you.
[The prepared statement of Mr. Chishti appears as a
submission for the record.]
Chairman Hatch. Thank you, Mr. Chishti.
Mr. Cleary, we will go to you.
STATEMENT OF ROBERT J. CLEARY, PROSKAUER ROSE, LLP, NEW YORK,
NEW YORK
Mr. Cleary. Mr. Chairman, Ranking Member Leahy, and members
of the Committee, thank you so much for holding these important
hearings and for inviting me to present my views.
I was the United States Attorney in the District of New
Jersey on September 11, 2001. Immediately after the attacks, we
established a command post which served as the nerve center for
the New Jersey 9/11 investigation. Because New Jersey as it
turned out had been a staging ground for the attacks, we played
a vital role in the global 9/11 investigation.
In order to illustrate how indispensable the PATRIOT Act is
to the war on terrorism, and to illustrate why some of the
loudest criticism against the Act is misplaced, I would like to
provide a brief glimpse into our command post.
Those in charge of the command post were gripped on a daily
basis with an all-consuming fear that another catastrophic
terrorist attack was about to happen any hour, any day. We did
not know where and we did not know when. Everyday, we
challenged ourselves and we pushed our subordinates to work
faster, to work more efficiently, to work more expeditiously.
Our overriding goal everyday was to, as quickly as
possible, detect and dismantle any terrorist plot that we
feared was on the horizon. Speed and efficiency--those became
our watch words in the command post, and I would suggest to
this Committee that speed and efficiency need to be the watch
words of every terrorist investigation. They need to be the
watch words because those investigations must prevent the next
terrorist attack.
As we soon found out in our command post, the speed and
efficiency that we valued so highly was compromised by
administrative impediments imposed by antiquated laws. The
PATRIOT Act removed those obstacles. As just one example, I
should mention the efforts Government made, that law
enforcement made to obtain e-mail evidence. E-mail is a
preferred method of communication among terrorists. In order to
obtain e-mail content, the message itself or the subject line,
law enforcement quite properly needs to obtain a search
warrant.
Here is the problem: Prior to the PATRIOT Act, the law
required that the search warrant for e-mail content could only
be obtained in the district where the Internet service
provider--Yahoo, America Online, Hot Mail, et cetera--where
that service provider existed. Two of the three largest service
providers in this country exist in the Northern District of
California.
What that meant as a practical matter during our 9/11
investigation was that our New Jersey search warrant seeking e-
mail from a terrorist that resided in New Jersey and who had
sent e-mail from New Jersey--that search warrant could not be
filed in the District of New Jersey. It had to be filed and
only could be filed 3,000 miles away in California, along with
the search warrants seeking similar information by every other
United States Attorney's office throughout our country.
This created an enormous bottleneck because, in addition to
the paperwork that got filed out there, each and every one of
those U.S. Attorneys' offices had to find a prosecutor in
California and an agent in California who was unfamiliar with
our New Jersey case to act as the people to submit the
application to the California judge. This slowed down our
investigation, and the PATRIOT Act thankfully has removed that
bottleneck. And why shouldn't it? The same protections and
safeguards that were in place prior to the PATRIOT Act--a need
to demonstrate probable cause--apply after the PATRIOT Act.
Similar impediments concerning search warrants for other
materials in terrorism cases and for requests for Internet
activity have likewise been removed by the PATRIOT Act, all
without any diminution in the constitutional or privacy
safeguards that existed under prior law.
In closing, as a citizen I thank you and your colleagues in
Congress for providing law enforcement with the tools they need
to protect us in the PATRIOT Act.
Thank you.
[The prepared statement of Mr. Cleary appears as a
submission for the record.]
Chairman Hatch. Well, thank you. We appreciate the
testimony of all of you. We are going to go vote twice now and
we will return as soon as we can and we will start the
questions as soon as we get back, and probably start with
Senator Leahy.
With that, we will recess until we can get back.
[The Committee stood recess from 11:14 a.m. to 11:44 a.m.]
Chairman Hatch. If we can have order, I appreciate that.
Let me just ask one question of each of you and then I will
be happy to turn to Senator Leahy.
I will ask this question, Ms. Strossen, of you, and I don't
mean to single you out. It is just that I think you are
probably the one who should answer this first. We have heard
testimony from several U.S. Attorneys, including Jim Comey, the
new Deputy from New York, whom the Judiciary Committee just
last night unanimously voted on as our next Deputy Attorney
General, that from a statutory and enforcement perspective our
Nation is better prepared to prevent and respond to terrorist
attacks than we were on the morning of September 11, 2001.
I have two related questions. First, do you agree that our
country is better prepared to stop acts of terrorism today than
we were 2 years ago? And, secondly, are our strengthened laws
and vigilant efforts at law enforcement consistent with our
traditional American respect for civil liberties and
constitutional rights?
So those are the two questions, and we will start with you
and then I will go to--
Ms. Strossen. I couldn't hear the second question.
Chairman Hatch. Well, the second would be--
Ms. Strossen. I think the sound system isn't working.
Chairman Hatch. I am having trouble with this laryngitic
voice.
Are our strengthened laws that we just referred to and
vigilant efforts at law enforcement consistent with our
traditional American respect for civil liberties and individual
rights?
Ms. Strossen. On the first question, Senator Hatch--are we
better prepared to face terrorism--I have never held myself
forward, nor has my organization held it itself forward as an
expert on counter-terrorism. I can only hope that we are better
prepared.
I have followed all of the expert analyses that have been
made publicly available on that issue, including, as far as I
know, the most in-depth having been done by the intelligence
committees of both the House and the Senate, the joint inquiry.
Although part of their findings were, of course, classified and
not released to the public, I did read with great interest the
findings and recommendations that were released to the public
and I noted with great interest that most of those findings and
recommendations had absolutely nothing to do with increasing
the Government's powers of surveillance, investigation, and
prosecution, but rather had to do with what some of the
Senators on this Committee referred to in the last hearing as
nuts-and-bolts problems, mundane but critically important,
having to do with, for example, improving the computer system
in the FBI, having more translators.
And I noted at the last hearing of this Committee on this
issue on October 21 Senator Leahy was very concerned that the
Government still had not followed the repeated recommendations
of Congress to do such a basic thing as hiring more translators
of Arabic and other languages that are obviously essential to
really make us safer.
And I continue to be concerned--I must say as somebody who
flies at least 200,000 miles a year, I have a very deep
interest in aviation security, and yet I heard just this
morning that we are only now beginning to institute the
beginnings of cargo searches even of the air cargo, 22 percent
of which goes onto passenger flights. So I continue to be
concerned about some of these nuts-and-bolts steps that have
not been taken.
Senator Hatch, referring to your second question, which I
think really is kind of the flip side of the first one, I
listened with great interest to the two Government witnesses
here, Messrs. Dinh and Cleary, and the only specific example
that I heard them allude to was in Mr. Cleary's statement of a
new power that had been given post-9/11 that was deemed to be
necessary, or indeed even specifically helpful in order to
improve our counter-terrorism efforts. The one specific new
power that was referred to by Mr. Cleary was the nationwide
search warrant power.
Now, here, too, Chairman Hatch, I want to stress what I
said in my opening remarks that it is sort of like apples and
oranges. The Government witnesses are saying we can do a better
job to protect national security because of these powers, and
the civil libertarian critics across the political spectrum are
saying we object to these other powers.
The nationwide search warrant power is a perfect case in
point. The only objection we have to the wide-open way in which
that new section of the law is written is that it is written in
such an open-ended way that it could be used only for judge-
shopping. That is not the situation that was described by Mr.
Cleary. He described a situation where there was a legitimate
nexus between the jurisdiction where the investigation was
going on and that where the search warrant application was
made.
So I have not heard anything either today or in this
Committee's prior hearings that makes me convinced that we
cannot go forward with the modest revisions that are put
forward in bills such as the SAFE bill that would be completely
consistent with both civil liberties and the national security
concerns that the Government is raising.
Chairman Hatch. Let me go to Professor Dinh next, since he
will have perhaps another point of view.
Mr. Dinh. Thank you very much, Mr. Chairman. I think it is
undoubted that the country's law enforcement and intelligence
agencies and our State and local partners in the fight against
terrorism have more resources, more legal authorities to combat
terrorism today than they did on September 10, 2001.
In order to illustrate the necessity and the critical
importance of these tools that Congress has provided to law
enforcement, I would simply point the Committee and members of
the panel to the May 13, 2003, submission to the House
Judiciary Committee, a 60-page document in which the Department
of Justice and other Government agencies in response to that
Committee gave a section-by-section compendium of how these
authorities were used and how they were helpful in the fight
against terrorism.
I would note, echoing your opening remarks about the
bipartisan nature of the fight against terrorism, that the
proposals the Congress accepted as part of the USA PATRIOT Act
did not come from the administration out of the blue right
after September 11, but rather they came from recommendations,
for example, of the Hart-Rudman Commission which issued its
report in 1999, but largely recommendations that were unheeded.
Indeed, we had an opportunity earlier last week to speak on
a panel with former Deputy Attorney Jamie Gorelick, who noted
that many of the proposals were ones that she had thought were
necessary prior to September 11, but were not acted on before
then.
Do we have more authorities? Absolutely. Is there more work
that needs to be done? Undoubtedly, including the breaking down
not just of the legal barriers which Congress has done with
Section 218 of the USA PATRIOT Act, but the institutional and
cultural barriers to cooperation and collaboration between the
intelligence community and the law enforcement community, and
between State and Federal law enforcement communities. I think
that these sets of hearings elucidate the need for further
action, but also to evaluate the successes that we have had in
the last 2 years of keeping America safe.
Chairman Hatch. Thank you.
Mr. Barr, we will go to you and then Mr. Cleary, so that we
kind of have the two different points of view.
Mr. Barr. Thank you, Mr. Chairman. If I could, as I related
to both the Chairman and the ranking member, I have a plane to
catch, and if I could be excused after this.
Chairman Hatch. We understand and we will certainly excuse
you.
Mr. Barr. I appreciate the Committee's forbearance and
apologize for leaving early. I certainly would be happy to
answer any additional questions in writing that any member of
the Committee would care to send.
Chairman Hatch. We will keep the record open for any
questions in writing that members of the Committee would care
to submit.
Mr. Barr. Mr. Chairman, from my perspective as a former
intelligence official with the CIA, as a former United States
Attorney, a Federal prosecutor, as a former Member of Congress
and a member of the House Judiciary Committee, and as a defense
attorney--in all of those capacities, and certainly perhaps
most importantly as a citizen observer, I believe that America
is safer today than we were on 9/11.
Are we safe enough? No. Will we ever be safe enough to rest
assured that there will be no further attacks? No, we will not.
This is always the risk that anybody, even a free society as
ours, faces, or especially a free society as ours.
I do think that when one looks at the legitimate reasons
why the terrorist attacks succeeded on September 11, one is
struck by a couple of things. One is the Government pre-9/11
had fully sufficient power to have stopped those attacks. The
Government had in many respects fully sufficient resources to
have stopped those attacks. And that is not necessarily being
over-critical of the Government that we did not stop those
attacks, but simply to say that some mistakes were made both at
the local and at the State, as well as the Federal level.
There were indeed poor policy decisions made, such as in
the Moussaoui case. There was not a legal prohibition on
getting access to Moussaoui's computer, but a bad policy
decision was made by field officials with the FBI, for example.
There were security breaches at a number of locations,
including the aircraft training schools, including license
bureaus, including access to airports and flight facilities and
planes themselves, none of which had to do even remotely with
the expanded powers that the Government sought and obtained in
the PATRIOT Act, and which it also is taking through these
various other programs.
So I think first and foremost, certainly what we ought to
look to in terms of remedying those reasons that account for
why the terrorists succeeded on 9/11 are indeed deficiencies in
preexisting resource allocation prioritization, policy
decisionmaking, and effective and consistent use of preexisting
laws.
I think also, Mr. Chairman, we ought to keep in mind as we
look at your second question, and that is the focus on our
freedoms and traditional constitutional norms in this country--
I believe that we are in danger of rapidly accelerating a trip
down a very slippery slope toward effectively completely
gutting the Fourth Amendment. Now, I know that may sound like
an overstatement, but I truly do worry about this.
When we say to the Government that you take the
authorization to catch terrorists by profiling law-abiding
American citizens, by gathering evidence on law-abiding
citizens and lawful visitors to this country without any
pretext whatsoever that they have done anything wrong, I think
we should say to the Government that doesn't appear on the face
of it to be the most effective or efficient way, or the most
constitutional way to catch terrorists.
I think there are much better ways, much more efficient
ways of going about this than the route of TIA, CAPPS II, the
MATRIX program, and so forth. And if we indeed continue down
that road, I think that we will wake up 1 day in the not too
distant future when the Fourth Amendment has been effectively
rendered meaningless. And at that time, the answer to your
question will not only be, the way the question was posed, no,
we are not fighting this fight consistent with traditional
constitutional norms, but we may be to the point beyond which
we can't even return to those traditional constitutional
rights.
Chairman Hatch. My time is up, but, Mr. Cleary, do you have
additional comments?
Mr. Barr. May I be excused, Mr. Chairman?
Chairman Hatch. Sure, we will be happy to excuse you, Bob.
Thanks for being here.
Senator Leahy. I just was going to say, Congressman Barr, I
will submit questions to you, and among them will be whether
you have seen the Domestic Surveillance Oversight Act which
adds transparency to FISA, the PATRIOT Oversight Restoration
Act which subjects several controversial provisions of that law
to the December 2005 sunset, and the restoration of the Freedom
of Information Act which protects public access to information
regarding our Nation's infrastructure.
I will submit that to you because I want to know, one,
whether you have seen the laws, and, two, whether you support
them.
Mr. Barr. Thank you, and with the Chairman's indulgence,
the answer to both questions is yes, I have reviewed them, as
well as a number of other pending provisions such as the SAFE
Act, and I do support them, including those that the Ranking
Member mentioned.
Chairman Hatch. Mr. Cleary, we will wind up with you and
then we will turn to Senator Leahy.
Mr. Cleary. Thank you, Mr. Chairman. As to your first
question, the strength, no doubt we are better able to fend
off, to detect, and to deter any sort of terrorist attack today
much better than we were before. In large measure, that is due
to two things: one, additional attention given to the problem
by both Congress and the executive branch, and particularly as
it relates to Congress the tools that you have provided which
are set forth in my view of that in my written statement. In
particular, it is the strength of the statutes, the
modernization of the statutes, and the speed and efficiency
that it provides.
As to your second question about respect for civil
liberties, I have no doubt that we can do a better job
protecting civil liberties, and I am heartened to see that this
Committee is focusing on that issue. But I think the important
point, Mr. Chairman, is to identify those particular aspects of
the legislative package that really do need to be changed or
amended.
A lot of criticism I hear about the PATRIOT Act is simply
misplaced. As a simple example, I have read a lot of criticism
about Section 213, the delayed notification search warrant. Law
enforcement has had the authority to seek delayed notification
warrants for time in memorial, so this is no radical change in
the law.
The law is quite clear that there is no constitutional
right to immediate notification. All Section 213 does is codify
the standards, make them applicable around the country.
Chairman Hatch. To terrorism?
Mr. Cleary. That is correct, Your Honor--I mean Mr.
Chairman. I have been hanging out in court too long.
Senator Leahy. That is what all the rest of us call him, I
want you to know.
[Laughter.]
Chairman Hatch. I hate to tell you what they call me.
Mr. Cleary. So the point being that we need to identify
those areas that really do affect individual rights and
liberties in a way that they had not been before.
Ms. Strossen. Is it possible to respond to that
characterization, because here I hear a joinder of issue which
we really haven't had so far?
Chairman Hatch. If you can do it quickly.
Ms. Strossen. Unfortunately, it is not correct that Section
213 merely codifies preexisting power in a number of respects.
Number one, Section 213 applies to any crime, not just
terrorism crimes. Number two, Section 213 allows the Government
to get delayed notice not only in the three specific situations
that had been allowed under prior law, namely if life or
physical safety is threatened, number one; number two, if there
is a danger of fleeing prosecution; number three, a danger of
tampering with or destroying evidence. Instead, Section 213
adds a catch-all provision of any adverse impact to the
Government's interest.
And finally, and very importantly, Section 213 does not
specify a presumptive length of delay. It is an open-ended,
undefined, quote, ``reasonable period,'' whereas the two
circuit courts that had previously upheld this authority had
had a presumptive delay of only 7 days, subject to renewed
showing by the Government.
And this is a perfect example, Chairman Hatch and Senator
Leahy, of why the SAFE proposal is such a safe one, ensuring
safety and freedom, and because it would restore those
safeguards, reasonable safeguards that had existed in prior
law.
Chairman Hatch. Mr. Cleary.
Mr. Cleary. The prior power to conduct sneak-and-peek, like
the 213 power, applied to all crimes, not just terrorism
crimes. So there has not been a change in the law in that
respect. Whether there is going to be a presumptive period that
the courts impose in their interpretation of 213, as was the
case under prior law, is something that has not been determined
yet. So the law is very consistent, with minimal change. There
has been an additional basis to seek a Section 213 sneak-and-
peek warrant, but that is a basis that is available nationwide,
making for consistent application of this important tool.
Chairman Hatch. What is the purpose of the so-called sneak-
and-peek?
Mr. Cleary. The purpose, Mr. Chairman, is so that
investigations do not get compromised if they are continuing
past the time of the execution of the warrant. If a Title III
wiretap is up and running and providing productive information
to the Government but there is a time to execute a warrant, you
don't want to compromise the ongoing Title III wiretap, as an
example.
Chairman Hatch. And you are saying this has been used in
general criminal law for a long time?
Mr. Cleary. Yes, it has.
Chairman Hatch. Senator Leahy.
Senator Leahy. Thank you, Mr. Chairman. I will put in the
record a statement by Senator Kennedy and a number of other
submissions for the record, if I may.
Chairman Hatch. Without objection.
Senator Leahy. I have asked the question, of course, of
former Congressman Barr and I was pleased that he is supportive
of our three bills that I, along with others in both parties,
have introduced--the Domestic Surveillance Oversight Act; the
PATRIOT Oversight Restoration Act, which adds to the sunset
provisions; and the restoration of Freedom of Information Act
to make sure that citizens have the ability in our country to
know what is going on.
The Freedom of Information Act was of particular importance
to me because it has been my experience here after 29 years and
6 different administrations that all administrations, no matter
which party controls the White House, are very eager to send
out reams of press releases when they feel they have
accomplished something which sheds good light on them and will
be politically helpful, and are somewhat reluctant to do that
if it is the other way around.
The Freedom of Information Act has been a chance for the
press and the Congress, but especially the press, to find out
those things that go wrong, as well as those things that go
right. Democracy is better off if we know about the things that
go wrong because then we have the ability to correct it.
Now, Professor Strossen and Mr. Zogby, I am going to ask
you this question. I mentioned earlier in my opening statement
that I am concerned that the United States may be engaging in
the rendition of non-citizens to countries who rely on torture
as a means of interrogating prisoners. We are all well aware of
the Canadian Syrian citizen who was sent to Syria, instead of
back to Canada where he resides.
We all know that torture is a crime. The United States has
always condemned torture. And, of course, we all know that if
you make a couple of exceptions here and there for torture,
then the exceptions become the rule. If the United States is
seen as being complicit in torture, it makes it very difficult
for the United States to articulate a moral position against
torture, whether it takes place in China or Iraq or Chile or
Pakistan or anywhere else.
If an American soldier is captured and tortured now, how do
we say, well, we have always been against this? Or if torture
is justified to obtain information from a suspected terrorist,
well, then why can't we justify torturing the terrorist's
spouse or terrorists' children, or friends or acquaintances of
those who work with a suspected terrorist who might know about
his whereabouts?
A lot of Members of Congress on both sides of the aisle
have criticized other governments numerous times for treating
prisoners that way, and we stand up for the rule of law. So
now, having done that, I understand, Professor Strossen, that
the ACLU filed a Freedom of Information Act request and a
subsequent lawsuit with relevant agencies to obtain general
non-classified information about the Government's practice of
rendition. I have tried to get the same information and have
not been very successful.
Have you been successful?
Ms. Strossen. Not yet, Senator Leahy, and before I answer
that I would like to take this opportunity to say that my staff
expert said I made one misstatement on Section 213, and I want
to correct the record immediately because precision and
accuracy are critical here. It is true, as Mr. Cleary said,
that that power was not previously limited to terrorist cases,
but the other two distinctions stand.
Senator Leahy, we really appreciate your vigorous defense
of FOIA and freedom of access to information, in general,
including with respect to this issue. This is one of many
Freedom of Information Act requests that the ACLU has submitted
since 9/11 in an attempt to get basic information about how our
Government is conducting the so-called war on terrorism.
As you probably know, we have not been successful in
getting answers from the Government to any of those requests
and in some cases have already gone to court. In some cases,
the courts have ordered the Government to turn over the
information. In one such case, the request is now pending
before the United States Supreme Court to get the names of
those hundreds of post-September 11 detainees who turned out,
according to the Inspector General, only to be innocent
immigrants--I am sorry--guilty of immigration violations to be
sure, but hardly guilty of or even charged with terrorism.
With respect to the request that we submitted in September,
Senator Leahy, just this morning I spoke to the lawyer for the
ACLU who is the lead counsel on that case, Jameel Jafir, and he
told me that we have as yet not gotten any information from any
of the Government agencies from which we had sought
information--and by the way, it was information that was sought
based on plausible press accounts, including quoting anonymous
senior officials who not only said that our Government was
rending to countries that are, according to our own State
Department, engaging in torture and other degrading and
inhumane treatment, but also that there were senior officials
who were participating in this knowingly, and perhaps even
encouragingly.
So rather than the general conclusory denials that we have
gotten from the administration which are welcome, that is only
the first step. We are asking for documentation.
Now, when I spoke to Jameel Jafir this morning, I said I
looked at the date of our FOIA request and isn't the
Government's answer overdue? And he said, well, they are always
late. So we are, in fact, contemplating litigation yet again to
enforce what should be turned over under the statute.
I would like to add one other comment about that FOIA
proceeding, Senator Leahy, and that is that the ACLU and the
Center for Constitutional Rights are bringing that together
with not only Physicians for Social Responsibility, but also--I
think this is very significant--two veterans organizations
whose members have fought in every war from the Vietnam War and
earlier to the first Gulf War. They understand better than
anybody else how the lives of American men and women, service
members, are jeopardized, how they are in danger of being
tortured themselves.
Senator Leahy. I understand that and I appreciate it. I am
sorry to cut you off, but certainly you will have time to add
more. But in the time available, I did also want to ask a
question of Mr. Zogby, who is, as we know, the respected head
of a highly regarded organization. I ask you this question, Mr.
Zogby, because you are in contact with people throughout the
Arab and Muslim world.
How do you believe that citizens in predominantly Muslim
nations are going to react if they find that it is true that
the United States sent back an individual to Syria for
interrogation? The citizen was allegedly tortured while he was
detained there. What is that going to do to our image overseas,
especially in the Muslim world?
Mr. Zogby. Thank you, Senator. I am very troubled about
this because not only in the case of the Syrian Canadian
citizen who was sent to Syria for them to get the information
from him that we apparently wanted, but it appears that on a
number of levels we have moved in a very different direction.
There are reports from Afghanistan and Iraq that we may be
sliding down the slippery slope ourselves of using cruel,
inhumane and degrading treatment of detainees, and/or of
civilians whom we treat in a manner equal--something that can
be characterized as collective punishment in order to get their
relatives to turn themselves in or to get information from them
about their relatives. I am concerned about that.
I am concerned about the cooperation that we have had with
several countries in the Middle East, Israel and Arab
countries, accepting intelligence information from them that we
know was derived by means that we in the past have found
unacceptable.
The problem exists on two levels. Certainly, there is the
public opinion level that you have raised, and I find that
worrisome and I am hearing it. But I am also worried about the
impact it has on the leadership level because, in fact, they
feel we have now joined the club.
Senator Leahy. On the leadership level. You mean the
leadership of these other countries?
Mr. Zogby. Of countries in that region. We have now joined
the club. We validate what they have always done. So if
President Bush is right, and I believe that he was when he
noted that reform and advancement of human rights and
democratic rights is critical in the war on terrorism, I
believe that practices such as these undercut the fundamental
truth in that message.
We validate practices on the one side that the President is
criticizing on the other side, and so we set back the movement
for reform. That is the detriment of our overall program; it is
to the detriment of our values that we have sought so
intensively to project in the world. I think that it harms our
country and it harms our ultimate goal of combating terrorism
by promoting reform and a democratic agenda.
Senator Leahy. Thank you.
I notice my time is up, Mr. Chairman. I do have other
questions, especially about national security letters and I
will submit those to Mr. Dempsey. I am especially curious about
those that may be given to everybody from a real estate agent
to a car dealer and effectively shut down their business.
Thank you.
Chairman Hatch. Thank you, Senator Leahy.
Senator Kyl.
Senator Kyl. Thank you, Mr. Chairman.
Part of the problem that I think we have here--and I
appreciate the effort of some of you to find joinder on
specific issues because at the end of the day, as legislators,
we are going to have to come together and refine the law, if
that is called for--but part of the problem in doing that is
the kind of political climate that has been created by
hyperbole and, shall we say, over-zealous language.
All of you represent respected national organizations or
are associated with the enforcement of the laws and therefore
clearly appreciate how important it is to be precise as lawyers
and to try to keep the debate from rubbing the raw emotions
that are so close to the surface on this particular issue.
There are several examples that I could point to here, but
let me focus a little bit on the ACLU because it has a
reputation as a respected and careful organization. I think in
your testimony today, Ms. Strossen, you have certainly tried to
do that, but I note on the website, for example, at least
according to the extract that has been provided to me here for
high school and college students, www.stopthepatriotact.org.
``Stop the PATRIOT Act''; the title itself, it seems to me, is
not designed to encourage a fair debate and careful
examination.
According to the website, you claim that Section 802 of the
PATRIOT Act, and I am quoting now, ``broadly expands the
official definition of terrorism, so that students groups that
engage in certain types of civil disobedience could very well
find themselves labeled as terrorists,'' end of quote.
It is my understanding that under Section 802, a protester
can only be said to be engaging in domestic terrorism if he or
she partakes in criminal wrongdoing that could result in death.
So the question I ask you is whether that is a fair statement
or whether it encourages this kind of hyperbole that prevents
the kind of careful discussion that I think we need to have.
Ms. Strossen. A very fair question, Senator Kyl, and as you
can tell from comments I have already made today, I take great
pride in the carefulness of my organization, which depends for
its credibility on not overstating. That is why Senator
Feinstein received an answer that we did not know whether the
PATRIOT Act was being abused in California.
First of all, I would say please do not judge any
organization by the name of the website. Obviously, that is
overly simplified, and as you could tell from the content of
the website itself, it was not calling for a repeal of the
PATRIOT Act. Al Gore did that. The ACLU and its website did
not.
We have always listed a number of specific provisions that
are troubling and have troubling implications. Section 802 is
one of them. By the way, Congressman Bob Barr's written
testimony, as well as my written testimony, give specific
examples that are of concern, in Bob Barr's case specifically
to conservative organizations in the right-to-life movement and
gunowners' movement. Let me tell you the exact language.
Senator Kyl. Can I just note that we only have a very
limited amount of time, so if you could answer my question, I
would appreciate it.
Ms. Strossen. Here is the exact language: ``Domestic
terrorism means activities that involve acts dangerous to human
life, that are a violation of the criminal laws of the United
States or of any state, and appear to be intended to influence
the policy of government by intimidation or coercion.''
So if you have a student group--let's use Bob Barr's
example that it is a pro-life student group that is engaging in
an activist tactic of exercising its First Amendment rights
outside of an abortion clinic, engaging in some scuffles with
members of the public that are trying to enter or exit from
that facility. As we know, some of those organizations have
done that. It could be dangerous to human life.
Senator Kyl. Scuffles are different than threats to life or
danger to life.
Ms. Strossen. Actually, acts dangerous to human life--there
are cars coming in and out of parking lots.
Senator Kyl. I think I make the point--
Ms. Strossen. I hope that a prosecutor--
Senator Kyl. --that you stretch beyond the point of reason,
and names like that and stretching this beyond reason don't
contribute to a careful debate. Some of us up here are willing
to examine some of the legal points that have been made.
Mr. Zogby, with all due respect, you are a person whose
views are respected in this city, but when you refer in your
testimony to John Ashcroft's Justice Department, it is not in a
respectful way. It is a way that he is referred to by people
who don't respect him.
Ms. Strossen. Senator Kyl, may I please respond because we
did make a specific proposal that I think would be consistent
with your concept and the general concept of terrorism? That
would be an intent to harm human life or endanger human life.
This talks about ``involve acts that are dangerous and that
appear to be intended''--
Senator Kyl. If I could make the point now, it was that
your website is inciting people to opposition in an
inappropriate and emotional way. You may have recommended very
sensible solutions. It would be far preferable to suggest on
your website that there may be a potential danger with wording
of a definition of terrorism rather than suggesting to students
that their activities in civil disobedience could characterize
them as terrorists.
The reason I make this point is that the ACLU has been such
a leader in trying to prevent the chilling of the expression of
First Amendment.
Ms. Strossen. Thank you.
Senator Kyl. And yet this kind of hyperbole will chill
students from engaging in activity that would clearly not be
defined as terrorism because of the way you have expressed it
on your website.
Ms. Strossen. Well, our concern is that the language of the
Act is hyperbolic, and I hope that we are inciting students to
exercise their First Amendment rights to lobby for the kinds of
reforms to this law that we are advocating.
Senator Kyl. Let me cite a couple of other examples. You
talk about invading--``the Government has knowledge using
delayed notice and search warrants to invade dozens of homes
and businesses.'' Now, getting a court-ordered search warrant
doesn't fall into my definition of invading a home.
When you talk about the ability of the FBI to enter mosques
and political meetings on a whim, out of curiosity, I think you
would have to agree that if you look at the wording of the FBI
guideline, that is hyperbolic.
Go ahead and respond.
Ms. Strossen. With all due respect, I disagree. First of
all, I do completely agree that if the Fourth Amendment, with
its requirements of probable cause and a search warrant issued
by a neutral and independent magistrate, were adhered to, that
is fantastic. That is an A-plus from a civil liberties point of
view.
But we don't even have a requirement of individualized
suspicion under many of the powers that we are complaining
about in the PATRIOT Act. And the most important case in
point--we keep coming back to it--is Section 215 which requires
even less than relevance. All the Government has to do is
assert that it is seeking the information for a terrorism
investigation and the judge must issue the warrant. Worse yet
is Section 505, which Senator Leahy began to refer to, which
doesn't require any judicial participation at all. It is simply
unilateral action by the Government itself.
Senator Kyl. Going to a public place in which there is no
expectation of privacy, is that not correct?
Ms. Strossen. That is not correct, sir. Section 215 applies
to any record that is held by anybody, anywhere, and Section
505 refers to certain kinds of records, regardless of where
they are held, but typically by financial institutions and the
other specified businesses. So it would be private business
premises.
Senator Kyl. I thought you were talking about the FBI
guidelines.
Ms. Strossen. And the FBI guidelines--yes, thank you--also
what they do is turn back the prior guidelines that had been
put in place since Congress's investigation and hearings into
the COINTELPRO abuses.
Senator Kyl. So you defend the ``whim and curiosity''
portrayal?
Ms. Strossen. Unfortunately, it can be any reason. No
reason is required.
Senator Kyl. And you also defend the characterization of
search warrants to invade--this is a court-ordered search
warrant--to invade dozens of homes and businesses? That may be
a minor point, but language matters.
Ms. Strossen. If what you are talking about is 213, which
is a court-ordered search warrant, it is an invasion in the
sense that the time-honored requirement of knocking on a house
before you enter it is no longer applicable.
Senator Kyl. I understand you are defending the language
still.
Ms. Strossen. I am.
Senator Kyl. Let me ask, does anybody here believe that the
PATRIOT Act, as distinguished from other Government policies,
because this is where confusion--and I appreciate some of you
pointing out that confusion--that the PATRIOT Act essentially
suspends habeas corpus? Does anybody believe that that is true
on this panel?
Let the record reflect nobody is answering that question in
the affirmative.
Ms. Strossen. I certainly am concerned about what remains
of habeas corpus, which unfortunately had been gutted through a
series of Supreme Court decisions and prior legislation.
Senator Kyl. The PATRIOT Act, not other Government policies
that we are talking about, the PATRIOT Act itself.
Ms. Strossen. Other Government policies certainly
contributed.
Senator Kyl. But my question is does the PATRIOT Act
essentially suspend habeas corpus.
Mr. Dempsey. There is nothing in there one way or the
other.
Chairman Hatch. I didn't hear you.
Mr. Dempsey. There is nothing in there one way or the
other.
Senator Kyl. Thank you.
Mr. Zogby. Senator, before we leave, did you throw my name
out on a whim or was there something there?
Senator Kyl. I didn't throw it out. I specifically referred
to you, though, and if you would like to respond, you are very
welcome to do so.
Mr. Zogby. I don't quite get what the point was.
Senator Kyl. What I was trying to say--
Mr. Zogby. I mentioned John Ashcroft's Department of
Justice--
Senator Kyl. Yes, yes, you did.
Mr. Zogby. --as opposed to Janet Reno's Department of
Justice, as opposed to the career officers who serve in that
department, and FBI and law enforcement officials who serve
throughout successive administrations, et cetera. It was a
descriptive term, meant nothing more, nothing else.
Senator Feingold. Mr. Chairman, I want to agree with Mr.
Zogby on this. I know it is out of order, but there is
absolutely nothing wrong with referring to John Ashcroft's
Justice Department. The only error is you should have called it
what it really is, George Bush's Justice Department. That is
what it is. That is the only error.
Chairman Hatch. Now that we have that clear--
[Laughter.]
Senator Kyl. I appreciate the clarification on that. Thank
you, Mr. Chairman.
Chairman Hatch. Mr. Cleary, you had some comments. Mr.
Dempsey, you had some comments. Mr. Dinh, you had some
comments. Let's go in that order.
Mr. Cleary. Thank you, Mr. Chairman. I just wanted to talk
about Section 215 briefly, which is another section people have
talked about here today that I think misses the point of where
our attention should be focused. Our attention should be
focused on civil liberties issues. This is not one of them.
What 215 does is it allows the FISA court to issue an order
seeking the production of tangible things, and this has become
in the popular media a concern about library records, what are
people doing in the library. All this statute does with respect
to libraries is allow the intelligence community to do what
criminal investigators have done historically, and that is to
obtain library records.
Chairman Hatch. In libraries?
Mr. Cleary. That is correct, and as one case in point I
would point back to the Unabomb investigation.
Chairman Hatch. You actually tried that case for the
prosecution?
Mr. Cleary. That is correct, Mr. Chairman, and those of you
who may remember, Theodore Kaczynski sent what became known as
the Unabomb Manifesto before he had been identified. That
manifesto identifies or quotes from a number of books and one
of the things the investigators did, with a subpoena, is go to
the local library in Lincoln, Montana, and find out that
through an exchange program run by that library, a fellow named
Theodore Kaczynski had checked out a number of those books, and
that became a large part of the probable cause showing that was
used to get the search warrant to search Kaczynski's cabin and
the rest is history.
I use that as one very dramatic example of how historically
the Government has been able to obtain records from libraries
and should be allowed to do it. That is with a grand jury
subpoena where there is no court oversight. What 215 does is
provide for an order for similar sorts of records, but
pursuant, and only pursuant to the FISA court's oversight.
Chairman Hatch. Thank you.
Mr. Dempsey and then Mr. Dinh.
Mr. Dempsey. Well, Mr. Chairman, there are several points
that could be responded to here. Let me just for a second
respond to a question that Senator Kyl raised which has to do
with the FBI guidelines.
The language of the guidelines says that for the purpose of
detecting or preventing terrorist activities, the FBI is
authorized to visit any place on the same terms and conditions
as members of the public generally. Now, as a guideline, this
gives no guidance. It doesn't say how to prioritize, it doesn't
say how to focus investigative activities, it doesn't say what
to do. It says that an FBI agent can do whatever a member of
the public can do, which is you are walking down the street and
you say, oh, there is a nice interesting building, nice
architecture, let me walk into it. I think that is a whim.
Now, I don't think that this serves the national security
interest of telling FBI agents how, given limited resources and
a terribly overwhelming problem, to focus their activities,
where to go, when to go, how to decide what to do. So they are
left rudderless.
The fear, of course, is that they will be guided by
inappropriate factors such as ethnicity, religion, political
factors, et cetera. But even leaving those aside, the
guidelines provide no guidance, and in that sense I think they
need to be revisited.
Chairman Hatch. Mr. Dinh, and then we are going to go to
Senator Biden.
Mr. Dinh. Thank you, Mr. Chairman. On that very quick
point, the Attorney General's guidelines are guidelines; they
are not exclusive of all the various training procedures and
supervision that the Department of Justice imposes on, and the
FBI internally imposes upon its own personnel with respect to
they conduct investigations.
This merely states very clearly that for purposes of
terrorism investigations, the FBI agents have the same
authority as any community police officer does in order to be
on the same terms and conditions as general members of the
public.
Two other clarifications. Section 802, it must be pointed
out, is not a substantive provision; it is merely a
definitional provision. It amends, it adds to Section 2331 of
Title 18 of the United States Code a definition of domestic
terrorism; that is, terrorism that occurs within the
geographical boundaries of the United States.
The reason that was necessary was prior to the USA PATRIOT
Act, the only definition of terrorism was international
terrorism; that is, terrorism that occurs outside the
geographical boundaries of the United States. It is meant to be
a geographical description, not a purpose or an intent
provision.
And even so, when this Committee considered the provision,
it was very careful. It did not import the previous definition
of international terrorism lock, stock and barrel. But, rather,
the definition of international terrorism is violent acts or
acts dangerous to human life that are a violation of the
criminal law of the United States or States of the Union.
When the Committee considered that definition, it removed
the phrase ``violent acts'' precisely because of a fear of
potential chilling or overreach into acts occurring in the
geographical boundaries of the United States that might
otherwise be protected by the letter or the spirit of the First
Amendment.
Let me repeat, it does not criminalize domestic terrorism.
Rather, it gives a definitional base for other crimes, most
significantly, for example, Section 805, which is terrorist
financing. Without that definition, it would apply to terrorist
financing that occurred outside the geographical boundaries of
the United States, but would stop when the boundaries of the
United States take hold. I think it is simple common sense in
order to extend that definition. It is also very careful work
by this Committee to protect the interests of the First
Amendment in that regard.
The mischaracterization has been endemic on this provision.
I want to be very, very clear. Even very, very distinguished
scholars, one of them my beloved colleague, Sam Dash, have made
the same mistake in other places. And it just suggests it is
not an error of characterization, but simply a fundamental
error of misunderstanding that I think should be corrected.
Chairman Hatch. Senator Biden, Mr. Zogby wanted to make one
comment and then I will go to you.
Mr. Zogby. Just one comment to Senator Kyl.
I agree with you, Senator, about the need to use temperate
language and to avoid overladen rhetorical expressions and
emotionally-driven language that can be very damaging to this
political discourse. It is an important discussion.
But I would suggest to you that there have been repeated
hearings that I have taken note of on very sensitive issues
close to this discussion about the nature of Islam, about
Wahabbism, about Saudi Arabia, and about Muslims in America
that have frequently featured individuals who have used
rhetorical excess, who have not helped us better understand
these phenomena, and who frankly have had a political agenda
designed specifically to obfuscate and, I believe, to inflame
passions.
And I would urge you, let's make this a two-way street.
Let's have a temperate discussion. Let's come to an
understanding of where we are, what we need to do, and how we
have to proceed to better understand each other so that we can
better serve, I think, our collective goal of making our
country more safe, secure, respected, and understood.
Thank you.
Chairman Hatch. Thank you.
Senator Biden.
Senator Biden. Thank you very much, Mr. Chairman, and thank
you for holding the hearing. I am going to try to see if I
understand whether there are any points of general agreement
here among all of us first.
I might note that I--and I will say this for the record,
but I have said it before, that a lot of the difficulty and a
lot of the misunderstanding, to the extent there is any, I
think is a consequence of the attitude of this administration,
not merely actions, but the attitude of this administration of
not being responsive to, in my view, this Committee.
I know the Chairman is a good man. Just as I might find
myself when I was Chairman--and thank God, I am not anymore--
when I was Chairman of this Committee or Ranking Member for 18
years, when you have an Attorney General of your own party, you
try to be helpful if you can even when you disagree. I am not
suggesting the Chairman disagrees, but I found myself in that
spot once in a while.
There has been not a whole lot of disclosure. There has not
been a whole lot of cooperation and there has been an attitude
of arrogance that has emanated from this administration with
regard to this legislation. I think that feeds into some of the
necessary corrections that need to be made in the PATRIOT Act.
I have been a Senator for 31 years. There is not one major
piece of criminal legislation in the last 21 years that I
haven't cosponsored or written, and every time we pass one I
say the same thing. This requires us to go back and look at it
after a year or so. We make mistakes.
So if we had the normal oversight of this, with cooperation
in a very tenuous time, at a time when it is not surprising
that there are excesses in American society on the part of
Government--and I know it is an old saw, but Franklin Roosevelt
took every Japanese American and put them behind barbed wire.
So bad things happen when very bad things happen and people are
frightened. That is why we are here, for oversight. That is the
purpose, and that is why some of this was sunseted as well.
But if I read through this, the bulk of--don't be
defensive, either side of this debate--the bulk of the most
egregious mistakes made on the part of our Government, I sense
from all of you, are things that occurred unrelated to the
PATRIOT Act. So let's kind of put this in context. It doesn't
mean the PATRIOT Act shouldn't be scrapped or altered or
amended or touched, but the bulk of the things that have caused
us the worst--I have changed seats; I am now on the Foreign
Relations Committee as the senior Democrat. I can tell you that
Guantanamo Bay has done more damage to the United States image
abroad than anything else that has happened, anything else that
has happened.
Without passing judgment on whether we should or shouldn't
have had Guantanamo Bay, the fact of life is as I travel the
world, no matter where I am, this is brought up. I think it has
endangered American soldiers. I think it has endangered the
American military. I think it has endangered American
diplomats. I think it has endangered American personnel. So you
can see the effects of it in non-judicial ways, in non-legal
ways just in terms of the perception of who we are.
I think there is an absolute need for us to redefine, for
Congress to exercise its responsibility, as Schiff has in the
House, and as some of us over here--Durbin, Feingold, and
others have talked about redefining or defining, laying out
definitional criteria for what constitutes a combatant and a
whole lot of different things. That is our responsibility, and
history is going to judge us on not that we didn't do it within
a year or two, but if we don't get about doing it pretty soon.
So we are still within the time warp that it takes big nations,
like supertankers, to turn around here, and hopefully we will
do that.
I want to now move to the PATRIOT Act to make sure I
understand, again, if there is any consensus. We are basically
talking about--and when I say basically, it doesn't mean it is
inconsequential. We are talking about a disagreement relating
to basically three sections of the PATRIOT Act--213, the
delayed notice provisions; 215, FISA and the changes in FISA
that are accommodated in this Act, and there are changes; and
802 in terms of definitional, whether, A, it is a definition,
what its meaning is, and if it is a definition, whether it can
be further refined, or go back behind it to 2331 and redefine
it.
So the arguments are who are terrorists; if there are
terrorists, if it is a suspected terrorist, what constitutes
the ability for a court to allow delayed notice and the fact
that you have gone in and impacted on their Fourth Amendment
rights; and whether or not FISA, in fact, has been expanded in
a way that is a problem.
Now, as the author of FISA, I find myself in an interesting
dilemma here, and that is that I suspect, Professor, you don't
like FISA, period. So part of your criticism, which is totally
legitimate, by the way--I am not in any way impugning anyone's
motive here, okay?
You are not for FISA, period. You don't think there should
be FISA.
Ms. Strossen. Well, actually, I consulted with my staff
experts to see whether my instinct was right, which was that it
was better than the prior law which it corrected.
Senator Biden. But you still don't like it. It is okay. A
lot of people don't like it.
[Laughter.]
Ms. Strossen. We love the Fourth Amendment.
[Laughter.]
Senator Biden. Look, I will be candid with you if you are
candid with me, all right?
Ms. Strossen. We prefer the Fourth Amendment.
Senator Biden. It is time to be straight up about this,
right?
Ms. Strossen. As you know, it was a compromise on both
sides, and I think it was a workable compromise.
Senator Biden. I know. I wrote it. I am the guy that wrote
it. I understand the compromise, and I understand my usual
allies in the civil liberties community were opposed to it,
period. So let's not kid each other here, all right?
So part of the problem is not merely whether or not FISA
has been--my first question is if we amended FISA like I think
we should, as Senator Feingold has suggested--and I happen to
think he is right--to essentially take FISA and bring it back
to the standard required prior to the PATRIOT Act, would you be
for it, then?
Ms. Strossen. We would certainly support that.
Senator Biden. Okay.
Ms. Strossen. That is in the SAFE Act; it is in several
other Acts.
Senator Biden. Would anybody else who is opposed to the
PATRIOT Act think that is--let me back up. For those of you who
believe, with good reason from your perspective, that this Act,
the PATRIOT Act, per se, has a chilling effect and it is a bad
idea, et cetera, is there anything other than repeal of the
Act, total repeal, that would satisfy you in the sense that you
would say I now support the Act, other than total repeal?
I am not being a wise guy. I am trying to get the
parameters here so we know what we are talking about.
Ms. Strossen. Well, Senator Biden, I could say that in
addition to the three reforms that you referred to, there is an
additional one in the SAFE Act itself, which is constricting
the roving wiretaps authority, which now do not have safeguards
to protect against sweeping up conversations by innocent
people. So that is one more reform.
Senator Biden. Again, I am the guy that proposed the roving
wiretaps in previous legislation.
[Laughter.]
Senator Biden. No, seriously, and Orrin and I worked on
that because it was about organized crime.
Ms. Strossen. And we are not saying repeal it. We are
saying amend it slightly.
Senator Biden. That is what I am trying to get at.
Ms. Strossen. And the two amendments would be, number one,
that there be a requirement that law enforcement ascertain that
the target of the wiretap is actually using the communications
device that is going to be wiretapped.
Senator Biden. I don't think that is an unreasonable
suggestion.
Ms. Strossen. Exactly.
Senator Biden. I don't think that is an unreasonable
suggestion, but again I am trying to understand. The worst of
all things would be--and I will end in a second, Mr. Chairman--
is that we go through all of this and assume for the sake of
discussion we make the bulk of these, what I would call tweaks,
refinements, changes, alterations--and I must tell you,
Professor, I have been most impressed by your testimony.
Ms. Strossen. Thank you.
Senator Biden. And you support the Act, but you acknowledge
what the real underlying debates here are. There are real civil
liberties questions here.
Ms. Strossen. But they are relatively apart from the
national security concerns which have been raised by the
Government.
Senator Biden. Well, again, what I want to make sure of is
if we go through this exercise and we amend it along the lines
that are being discussed here, are we still going to have--and,
Mr. Zogby, I have great respect for you, and I really mean
this. I think that not only the Arab American community, but
all Americans are indebted to you because of your prominence
and your willingness to take on and speak up at a time other
folks in your profession might view it as damaging to their
interest to do so. So we owe you lot.
But my guess is you are not for this Act, period, no matter
how we change it, because it has a generic chilling effect. Is
that right?
Mr. Zogby. No, Senator, we have actually not said that at
all.
Senator Biden. Well, I am not arguing. I am just trying to
figure it out.
Mr. Zogby. Let me just be clear. We have not said that. We
have been very careful not to say that.
Senator Biden. Okay.
Mr. Zogby. We have not supported those who have used
language that has gone above and beyond where we feel the
discourse ought to go. We support the SAFE Act and we feel very
strongly that there is a legislative fix that is possible and
we are looking for ways to accomplish that.
Senator Biden. Okay.
Mr. Dempsey. Senator, if I could?
Senator Biden. Yes, please.
Mr. Dempsey. Just speaking for the Center for Democracy and
Technology, my organization, we do not, in principle, oppose
the PATRIOT Act. We don't oppose FISA, in principle. We don't
oppose Title III, we don't oppose roving taps. As I said in my
opening remarks, I believe that the extension of roving tap
authority to intelligence investigations made perfect sense.
The addition of other Title III predicates in the PATRIOT Act
made perfect sense. It was to some extent overdue.
We have proposed a series of very specific amendments. I
think I can categorically say that there is not in the PATRIOT
Act a single grant of power to the Government and not a single
provision in the PATRIOT Act that deals with a Government power
where we oppose that Government power.
Senator Biden. Good.
Mr. Dempsey. All we are talking about here are the
standards. And as you said, in the emotion and time pressure of
the moment, some mistakes were made. We can have a legitimate
debate about what should be the standards for delayed notice.
Senator Biden. Good. Again, I am not in any way being
critical of any of you. I am just trying to make sure I
understand the place from which we can all agree to start. Some
of you will say we start there and stop there, and others
suggest we go beyond.
That is a very helpful statement for you to make that none
of the powers granted in here to the Government are, per se,
from your perspective, Mr. Dempsey, bad, if you will. I have a
lot of questions. I will cease and desist now, except to say to
you I find this very helpful.
Mr. Chairman, this is a lousy thing to do to you, but I
really think that we should consider, at a time when we are not
in session and Mr. Ashcroft has no excuses and we don't either,
to have extensive hearings here maybe in December on this very
issue. We have done that on every important thing before. We
did that on the crime bill, we did that on a lot of other
things.
This is the time to maybe work through what I am most
concerned about and what Mr. Zogby said, and that is working
through left, right, center, the misconceptions, the hysteria,
the political agendas. I am not talking about any one of you at
the table, but just to get to the American people, through
serious hearings and disclosure by the administration as to
what they are doing and not doing, what the problems are.
Ms. Strossen. Senator, I think that is so constructive and
if it could be focused section by section, as opposed to just
the PATRIOT Act.
Senator Biden. I agree. Anyway, I thank you and I yield the
floor.
Chairman Hatch. Senator Feinstein.
Senator Biden. Mr. Zogby wanted to say something.
Mr. Chishti. Can I just add one comment to Senator Biden's
question?
Chairman Hatch. Let's take Mr. Chishti first and then Mr.
Zogby.
Mr. Chishti. I just want to say that I think it is
appropriate that we should hold hearings not just on the FISA
issue.
Senator Biden. I mean on the Act. I didn't mean just FISA,
across the board.
Mr. Chishti. But I think, more than the Act, as you said in
your initial statement, most of the acts of the Government,
especially in the immigration realm, have taken place outside
the USA PATRIOT Act.
Senator Biden. I agree.
Mr. Chishti. So, therefore, it is important to have
oversight hearings on those issues as well.
Senator Biden. I agree, I agree.
Mr. Zogby. And I think that is the point I was going to
make, is that for clarity sake it is important to recognize the
PATRIOT Act to become a symbol for all of those other concerns,
all of those other fears.
Senator Biden. Which is exactly what it has become.
Mr. Zogby. And therefore to make, I think, the political
discourse more meaningful and more temperate, it is important
to sort of separate those out and be able to criticize what
needs to be criticized and protect what needs to be protected.
I think that that would help us a lot.
Senator Biden. You have said it more succinctly and in a
more articulate manner than I attempted to say it. That is the
entire purpose, because we end up having speeches by friends of
mine and political allies of mine that it is all under the
rubric of the PATRIOT Act. If you walk out there and
constituencies that support me--everything is under the rubric
of the PATRIOT Act, and it is not because people are trying
to--they are just not informed. We haven't delineated the
problems and separated them out, and then begun to address each
one of them ad seriatim here, which I think we have to do.
Anyway, I thank you. I apologize, Mr. Chairman, for going
on.
Chairman Hatch. That is fine.
Senator Feinstein.
Senator Feinstein. Thank you, Mr. Chairman.
Chairman Hatch. I have to be through here in a short time,
so I hope we can stay within the ten minutes, and that is
longer than I really can stay.
Senator Feinstein. I may be the only one that feels this
way, but I still believe there is a great deal of confusion
about the PATRIOT Act. I mentioned that at a previously hearing
I had received over 21,000 letters, e-mails, post cards, and
the like about the Act and related issues. Since that hearing,
the number has risen 2,000. And we still have calls against
PATRIOT II, a draft bill that has never actually been
introduced. We have also had calls supporting the SAFE Act,
which my colleagues have introduced, and we have now about
1,300 against the PATRIOT Act, but they are all very non-
specific.
To a great extent much of the criticism relates to the
national security entry-exit registration system, known as
special registration, which Professor Strossen mentioned. That
comes through in the critics that I have heard from.
And then I was listening to others and they were saying
that the Department of Justice Office of Inspector General had
found 34 specific abuses of the PATRIOT Act, and you mentioned
them as well, Dr. Strossen. So I wrote a letter to the IG, Mr.
Fine, on November 12 asking for clarification of that and he
sent a response back to me, and I think it is important that it
be read in the record. It is a letter dated yesterday.
``In your letter, you asked whether any of the complaints
investigated by the OIG pursuant to Section 1001 of the PATRIOT
Act involve an abuse or violation of a specific provision of
the PATRIOT Act. The 34 allegations to which we refer in our
July 1903 semi-annual report do not involve complaints alleging
misconduct by Department of Justice employees related to their
use of a provision of the PATRIOT Act. As we discussed in our
report, we received several hundred complaints from individuals
alleging that their civil rights or civil liberties have been
infringed pursuant to the directives of Section 1001 of the
PATRIOT Act. We reviewed those complaints,'' et cetera.
``These allegations''--and I think this is the key--``range
in seriousness from alleged beatings of immigration detainees
to verbal abuse of inmates. They generally involve complaints
of mistreatment against Middle Eastern or Muslim individuals by
the Federal Bureau of Prisons, the Federal Bureau of
Investigation, or the Immigration and Naturalization Service.
We detailed the specific complaints in our semi-annual reports
to Congress and used the label `PATRIOT Act complaints' because
we received, investigated them, et cetera, under Section 1001
of the PATRIOT Act.''
Every time I try to zero in on an abuse specific to the
PATRIOT Act, it disappears before my very eyes. So I have come
to the conclusion that most of the criticism that is out there
is really not specifically related to the PATRIOT Act, but is
related to a whole host of other things--special registration
provisions, special searches that are done under other
authorities, et cetera.
Now, having said that, being a non-lawyer on this
Committee, I spend a lot of time reading about terrorism and
terrorists, and I go back to Ramzi Yousef and his encrypted
computer which had details of a plot to destroy 11 airliners on
it, to reports in the public press about there being the
possibility of operatives in this country designed to carry out
a second wave of attacks to 9/11. You recognize that you have
to provide the wherewithal for domestic intelligence to
function if you are going to get at the terrorist threat, and
that is really what the PATRIOT Act is designed to do.
I have heard enough reported in the public press to be
concerned that there may well have been a second wave in play
after September 11. And if there are people out there, the
question, I guess, I would ask each of you is do you not want
to get at them before they at us in a big way, and can we not
do this through this Act.
Senator Feingold and I were just talking about section 215
and perhaps giving the judge more flexibility to deny a FISA
application under that section 215 instead of making it so kind
of cut-and-dried. But I want intelligence to respect the civil
liberties of people residing in this country, but at the same
time to have the ability to properly function and have enough
clout to be able to get at what may be out there.
Would you respond to that? Let me hear from Mr. Dinh
because, Professor, you have been very articulate.
Mr. Dinh. Thank you very much, Senator Feinstein. I will
limit my comment to public press reports, as you have,
regarding the terrorist threat because I do not want to do
anything untoward with respect to our classifications.
There have been reports of multiple phases following
September 11, and I think that the fact that none of these
phases have hit in the territory of the United States is a
great tribute to the men and women of law enforcement, and in
particular the men and women of State and local law enforcement
who are our eyes and ears on the ground, and the men and women
of intelligence who provide the basic information upon which
law enforcement can take action.
The key to that is, as you noted, both the intelligence and
the action, actionable intelligence. We are no longer in a Cold
War world whereby nation states watch each other and try to
determine their bargaining positions at key rounds in order to
look for deterrence purposes, but rather we are dealing with a
world whereby a relatively small number of people with
relatively little resources can inflict incredible catastrophic
damage on nation states.
And so the key is not simply to get information, to get
intelligence for the sake of intelligence, but rather to
transfer and take action based upon that intelligence, and, God
help us, to interrupt terrorism before it happens before the
terrorists act without the restraint of a nation state.
I think that, in particular, Section 218 of the USA PATRIOT
Act provides us with the critical tools in order to facilitate
that process of collaboration and information-sharing. Much
more needs to be done to change the culture to encourage such
functional cooperation and collaboration, and perhaps the
shift, which is a very significant shift in the nature of how
intelligence does its business and how law enforcement does its
business--the experience may suggest to us better ways in order
to make this happen so that we get the full benefits of such
coordination without any danger of returning to the days of
COINTELPRO. I think that this Committee's work is very, very
important in that regard.
Mr. Dempsey. Senator, I think--
Senator Feinstein. Before you answer, may I ask that you
place this letter of November 17, Mr. Chairman, in the record
before I forget?
Chairman Hatch. Sure, I will be happy to do that.
Senator Feinstein. Thank you.
Yes, sir.
Mr. Dempsey. Senator, there should be no doubt that there
are people today planning terrorist attacks against innocent
Americans. I don't think any of us should doubt that there are
people in this country today doing that, and those attacks may
involve biochemical or nuclear materials.
But before 9/11, our intelligence and law enforcement
agencies were drowning in information. They knew two of the 9/
11 hijackers had been spotted in Southeast Asia. They flew on
those airplanes on September 11 under their own names, and yet
the CIA had failed to get that information to the FBI and the
INS in time. There was absolutely no legal barrier to sharing
that information from the intelligence agencies to the law
enforcement and immigration agencies.
Senator Feinstein. Which the PATRIOT Act enables now to be
shared.
Mr. Dempsey. Actually, Senator, no, there was no barrier to
the sharing of intelligence information with law enforcement
agencies, and the PATRIOT Act has no provision on the sharing
of intelligence information collected abroad with the law
enforcement agencies. The PATRIOT Act does allow law
enforcement to share information collected under law
enforcement authorities with intelligence agencies. That was
probably a very appropriate and legitimate change, although I
think it should have been subject to more appropriate
safeguards.
The PATRIOT Act also tried to address the question of
coordination, but again there was no prohibition in FISA to
prosecutors and intelligence officers coordinating with each
other. That was really an invention of the FISA court and the
Justice Department, which came up with that really in secret
and the whole thing got totally perverted and did do, I think,
harm to national security without actually serving civil
liberties.
Senator Feinstein. I am sorry. What did harm to national
security?
Mr. Dempsey. The perverted concept of the wall, this notion
that law enforcement officers and intelligence officers within
the FBI and the Justice Department couldn't talk to each other,
which was this rule that had been developed in secret by the
FISA court and by the Justice Department. Attorney General Reno
had actually tried to overcome that.
Senator Feinstein. You will admit the PATRIOT Act lowered
the wall. Whether you think it was there or not, it was there.
Mr. Dempsey. Well, I think that the wall that was there had
been a perverted wall and it could have been lowered without
some of the other changes in the PATRIOT Act. I also think that
to get to these terrorists who undoubtedly are planning these
acts, we need these guidelines and these standards and this
sense of direction and control and oversight.
The last thing we need is a situation in which the
Government draws in yet more information that it can't process;
information that is unfocused and not guided by some reasonable
suspicion and compounds the problem that existed before. What
we are talking about today is what are the appropriate
standards that can guide this vitally crucial activity; what
are the checks and balances and guidelines that will help these
agents do the job they need to do without tying their hands.
Chairman Hatch. If I can interrupt, I am very interested in
your comments and interested in your suggestions on how we
might improve the PATRIOT Act, but that is not my
understanding, Mr. Cleary or Mr. Dinh.
Mr. Cleary. If I may, Mr. Chairman.
Senator Feinstein, you are, I believe, one hundred-percent
correct based on the practical application of what the standard
was at the time. The standard at the time for FISA action was a
primary purpose, a primary purpose being foreign intelligence.
The practical consequence of that was that the Government was
concerned, the law enforcement community was concerned that if
the information the intelligence community was gathered was
shared with the law enforcement community, it would appear to
the FISA court that the investigative technique used in the
intelligence community no longer had as its primary purpose--
the standard they have to meet no longer had as its primary
purpose intelligence-gathering, and therefore the intelligence
community would run the risk of no longer being able to
continue with that investigation.
Senator Feinstein. Thank you, because it was my amendment
that changed it to ``significant purpose.'' So I remember it
well.
Mr. Cleary. Thank you, Senator.
Senator Feinstein. Thank you.
Chairman Hatch. We want to thank you.
Mr. Dinh. Can I make one note here, Mr. Chairman?
Chairman Hatch. Yes.
Mr. Dinh. There has been a lot of focus--and I think Jim is
right that it is not about the information that is collected,
better use of that information that is collected, but much more
importantly, it is also the information that got away.
What we saw with a lot of pre-USA PATRIOT Act operations is
that it is not that the Government's net is not big enough, but
there were holes in it; that is, you could evade by simply
throwing away your cell phone, or in one case anecdotally an
alleged terrorist cell has formed its own Internet service
provider in order to evade the formal processes of CALEA and
other law enforcement authorities.
It is those kinds of evasive maneuvers that are being
exploited that really hampers the ability of law enforcement
and intelligence to create a complete mosaic of intelligence
information. It is not information that we have, but it is
information that we don't have.
Ms. Strossen. Once again, Senator Feinstein, that provision
is not one that has been objected to by the ACLU or any other
organization, the one that allows you to tap multiple cell
phones of a particular suspect.
Senator Feinstein. I think we know that, but I also think
in the eyes of the public it is all confused. That is just one
of the things that is happening out there. Everybody just hits
at the PATRIOT Act and people confuse it with a whole host of
other laws.
Chairman Hatch. Senator Feingold, we will finish with you.
Senator Feingold. Thank you, Mr. Chairman. As everybody has
been pointing out, a lot of the recent discussion about
terrorism and civil liberties has focused on the PATRIOT Act.
The law does raise many concerns, and I do hope that Congress
takes action on some very common-sense proposals to remedy some
of the most troubling provisions.
As I have previously and repeatedly said, there is much in
the PATRIOT Act that I support. In fact, I said right when I
voted against it that I probably support, if you count them all
up, 90 percent of the provisions. But there also are provisions
that I and a growing number of Americans have serious and valid
concerns about.
The American people are increasingly concerned about the
potential for abuse in some of the new powers granted by the
PATRIOT Act. These concerns are not baseless and they are not
based on myths. And I want to take issue with Senator Kyl's
presentation, where he read quotes from the ACLU and others
saying that somehow it is wrong to have a website that says
stop the PATRIOT Act. That is perfectly normal discourse in our
country.
I would note that those websites probably didn't exist
until well after the Attorney General of this country came
before this Committee and said the following inflammatory
thing: ``To those who scare peace-loving people with phantoms
of lost liberty, my message is this: Your tactics only aid
terrorists, for they erode our National unity and diminish our
resolve. They give ammunition to America's enemies and pause to
America's friends.''
Mr. Chairman, this is the real history of what has happened
with the PATRIOT Act. If people have a misconception about what
is in the USA PATRIOT Act, that is our fault. It is not the
fault of the American people. They are not expected to know
every line and every word in a 200- or 300-page document.
The fact is this body scared the American people by rushing
through a document before it was ready. At the time, as you
know, I tried to raise four or five specific concerns, and I
honestly thought that there was a vote that I could vote for
this piece of legislation. Instead, the process collapsed. This
entire significant bill in the history of our country's civil
liberties had only three or four hours of debate, and even my
leader instructed my fellow Democrats to, quote, ``not vote on
the merits of the amendments'' because we had to rush so fast.
That is how we got here. It is not because the American
people are somehow confused or being irrational. It is the
hysterical language and approaches that have been used by those
in advocacy of this bill and their unwillingness to look at
specific provisions and work as we all want to do to change
them that is the real problem.
So I appreciate, frankly, Mr. Chairman, the tone of much of
the conversation today. Senator Biden talked about trying to
identify the specific provisions that need to be changed. I
hope nobody actually answered his question saying if we do this
and this, we are all done. This is a very important piece of
legislation. We don't know how many of these provisions will
work out, but we are in a position now to know that certain
provisions need scrutiny and need change.
In response to Senator Feinstein, who is very earnestly
trying to address her feeling that perhaps some people don't
know exactly what is in the bill, but also showing a
willingness to change some of the provisions, I would urge her
and others to look at the fact that there are provisions of the
bill that we do know are being used. The expanded sneak-and-
peek powers apparently have been used at least in 47 cases.
The administration says that Section 215 has not been used
to access library and other business records, which, of course,
raises the very critical point that Mr. Dempsey has pointed out
that why in heck do we need it if it hasn't been used during
this critical time.
But let me add another point. Under the national security
letters provision, Section 505, it may well be that the
libraries are being contacted for the very same information. So
when the administration says we have never used it, they are
not necessarily telling the whole story. A survey in Chicago
indicated that a number of libraries believe that they had been
contacted in this regard. So perhaps it was under another
provision of the Act, but that doesn't mean it isn't being
used.
The roving wiretaps provisions are almost certainly being
used, although we can't be absolutely sure because of the
secrecy of the FISA proceedings. And I believe a provision that
doesn't get enough attention, Section 217, the computer
trespass provisions, needs serious scrutiny because, as I
understand it, they allow the definition of a trespasser to be
somebody who not only hasn't done anything with regard to
terrorism, but hasn't even committed a crime. All they have to
do is buy a Christmas present on their employer's computer and
they are trespassers and therefore may be subject to this
provision. So anyone who believes that there aren't specific
provisions of the USA PATRIOT Act that are being used and may
be abused is wrong, and I don't want this hearing to go forward
without that conclusion.
But my feeling that is coming out of this is that the
members of this Committee on both sides of the aisle actually
do genuinely want to do what should have been done in the first
place, which is to find those provisions that we know may be a
problem now and fix them, especially provisions that the
administration itself isn't even using. It is a great time to
fix it, before anyone has been harmed by it. But even in cases
where they may be harm, this is the opportunity to pass some
legislation.
So I do appreciate this hearing, Mr. Chairman. I think it
is important and I think we are moving in the right direction
on this issue.
Mr. Chishti, in response to the criticism of the round-up
of over 750 men, almost all of whom were either Arab or Muslim
and who were detained on immigration violations in connection
with the September 11 investigation, the administration has
said that its conduct was justified because each of these
individuals had broken the law and was simply enforcing the
immigration laws.
How do you respond to that?
Mr. Chishti. I think that it is fair for them to say that
they were enforcing the immigration laws. I think the point we
are trying to make in the context of this hearing is that we
should see what the aim and the goal of the post-9/11
immigration initiatives were.
If the administration would come to announce that we are
going to initiate a new campaign to deport people who have
stayed beyond their authorized visas, there would not be a
question. The point was that these actions of the Government
and immigration enforcement were sold to counter terrorism, and
these round-ups of people under various immigration measures
did not respond to the terrorism threats we had. All they did
was intimidate this group of people and the communities they
come from without any measure of success on the terrorism
front. That is the real criticism. We should be clear about
what we were doing here. If we were doing this in the name of
fighting terrorism, we were not accomplishing it by these acts.
Senator Feingold. I certainly agree with that.
Mr. Dempsey, both the House and the Senate versions of the
intelligence authorization bill currently in conference contain
a provision that greatly expands the FBI's authority to issue
these so-called national security letters that I just
mentioned, a form of secretive administrative subpoena used in
foreign intelligence and terrorism investigations.
Currently, the FBI may serve NSLs on traditional financial
institutions; that is, banks. And under the new provision, the
FBI could also serve NSLs on pawnbrokers, travel agencies, car
dealers, boat salesmen, casinos, real estate closing agencies,
and the U.S. Postal Service.
Today, I joined my colleagues, Senators Durbin and Leahy--
and I congratulate them for their leadership on this--in
sending a letter to the Intelligence Committee asking that they
refer this issue to the Judiciary Committee and defer action on
it.
What do you know about this provision and do you have any
concerns about it?
Mr. Dempsey. Well, we have serious concerns about this
provision. It is in both the House-passed and Senate-passed
intelligence authorization bills which are still pending in
conference.
The national security letter is an extraordinary device.
This is literally a letter signed by an FBI agent and submitted
to a credit company, a bank, or a telephone service provider to
get certain transactional records.
Now, in the past Congress has always been careful in
expanding these. In each case, there was a careful
justification made and they were narrowly focused.
Unfortunately, in the PATRIOT Act the particularized suspicion
standard was removed. In the past, where there was some reason
to believe that a person might be a terrorist or might be a
spy, the national security letter could be used to obtain that
person's records.
That particularized suspicion standard was eliminated by
the PATRIOT Act, and honestly I am not sure how they are now
being interpreted. They could cover entire databases, including
information about innocent persons, all on the basis of a claim
by the FBI agent, with absolutely no judicial scrutiny, that
the information is sought for a counter-terrorism
investigation.
Senator Feingold. So it is identical to the concern that
many of us have about the language in Section 215.
Mr. Dempsey. Exactly.
Senator Feingold. Contrary to the myth that is being
perpetrated that somehow there is judicial review, in fact, it
is essentially a mandatory provision. All the administration
has to say is that they seek this information and the judge has
to give it. Isn't that right?
Mr. Dempsey. The judge is really a rubber stamp. The
statute says he ``shall'' issue the order if the Government
makes the certification. The judge cannot even look behind the
certification to determine whether those facts are there.
Senator Feingold. That is exactly what I wanted to get to.
Mr. Dempsey. In the national security letter, there is no
judge at all. It is simply the FBI agent saying to himself ``I
want this.'' And now in this provision that is in the
intelligence authorization bill, a financial institution would
be defined to include a car salesman, a travel agent, and a
host of other businesses not traditionally regulated, not like
banks, which are required to report information to the
Government.
The way the definition works, a financial record is any
record of a financial institution. So the records that will be
obtained are not necessarily about bank transactions, but you
can go to the travel agency and the travel agency becomes a
financial institution, and then all the records of the travel
agency become financial records that can be obtained by this
letter signed by an FBI agent.
Senator Feingold. Thank you for that specific answer.
Mr. Chairman, my time is up, but this is exactly the kind
of analysis that we have been seeking for a couple of years to
get down to the specifics and fix the provisions that are
potentially open to abuse.
Thank you, Mr. Chairman.
Chairman Hatch. Thank you, Senator. We appreciate that. I
think it deserves to be pointed out that, yes, they can get the
warrant from the judge. It is automatic, but they had better be
right in their representations or the judge can take them apart
afterwards.
Mr. Dempsey. I think that goes back to Senator Biden's
point, which is to not repeal the--
Chairman Hatch. Well, that is integrity on the part of the
Government. That is the point.
Mr. Dempsey. Well, right now, the judge under either 215--
Chairman Hatch. He has to issue it, but if the Government
has acted with a lack of integrity, that same judge can take
the Government to task.
Mr. Dempsey. But, Mr. Chairman--
Chairman Hatch. It may be after the fact, but he can take
them to task.
Mr. Dempsey. But there is no reporting back to the judge.
The judge will never know. There is no return.
Chairman Hatch. Well, that is where the ACLU comes in. And
don't worry, they will come in.
Ms. Strossen. We will.
Mr. Dempsey. Well, Mr. Chairman, every recipient of a
national security letter and of a 215 order is prohibited from
telling anybody.
Chairman Hatch. It isn't just the ACLU. It is--
Senator Feingold. It is a secret process, isn't it?
Mr. Dempsey. We will never find out, Mr. Chairman. There is
a permanent gag order.
Chairman Hatch. Well, not necessarily. If they misrepresent
to the court and that can be shown--in some cases, I suppose,
in criminal law that can be shown--then they are going to
suffer some tremendous problems.
Mr. Dempsey. Only if it comes into court.
Chairman Hatch. And I might add that Section 215 provides
for Congressional oversight, as well. Every 6 months, we have
to look at that, and we will. But be that as it may, I just
wanted to make that one point.
Senator Durbin.
Senator Durbin. Mr. Chairman, because I serve both on this
Committee and the Intelligence Committee, I want to tell you we
didn't spend a minute, not a minute, discussing these national
security letter changes as part of this intelligence
authorization bill--none.
Senator Feinstein--I am sorry she is not here--said we have
never seen PATRIOT Act II. Here it is; here is one provision.
Here is PATRIOT Act II, not coming through this Committee with
a hearing for an opportunity for this discussion to really be
full-blown on both sides. Instead, we have given jurisdiction
over an expansion of the PATRIOT Act to the Intelligence
Committee, which has not spent one minute discussing its
substance, not a minute.
To suggest that if the Government goes too far in a secret
investigation involving someone's records at a travel agency or
an insurance company or a real estate broker, that somehow the
ACLU is going to find out about it--how, when? I really think
this is a classic illustration of what can't be done by
direction is being done by indirection. The PATRIOT Act is
being expanded, and it will be unless, I hope, Mr. Chairman,
you assert jurisdiction and say to the Intel Committee, stop,
this is our responsibility; it is not yours.
Let me just say, as well, that I voted for the PATRIOT Act
with some misgivings, but understanding that we were facing a
national tragedy and a national challenge. And I heard the
argument that we wanted to pass the PATRIOT Act because we
wanted to break down the wall between law enforcement and
intelligence which had stopped us from finding would-be
terrorists before they struck.
I thought it was a decent argument, but I have come to
understand as I have looked at it that there is another side to
the story. We need more intelligence in law enforcement, and
that is an element that I have really come to understand more,
serving on both of these committees.
The argument from the Government has been we need more
information and we are sorry if the privacy of individuals has
to be compromised to secure it. I think that is what is behind
sneak-and-peek, that is what is behind the roving wiretap, and
that is what is behind the effort to come up with library
records.
The Government is saying we regret that in searching
library records for terrorists, we are also going to look at
Aunt Louise's book club, but, you know, we have got to stop
terrorism. And they are saying we are sorry that in tapping the
phones of would-be suspects of terrorism, we are going to
listen in to the conversations of innocent people.
Doesn't that raise an interesting constitutional question
for us here as to whether or not we are prepared to say that in
stopping terrorism, we will compromise the rights of innocent
people? That is what this debate is all about.
I might also say that it isn't just a matter of gathering
more information. In the time since September 11, it has been
my experience that much of the information gathered by the
Government is not used properly. Archaic computers at the FBI
are finally, finally being replaced by Bob Mueller, and he
deserves credit for that.
The bureaucracy which stops immigration records from being
shared with people in Homeland Security, and vice versa,
finally is starting to change. Also, I think there is a very
bad record when it comes to analyzing this information. They
don't share it, they don't analyze it; it is not being used
properly. There is also a ``cover your fanny'' timidity now
about saying things between agencies. And all of that suggests
that just enlarging the body of information gathered is not the
be-all and end-all of this, and particularly at the expense of
innocent people.
I want to ask Mr. Zogby a question and preface it by saying
that there has been no staff that has gone into this; this is
my question alone and I am asking it of you directly.
The Chicago Tribune started a series on Sunday,
``Immigration Crackdown Shatters Muslims' Lives.'' They started
following the Pakistanis who were deported back to Pakistan,
and on the front page the finding just hit me between the eyes.
``Since September 11, 2001, 83,310 foreign visitors from 24
predominantly Muslim nations and North Korea registered with
the government after U.S. Attorney General John Ashcroft
required them to do so. 13,740 of those were ordered into
deportation. Zero were publicly charged with terrorism,
although officials say there are a few terrorism connections
that come out of this.''
I guess my point, Mr. Zogby and Mr. Chishti, and others as
well, is this: How can we engage Arab Americans, the Muslim
population, good, patriotic people who want to stop terrorism,
if we are also embarking on this kind of effort that sweeps up
so many people clearly who have been profiled by this
Government that deports so many people and has so little to
show for it?
I think bringing intelligence and law enforcement together
would argue the opposite should have been done. We could have
reached out more constructively, come up with more positive
information, made America safer, with a less heavy-handed
approach.
Mr. Zogby, you made reference to this in your statement, if
you would like to comment on that.
Mr. Zogby. I would. Thank you, Senator. As important as
this discussion is, and as both Senators Feinstein and Feingold
and Senator Biden have made clear, a detailed discussion of the
PATRIOT Act to pull apart the pieces that work and don't work,
are needed, not needed, dangerous, not dangerous, et cetera--we
need to look at all the other practices that have been
initiated by the Department of Justice that have created fear
and panic, and that in many instances have then bounced back on
the PATRIOT Act and the symbol for all these things.
One of them, of course, is the special registration
program, which from the very beginning was poorly conceived and
I believe dangerous. When we first got word of it, we wanted,
of course, to encourage our people to comply and to register.
We were told that it would cover all countries, not just Arab
and Muslim countries; that it would be for everybody.
Senator Durbin. That is right.
Mr. Zogby. We then said to the Department of Justice, what
are you doing--we called INS and said what are you doing to
make this work? They came back to us and said, well, we have
sent out notices to all of your organizations. And I said,
well, wait; number one, the people that you are registering
don't belong to our organizations. They are visitors. They
don't log onto the Arab American website to become members
because they are only going to be here in the country for a
short period of time. And they said, well, we have gone out to
our offices.
So we on our own called INS offices around the country to
see what had been done to date. We found half of the offices
that we called had done nothing. Some of them were not sure
what they had to do. The Los Angeles office was interesting.
They said we are all set; we are ready to go. We are going to
be able to process these people. We are going to be able to get
a hundred through in a day and we are all equipped to get the
job done. Getting the job done differed from office to office
because instructions weren't clear.
INS offices are underfunded, understaffed, and they were
ill-equipped to carry out this program, so that in Los Angeles,
800 people showed up in 1 day; 700 got detained because they
didn't know what to do with them. The fear that that created
that spread across the country created panic.
I have a weekly television show, a live call-in program,
and we were getting calls from people saying I can't go; I am
not going to register. I am afraid. I can't be detained. I have
a job, I have family; I have this, I have that. We said you
have to go and do it.
Of the 83,000 who registered, I believe maybe an equal
amount didn't go and register because they were so afraid after
the L.A. Iranian situation, number one. Number two, what is
tragic is that the people who complied, who obeyed the law and
registered--of them, we are now deporting 13,000. The shock
that that has sent throughout this community, because most of
these people have ties of one sort or another, and has sent
overseas has been very dangerous and damaging to our country.
I think, therefore, that we need to take a very close look
at this program and look at how it has not only not worked, but
probably was designed not to work from the get-go.
Senator Durbin. Mr. Chishti, before you respond I would
like to have Professor Dinh's comment because I want to hear
both sides of this story. But do you sense in my remarks that I
have suggested that it isn't just about strengthening the hand
of law enforcement, but it is also strengthening the
intelligence-gathering, and at times they are at cross-
purposes? Clearly, this registration is one effort.
I might also add that although the PATRIOT Act has become a
shorthand for all of the fear of Government excess and many
times a misnomer, it does reflect the feeling among many
Americans that our liberties are being compromised in the name
of security.
Now that you have been in the administration and back out
again into civilian life, can you understand this anxiety felt
by the American people, and also sense that perhaps we are too
heavy on the law enforcement side and should use intelligence
more to protect America?
Ms. Strossen. Chairman Hatch and Senator Durbin, with
apologies, I have a plane to catch, so thank you very much for
your important work and for including me.
Senator Durbin. Thank you.
Chairman Hatch. Well, we are very happy to have you here.
Mr. Dinh. Senator Durbin, on your very important question,
I do agree with you that the USA PATRIOT Act has been a brand,
and a brand that has been severely diluted, and the dilution
results from a general anxiety that is out there. Whether or
not that anxiety is properly placed or not is the conversation
that this Committee is having, and ultimate resolution on
specifics with respect to constitutional rights will be
ultimately resolved by the courts, I hope with help from this
Committee and Congress in general.
I do agree with you profoundly that the work of law
enforcement and intelligence needs to be done better, and not
only that they should work together, but each should be able to
deliver the mail and make the trains run on time in their own
respective organizations better, including the coordination
between the two institutions.
I do want to make a little note regarding the immigration
enforcement. As you know, this is an issue that we have worked
on before 9/11 to bring what I call sanity to the immigration
policy so that we do not have a disconnect whereby the
immigration laws are passed without proper resources to be
enforced and therefore routinely ignored, to return some
semblance of an immigration policy to this country.
In that respect, I do think you are proper, and Mr. Zogby
certainly is justified, to focus on the 80,000 number and the
13,000 deportations. But to put it in context, every year the
immigration authorities initiate proceedings against
approximately one million persons who are illegally or
unlawfully in this country. These numbers should be put in
context so that there is not an untoward message that only
these persons are being profiled, only these persons are being
enforced against. But it is one part of immigration policy
enforcement, and also national security protection.
Senator Durbin. But this was a proactive effort by the
Government. They decided that people primarily from Arab and
Muslim nations would be called in to register. It is tantamount
to a situation where an FBI agent called me--he is in a
Midwestern city--and said I can't really go to a group of Arab
Americans at a community center and say I want to talk to you
about any concerns we should have in this community. But before
we talk, what is your immigration status? Is it possible that
you are out of status and maybe you should be deported? How far
does that conversation go?
Mr. Dinh. That does not go very far, and I very much agree
with you on that very important technical point. One note I
would make, however--and I do not know whether it is true or
not, but one of the most welcome pieces of news I read in the
newspaper within the last several months is that the Department
of Homeland Security, the Bureau of Immigration and Customs
Enforcement, is now ready to fully implement the charge of
Congress since 1996 that there be a comprehensive entry-exit
registration system.
That has been a charge from Congress since 1996. That
deadline, of course, was missed in 2001 and then extended. I am
very glad that that comprehensive system has now been
implemented, or at least is in the beginning stages of
implementation, so that the complaint of Mr. Zogby and the
justifiable perception that there is selective enforcement is
no longer the reality that is out there.
Senator Durbin. Mr. Chairman, you have been very patient. I
thank the panel. I wish I could go longer, but I know that you
don't. Thank you.
[Laughter.]
Chairman Hatch. Well, you all have gone longer. Let me just
say this is important and it is important to you.
I think it is important to point out that there is no bill
that is this large that you can't refine or make better. This
panel has helped us to a degree with regard to that, but still
I think Senator Feinstein is right. An awful lot of criticism
of what is going on in the administration is not of the PATRIOT
Act, because it has nothing to do with the PATRIOT Act. A lot
of it has to do with the immigration laws and the enforcement
of those laws in those society.
Frankly, that doesn't negate the fact that we have to be
fair and that we have to do what is right, not just to Arab
Americans, but to all Americans, and not just to non-Arab
Americans, but all non-American people who are legally in this
country. Those who are here illegally we need to treat with
consideration as well, although we should enforce the laws.
Now, what I have been interested in is that almost all the
criticism of the PATRIOT Act has been, I think, very much
misplaced if you listen to the experts in the field like Mr.
Cleary who have had to actually implement it, and had to
implement the laws before the PATRIOT Act came long, and will
to a person, I believe, say that they are much better equipped
today to fight against terrorism than they were before. Now,
that doesn't mean that we can't look for ways of improving this
law, and that is one reason for this hearing.
I think in the regard, Mr. Dempsey, you have been very
helpful to the Committee. We would enjoy receiving further
information on a section-by-section basis on what you think
could improve it. You haven't come here and said get rid of it,
throw it out, it is a lousy law, et cetera, et cetera. You have
come here and tried to make some constructive suggestions, not
all of which I agree with, by the way, and neither did Senator
Biden. I can't speak for him, but we have worked very closely
on these criminal law issues.
This is a very important Act. Without it, I don't think we
could curtail terrorism like we are, and I think the record of
the Justice Department, the FBI, and other law enforcement
agencies in this country has proven that thus far.
Now, if the Act goes too far, then we want to correct that.
On the other hand, this business of sneak-and-peek--my gosh,
criminal law enforcement has used that throughout the years. To
make that sound like that is some big, brand new thing, it
isn't at all. Under the PATRIOT Act, they are subject to
reasonable rules.
You know, I hear on the one hand from Ms. Strossen that she
is not really against roving wiretaps. Yet, on the other hand,
I heard her say she is basically against some aspects of it.
Well, if she can make the case, we are going to listen. But I
in many respects prefer to listen to Mr. Cleary, who is in
private practice today but who was on the front line.
Now, Professor Dinh worked with us day in and day out, 18-
hour days. I remember it was right here in this room where the
PATRIOT Act was born. Senator Leahy and I had a lot to do with
it; as a matter of fact, had almost everything to do with it.
The fact of the matter is that without Professor Dinh, we
wouldn't have done as good a job as we did.
Now, there is no Act that is 300 pages or whatever it is
that can't be improved. So we are interested in your comments,
and interested in having any suggested improvements and we will
certainly consider them. Mr. Zogby, that goes for you, and it
goes for you, Mr. Chishti, because this is important.
I want to thank all the witnesses for testifying today.
This has been an important hearing. Security and freedom are
the very foundations of our country. I don't know anybody on
this panel, in the Judiciary Committee, who is not interested
in protecting civil liberties and freedoms. Our country is a
beacon of freedom throughout the world. It is a country where
people come from all over the world and share the American
dream.
In preserving our place in the world, however, we have to
be careful to act responsibly to identify, stop and disable
terrorists around the world, but particularly in our country,
and especially those who enter our country who want to
perpetrate attacks on innocent Americans. Anybody who thinks
this is just talk hasn't lived in the last few years.
From today's hearing, it is apparent to me that much of the
criticism surrounding the Government's anti-terrorism efforts
centers on laws and policies that have little or nothing to do
with the PATRIOT Act. That doesn't mean that we can't look for
ways of improving it.
In future hearings, this Committee will examine further
some of these important civil liberties issues, such as the
designation of enemy combatants and the detention of the
Guantanamo Bay prisoners. Those are matters that bother all of
us.
On the other hand, wouldn't it be awful if we overemphasize
civil liberties to the degree that we also have another major,
major terrorist incident in our country because we didn't do
the things that were protective of American citizens and
others?
George Washington once said, ``There is nothing so likely
to produce peace as to be well prepared to meet the enemy.'' So
we have to maintain our vigilance and our commitment to winning
the war against terrorism, but do so in a manner that ensures
the civil liberties and freedoms of all our people within our
borders.
Finally, I would like to commend Dr. Zogby for the work of
his son, Joe, Senator Durbin's head staffer on immigration and
other matters. We appreciate his work for the Committee. I
think you should be a proud father, and I am sure you are. I
can see by the look on your face that you are, and I would be
disappointed if you weren't.
Mr. Zogby. I thank you for your sign of good taste.
Chairman Hatch. Thank you very much.
Well, we have enjoyed having you all here today, and we
will continue to research this matter, look at it further, and
hopefully make the right decisions down the line. But I hope
people realize this PATRIOT Act has played a significant role
in protection of this land and we should never deemphasize
that.
With that, we will recess until further notice.
[Whereupon, at 1:37 p.m., the Committee was adjourned.]
[Additional material is being retained in the Committee
files.]
[Questions and answers and submissions for the record
follow.]
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