STATEMENT OF SENATOR PATRICK LEAHY,
RANKING MEMBER, COMMITTEE ON THE JUDICIARY
HEARING ON OVERSIGHT OF THE USA PATRIOT ACT
APRIL 5, 2005
On
a September morning three and one-half years ago nearly three thousand
lives were lost on American soil, and our lives as Americans changed in
an instant. In the aftermath of the 9/11 attacks, Congress moved
quickly – some have said too quickly -- to give federal authorities
substantial new powers to investigate and prosecute terrorism. The USA
PATRIOT Act, a landmark and sweeping measure, was signed into law on
October 30, 2001, just six weeks after the attacks.
Some of
us sitting here today contributed to the PATRIOT Act. We worked
together in a bipartisan manner, and with common resolve to craft a
bill that we hoped would make us safer as a Nation. Freedom and
security are always in tension in our society, but we tried our best to
strike the right balance. Now it is time to return to this discussion
to assess what aspects we got right and what modifications need to be
made.
I negotiated many of the provisions of the PATRIOT Act
and am gratified to have been able to add several checks and balances
that were not in the initial proposal. The White House reneged on some
agreements that we had mutually reached to strike a better balance on
some of the PATRIOT Act's provisions. It is also true that additional
checks and balances that I and others sought, had the White House
agreed to them, would have yielded the same benefits to our law
enforcement efforts, but with greater accountability and less
opportunity for abuse. In the final negotiating session, former House
Majority Leader Dick Armey and I insisted that we add a sunset for
certain governmental powers that have great potential to affect the
civil liberties of the American people. That sunset provision is the
reason we are here today. It ensured that we would revisit the PATRIOT
Act and shine some sunlight on how it has been implemented.
As
we all know, the vast majority of the provisions of the PATRIOT Act are
not subject to sunset. Of the handful that will expire at the end of
the year, some are non-controversial and can be renewed with little or
no modification. Others require greater scrutiny. For example, many of
us have expressed concerns with the business records subpoena power in
section 215, and its implications for libraries and booksellers. I have
cosponsored legislation, introduced by Senator Feingold, that addresses
this provision.
Before we rush to renew any controversial
powers created by the PATRIOT Act, we need to understand how these
powers have been used, and whether they have been effective. A few
weeks ago, we celebrated the first National Sunshine Week with a
hearing on open government and bipartisan calls for responsiveness and
accountability. We should carry that theme into this process of
oversight and legislating.
We should also bear in mind the
9/11 Commission's counsel about the PATRIOT Act. They wrote, "The
burden of proof for retaining a particular governmental power should be
on the Executive, to explain (a) that the power actually materially
enhances security, and (b) that there is adequate supervision of the
executive's use of the powers to ensure protection of civil liberties."
We are in a new Congress with a new Chairman of this
Committee. Chairman Specter has a distinguished record as a steadfast
advocate and practitioner of meaningful oversight. We have before us a
new Attorney General who has pledged to work with us on a number of
issues, including the PATRIOT Act. The American people deserve to be
represented by a Congress that takes its oversight responsibilities
seriously, just as they deserve to see federal agencies cooperate with
Congress. The breakdown of cooperation following passage of the PATRIOT
Act has fostered distrust. We can change that by working together to
achieve the right balance in our anti-terrorism laws, and then by
allowing appropriate sunshine to illuminate the ways those laws are
being used.
I just said that the new Chairman supports
vigorous oversight. I am pleased that he has agreed to hold hearings on
a number of important issues that fall under this Committee's
jurisdiction. We will hold another hearing on the PATRIOT Act next
month, to hear the views of experts from outside the government. Later
this month, the Committee will hold a hearing – the first of several, I
hope -- to focus attention on the data brokering industry and its
implications for individual privacy and government accountability. And
finally, our new Chairman has expressed serious interest in holding a
hearing that I have been requesting for more than a year, to examine
the FBI's foreign language translation program. We are working together
to schedule that event.
We have heard over and over again
that there have been no abuses as a result of the PATRIOT Act. But it
is difficult, if not impossible, to verify that claim when some of the
most controversial surveillance powers in the PATRIOT Act operate under
a cloak of secrecy. We know the government is using its surveillance
powers under the Foreign Intelligence Surveillance Act more than ever,
but everything else about FISA is secret. This difficulty in assessing
PATRIOT's impact on civil liberties has been exacerbated greatly by the
Administration's obstruction of legitimate oversight efforts.
Whether
or not there have been abuses under the PATRIOT Act, the unchecked
growth of secret surveillance powers and technologies with no real
oversight by the Congress or the courts has resulted in clear abuses by
the Executive Branch. We have seen secret arrests and secret hearings
of hundreds of people for the first time in U.S. history; detentions
without charges and denial of access to counsel; misapplication of the
material witness statute as a sort of general preventive detention law;
discriminatory targeting of Arabs and Muslims; selective enforcement of
the immigration laws; and the documented mistreatment of aliens held on
immigration charges. Such abuses harm our national security as well as
civil liberties because they serve as recruiting posters for
terrorists, intimidate American communities from cooperating with law
enforcement agencies and, by misusing limited anti-terrorism resources,
make it more likely that real terrorists will escape detection.
Beyond
this, the Administration has used brutal and degrading interrogation
techniques against detainees in Afghanistan, Iraq, and Guantanamo Bay
that run counter to past American military traditions, practices and
ideals. Information about these disgraceful acts continues to trickle
out in large part because of a persistent press and the results of a
lawsuit filed under the Freedom of Information Act, or FOIA. Meanwhile,
the Administration continues to stonewall, releasing information only
when it is self-serving to do so, or when ordered to do so by the
courts.
The Department of Justice has been particularly
obstinate in its refusal to release information. Justice Louis Brandeis
said, "Sunshine is the best disinfectant." But despite its claims that
the Department of Justice redacts information only to protect national
security and privacy, DOJ held back a considerable amount of
potentially embarrassing information when it released FBI email traffic
last December in response to the FOIA lawsuit. Some of these documents
are several pages in length, yet are entirely redacted.
Two
weeks ago, Senator Levin released a more complete version of one of
these documents. What DOJ had originally refused to release were
conclusions by federal agents at Guantanamo that the military
interrogations were producing intelligence information that was
"suspect as best." DOJ also redacted an assertion that the
interrogation practices could undermine future military trials.
Finally, DOJ blacked out a segment of the memo describing how its own
Criminal Division lawyers took their concerns about the harsh
interrogation techniques at Guantanamo to the Pentagon's General
Counsel. Why would this piece of information be redacted? Perhaps
because the Pentagon's General Counsel, William J. Haynes, is currently
a nominee to the Fourth Circuit Court of Appeals. Mr. Haynes's
nomination has become embroiled over concerns that he was deeply
involved in developing the military's interrogation policies.
Finally,
in yet another example of abuse, recent press reports provide
disturbing details about how the Administration embraced the use of
extraordinary rendition after the 9/11 attacks. Several press reports
detail the CIA's use of jets to secretly transfer detainees to
countries around the world, where it is likely that they will be
tortured.
In defending the Administration's rendition policy,
the President said in his March 17 press conference that, "we seek
assurances that nobody will be tortured when we render a person back to
their home country." This statement came only 10 days after Attorney
General Gonzales acknowledged that we "can't fully control" what
happens to detainees transferred to other nations, and added that he
does not know whether countries have always complied with their
promises.
I have introduced legislation that would end this
abhorrent practice without expanding our obligations under the
Convention Against Torture. It simply closes the loopholes in the
Convention's implementing legislation, thus ensuring that we honor our
commitment not to outsource torture to other countries.
These
cases of overreaching and abuse trickled down from policy decisions
that were made at the top. There will always be scandals and tragedies
in a nation's history. What makes America special is that we do not
hide from our mistakes; we investigate them, learn from them, and make
sure they do not happen again. When necessary, we change our laws to
reflect the lessons we have learned. The spirit of openness and
accountability are what bring us here today to reconsider portions the
PATRIOT Act. I welcome our witnesses and look forward to a fruitful
discussion.
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