HEADLINE: HEARING OF THE CRIME, TERRORISM & HOMELAND SECURITY SUBCOMMITTEE OF THE HOUSE JUDICIARY COMMITTEE
SUBJECT: THE PATRIOT ACT
CHAIRED BY: REPRESENTATIVE HOWARD COBLE (R-NC)
WITNESSES: MICHAEL SULLIVAN, U.S. DISTRICT ATTORNEY, MASSACHUSETTS; CHUCK ROSENBERG, CHIEF OF STAFF TO DEPUTY ATTORNEY GENERAL; HEATHER MACDONALD, MANHATTAN INSTITUTE FOR POLICY RESEARCH; BOB BARR, CHAIRMAN, PATRIOTS TO RESTORE CHECKS AND BALANCES
CHAIRED BY: REP. HOWARD COBLE (R-NC)
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Mr. CHABOT. Thank you, Mr. Chairman. I want to thank you for holding this important hearing.
I want to first join my colleagues in welcoming former Congressman Bob Barr; we are very interested in his testimony. We may not agree with everything, as we didn't necessarily agree on this Committee all the time, but it was an honor to serve with Congressman Barr here. And we sat next to each other for about 8 years on this Committee and on the full Judiciary Committee and went through all kinds of things together, from impeaching Presidents to debating about whether or not we ought to put cameras in the Federal courtrooms, and a whole range of other issues.
So it's great to have you back today, Bob. Bob, we wish you best in the future as well. I would like to see you back up here someday if the cards are right.
Let me, if I can, turn to you at this point Ms. Mac Donald. And Mr. Scott was cross-examining you there with some questions and things, and because of time, oftentimes witnesses don't get a chance to respond to the extent that they might like to. If there are any additional responses that you might like to make to any of the points that my friend was making, I would be happy to give you that time now.
Ms. MAC DONALD. Well, I think, again, we need to understand that these are members of the Federal judiciary who have been sworn to uphold the Constitution that are ruling on whether delay is reasonable in a particular search. And again, this is after already having found probable cause to conduct the search in the first place.
There is a second step that the judge has to go through in approving a delayed notice search, which is, is there grounds, certain exigent circumstances that make delay reasonable, such as witness intimidation or obstruction of evidence.
It seems to me we have to assume that the checks and balances that the Founders provided in setting up the Constitution in the first place, the most important of which is judicial review, will work in this situation. I don't understand how you can possibly conduct a preemptive investigation, whether it's a criminal investigation or a terror investigation, without a delayed notice capacity. It is logically impossible to preemptively investigate either a crime or terrorism and notify the subjects of the search.
Mr. CHABOT. Thank you.
Let me ask you another question. The Knoxville News Sentinel in Tennessee reported that during the jury deliberation process in the case of Hafiz and Torres-Luna that ultimately found the two men not guilty of cocaine possession and distribution, as well as multiple Federal firearm violations, the jury posed a PATRIOT Act-related question to the judge. The question asked, if the defendants were being tried under the PATRIOT Actin a handwritten note to the judge added that the PATRIOT Act had been ruled unconstitutional in four States and several municipalities. Judge Leon Jordan responded simply, ''no''. Could you comment on that story?
Ms. MAC DONALD. That's classic. You found a classic example. The ACLU and other groups have done a bang-up job of getting misunderstanding out there. Everybody thinks they're under PATRIOT Act investigations. They think the war in Afghanistan is being conducted under PATRIOT Act powers.
The PATRIOT Act was a narrow act designed for one thing and one thing only, intelligence. It acknowledged the fact that our only weapon against terrorist is intelligence. We cannot target-harden our way into safety.
And so when it comes to bringing surveillance powers into the 21st century, acknowledging the existence of cell phones and e-mail, the PATRIOT Act does that, tearing down the wall that prevented two FBI agents on the same al Qaeda squad from talking to each other, the PATRIOT Act tore down that wall. It is narrow; it is not something that is affecting the entire country. And again, if there had been abuses under this act, believe me, Congressman, we would have heard about it.
Mr. CHABOT. And that's what I wanted to get into with the little time I have remaining. I know, Mr. Rosenberg, I think, Mr. Sullivan, you also indicated, that there weren't any examples of PATRIOT Act abuse, and not a single example of abuse of civil rights and that sort of thing, and I've heard that before.
Bob, do you have any cases or are there any examples that you've heard that you would believe that would counter that? What would be your response to that?
Mr. BARR. It's, of course, very difficult to say, Mr. Chabot. For one thing, section 213 searches are conducted in secret, so it's very difficult to know what abuses there might have been, if any. So it's virtually impossible, at least until the end of these investigations whenand I certainly take the Department of Justice at its word, that at the end of the investigations, everybody will be notified. The problem is, Mr. Chabot, we know for a fact, according to the Attorney General's testimony, that in at least I believe six of the instances in which the Government allows that it has sought the section 213 authority to conduct a search without notice, that the delayed notice has gone on indefinitely. So it's virtually impossible to say, Mr. Chabot.
We do know there have been some examples of noticeless searches such as that, even though it was not conducted under section 213, the problems that manifest themselves are the same, the Mayfield case out in Oregon. And I don't want to get into a big discussion of that, but that was simply a case in which there was a noticeless search that turned out to be problematic.
So I think one can reasonably state that there have been problems, the extent of which, the magnitude of which it is impossible to say at this still relatively early stage in the exercise of section 213 powers.
Mr. CHABOT. Could I ask for unanimous consent for 1 additional minute, if I could, just to ask for a response?
Mr. COBLE. I'll do that, but we're going to have a second round as we go.
Mr. CHABOT. If I could have 1 minute, I would appreciate it.
Mr. COBLE. All right.
Mr. CHABOT. Would any of the witnesses like to respond to the response about allegations and the secret cases and things?
Ms. MAC DONALD. I would like to respond to the Mayfield case, because I know it has been raised before. The Mayfield case was not an abuse of the PATRIOT Act. The problem was there were fingerprints; the FBI misread the fingerprints. But it'sthe use of the PATRIOT Act were completely valid. And this was, after all, a terrorism investigation. Let's remember the context. This was after the Madrid train bombing, and the FBI had evidence that led them to Mr. Mayfield. Unfortunately they read their prints wrong. It had nothing to do with abuse of the PATRIOT Act.
Mr. CHABOT. Thank you very much. Yield back.
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