Department of Justice Seal


APRIL 27, 2005

Chairman Roberts, Vice Chairman Rockefeller, and Members of the Committee:

I am pleased to be here to talk about reauthorization of the PATRIOT Act. I appreciate this opportunity to come before Congress to discuss our successes in the war on terror and to find new ways to fight for freedom more effectively and consistent with the values that we all cherish as Americans.

As the distinguished members of this Committee know, the threat of terrorism remains serious, and it is critical that Congress continue to provide tools that enable prosecutors and law enforcement to both thwart terrorism and investigate and prosecute other serious crimes. I believe the authorities in the PATRIOT Act have enabled us to better protect America. But the exercise of government authority is always worthy of respectful and accurate discussion. I am open to suggestions for strengthening and clarifying the Act, but I cannot support amendments that will weaken our ability to protect our Nation.

The PATRIOT Act helped dismantle the “wall” that used to separate law enforcement from intelligence officials. Prior law, as interpreted and implemented, sharply limited the ability of law enforcement and intelligence officers to share information and “connect the dots” in terrorism and espionage investigations. Sections 203 and 218 of the PATRIOT Act, which are scheduled to sunset at the end of this year, brought down this “wall.”

Together, these provisions have reduced the statutory and cultural barriers to information sharing. And it is information sharing - as the 9/11 Commission and the WMD Commission made clear, and as this Committee knows full well - that will make the difference in our ongoing efforts to prevent terrorism.

This Committee is familiar with successful uses of section 218, including the investigation of the “Portland Seven” and “Virginia Jihad.” Section 203, along with section 218, was used extensively during the investigation of the Holy Land Foundation which a 2004 indictment alleged was created to provide material support to the terrorist organization HAMAS, to further its goal of destroying Israel through violent jihad.

Law enforcement professionals tell me that allowing sections 203 and 218 to expire would discourage information sharing, making it more difficult for us to disrupt terrorist plots.

Other similar common-sense PATRIOT Act provisions also will expire if Congress doesn’t take action.

Section 206, which provides national security investigators with an authority long possessed by criminal investigators, authorizes the use of multi-point or “roving” wiretaps tied to a specific target rather than a specific communications facility. Before the PATRIOT Act, these orders were not available for national security investigations under FISA, a gap in the law that sophisticated terrorists or spies could easily exploit. Although specific examples of the use of multi-point wiretaps under section 206 remain classified, I can represent in this open hearing that this authority is valuable. As of March 30th of this year, we have used this authority 49 times. Importantly, section 206 contains numerous safeguards to protect civil liberties: the FISA Court can only issue a roving wiretap order upon a finding of probable cause; the order must always be connected to a particular target; and minimization procedures must be followed concerning the collection, retention, and dissemination of information about U.S. persons.

Section 215 also filled a gap in the law. It granted national security investigators authority to seek a court order for the production of records relevant to a foreign intelligence investigation, similar to prosecutors’ authority to use grand jury subpoenas as the building blocks of criminal investigations. Use of this provision has been judicious - we have used this authority 35 times as of March 30 of this year. Moreover, we have not sought a section 215 order to obtain library or bookstore records, medical records, or gun sale records. Let me be clear - the reading habits of ordinary Americans are of no interest to those investigating terrorists or spies.

Section 213, although not scheduled to sunset, is another valuable provision of the PATRIOT Act. Section 213 codified one consistent process and standard for delayed-notice search warrants, which can be used in limited circumstances, with judicial approval, to avoid tipping off criminals who otherwise might flee, destroy evidence, intimidate or kill witnesses, cut off contact with associates, or take other action to evade arrest.

The portion of section 213 that has received the most attention is the provision allowing a court to authorize delayed notice if immediate notice would “seriously jeopardize” an investigation. I’d like to describe one actual case where immediate notice would have seriously jeopardized an investigation. In this case, the Justice Department obtained a delayed-notice search warrant for a Federal Express package that contained counterfeit credit cards. At the time of the search, it was very important not to disclose the existence of the federal investigation, as this would have exposed a related Title III wiretap that was ongoing for major drug trafficking activities.

An Organized Crime Drug Enforcement Task Force, which included agents from the DEA, the IRS, the Pittsburgh Police Department, and other state and local agencies, was engaged in a multi-year investigation that resulted in the indictment of the largest drug trafficking organization ever prosecuted in the Western District of Pennsylvania. While the drug trafficking investigation was ongoing, it became clear that several leaders of the drug trafficking conspiracy had ties to an ongoing credit card fraud operation. An investigation into the credit card fraud was undertaken, and a search was made of a Federal Express package that contained fraudulent credit cards. Had notice of the Federal Express search tied to the credit card fraud investigation been immediately given, it could have revealed the ongoing drug trafficking investigation prematurely and the drug trafficking investigation might have been seriously jeopardized. Even modest delay would not have been available, however, if this provision of section 213 were deleted.

It is critical that law enforcement continue to have this vital tool for those limited circumstances where a court finds good cause to permit the temporary delay of notification of a search.

Finally, I’d like to close by addressing a common question that must be answered by this Congress: the issue of whether we should continue to impose sunset provisions on critical sections of the PATRIOT Act.

The PATRIOT Act was a swift and decisive response to the attacks of September 11. In the weeks and months following the attacks in Washington, Pennsylvania, and New York, Democrats and Republicans came together to address the vulnerabilities in our nation’s defenses. Both Congress and the Administration worked with experienced law enforcement, intelligence, and national security personnel to design legislation to better protect the American people. Although there was extensive consideration in 2001, and although it is unusual to impose sunsets on statutory investigative tools, Congress included sunsets on certain provisions of the PATRIOT Act because members wanted to ensure that we were not risking the very liberties we were setting out to defend.

Today, we can all be proud. The track record established over the past three years has demonstrated the effectiveness of the safeguards of civil liberties put in place when the Act was passed. There has not been one verified case of civil liberties abuse. Our Nation is stronger and safer. Our bipartisan work has been a success. The Department of Justice has exercised care and restraint in the use of these important authorities because we are committed to the rule of law. We have followed the law because it is the law, not because it is scheduled to sunset. With or without sunsets, our dedication to the rule of law will continue.

The Department will strive to continue to carry out its work lawfully and appropriately and as a citizen I expect Congress will continue its active oversight over our use of the PATRIOT Act - not because of sunsets - but because oversight is the constitutional responsibility of Congress. So, given the Department’s record in using these authorities, the obvious effectiveness of these tools in stopping violent crimes and protecting our Nation, and the authority of Congress to reexamine these provisions at any time to correct abuses, the sunset provisions are, in my judgment, no longer necessary and should be repealed.

The authorities in the PATRIOT Act are critical to our Nation’s efforts in the war against terrorism. The Act has a proven record of success in protecting the security of the American people, while simultaneously respecting civil liberties, and I question how we can afford to allow its most important provisions to sunset. The efforts of the terrorists to strike our country surely will not sunset. I look forward to continuing to work with this Committee in the period ahead, listening to and responding to your concerns, and joining together again to protect the security of the American people.