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Public Statements

Hearing of the Senate Committee on the Judiciary

Location: Washington, DC

Federal News Service



SEN. PATRICK LEAHY (D-VT): Well, thank you very much, Mr. Chairman. And as you said, the two of us do see these hearings as a bipartisan effort to review the effectiveness of our anti-terrorism laws. And you and I have worked on similar things for well over 20 years, and I am delighted to be working with you on this.

And, as you have said, of course, the attorney general is going to have to participate in these hearings. I'm -- (inaudible) -- today I think we have some very prime members of the staff of the Department of Justice and appointees of the Department of Justice. I don't want to denigrate their position, but they're not the attorney general. And the -- it seems most senior administration officials do regularly participate in oversight hearings on the various committees I serve on, but the attorney general has appeared before this committee only once this year, and the for a very short time -- which surprises me because he's recently sent me a letter saying how important these kind of oversight hearings are, and how it's absolutely important that the Congress do oversight. I know he's a very busy man, but he's been able to make a lot of highly publicized appearances all over the country in a public relations campaign on the Patriot Act, so I would hope that he would find some time to drop by here. There's a lot of senators on both sides of the aisle -- we have questions for him. And as I did when I was chairman, we accommodated his schedule, and I know that Chairman Hatch would do the same thing.

Now, one the focal points, of course, of the hearings will be the Patriot Act. We passed that two years ago this month after the 9/11 attacks. Since its passage, the Patriot Act has raised concerns with citizens around the country, actually across the political spectrum, from the far right to the far left. I think anti-Patriot resolutions, I've been told, have been passed by more than 190 communities in 34 of our 50 states.

Now, the Justice Department, of course -- it's part of their PR -- does take a very dismissive attitude. According to the Justice Department, they said, quote, "Half are either -- of these resolutions -- half are either in cities in Vermont, very small population, or in college towns in California, a lot of the usual enclaves." I think when you're talking about this showing up in 34 states, I think that's kind of an arrogant dismissal by the Department of Justice. I think it is beneath the dignity of the Department of Justice. And I can't speak for the other 33 of those 34 states, but consider Vermont to be a very progressive state, certainly one of the most internationalist of states, certainly the most law abiding -- I think we have the lowest crime rate of any state in the country. So, we find it arrogant, dismissive, condescending -- to give it -- to give the Department of Justice the benefit of the doubt.

Now, it is an opportunity to engage in public discourse, one of the most essential rights of Americans. And I think it's great that American people, the public raise these issues and talk about their liberties. They shouldn't -- the administration shouldn't dismiss them. They shouldn't -- people talk about their First Amendment rights, or Second Amendment rights, or Fifth Amendment rights, or any others, shouldn't be dismissed in a condescending way by the administration.

The communities represent actually millions of Americans, not just -- not just a few liberty and privacy conscious Vermonters, as the Justice Department insinuates. But I think if you impugn the people of these 34 states, or dedicated librarians, or United States senators for asking questions and raising concerns, it doesn't advance the debate or instill public confidence in the Department of Justice or the vast power it wields. It achieves just the opposite.

Now, having said that, I'm a strong proponent of the First Amendment, and I want to add, of course, the Department of Justice and its spokespeople have an absolute right to say anything they want, no matter how stupid it might be.

Now, in a democracy, there's always going to be an inherent tension between government power and privacy rights. The threat of terrorism, and this I would say on behalf of everybody, the height -- the threat of terrorism does heighten that tension, and that is difficult for the Department of Justice, and I readily concede that. And then when you overlay that with excessive government secrecy and a lack of cooperation and accountability taken by the administration in dealings with the Congress and the public, you further compound the tension and the risk to our free society. I remember when the Republican chairman of the House said they might have to subpoena the attorney general to get answers.

Undue secrecy undermines a system with built in checks and balances. But it also corrodes people's faith that the government will protect their freedoms. And we have enormous freedoms in this country. And that's one of the reasons why we're the most powerful democracy ever known. I think -- I think the reporter is probably picking up all our conversations here -- if we -- I can move to a different microphone, if that'd be -- But, if we're going to protect those freedoms, we have to have confidence that the government will respect them, and that's what necessary. Now, we have another two years before some of the powers we granted in the Patriot Act expire, so it's not too soon for us to take a look at these powers -- what's working, what's not, what can we do better. Obviously, the Patriot Act has become the most visible target of public concerns, but the next hearing in this series will address a broad array of civil liberties issues, including issues relating to the 9/11 detentions that the Department of Justice inspector general talked about in his excellent report earlier. So, I would hope that people take it seriously.

The witnesses here were selected by Senator Hatch more than two weeks ago, but I understand some of the testimony didn't arrive until 5:30 last night. I would hope that you would actually take things seriously. I mean, if I sounded somewhat annoyed before about the condescending attitude towards Congress by the Department of Justice and the condescending attitude toward 270 million Americans, it's because of things like that. We -- we've been setting time aside, we've been preparing for this. We let you know about this two weeks ago. And to have testimony sort of schleped on the door at 5:30 at night does not -- does not help. I recall what happened -- Chairman Sensenbrenner canceled a hearing when -- when this happened.

So, I will -- I'm looking forward to hearing -- I want to hear how the administration feels about some of the bills that others -- senators and I have introduced, like the Grassley-Leahy-Specter Domestic Surveillance Act, the Grassley-Leahy FBI Reform Act, and First Responders Act, Patriot Oversight Restoration Act that Senator Craig, and Sununu, Durbin, Reed/Reid (?) and myself put in. I think these are important things.

But, Mr. Chairman, I commend you for doing this, and I think your idea of the possibility of field hearings is an excellent one, and of course, as always, I will work closely with you on that.


SEN. LEAHY: Thank you, Mr. Chairman. And I have found both the discussion and the answers interesting. Incidentally, Mr. McNulty, you may want to be careful using the example -- I understand the temptation about the -- what we have seen recently with the boxcutters and all -- I think that that -- if anything, that's an example -- it should be an example of sheer embarrassment for our government. Those things sat there that long. There are many who feel that the prosecution of the person who put it there is more to cover the fact that the government dropped the ball. I'm not suggesting that that's the reasoning at all, but that is not one of the brightest lights of things we've seen recently.

Mr. Wray, on October 14th this year, a few days ago, the FBI announced it is going to recruit more language translators because of the FBI's expanding coverage into areas that require translation support. It's interesting the timing of that. Two years ago, I authored the provision in the Patriot Act that was designed to help the hiring of more translators by the FBI. Section 205 granted them the authority to expeditiously hire translators; did that because of the reports I was getting of all the material that sat there that was never translated.

Now, in July 2002, last year, whistleblowers in the FBI said they're still not doing anything on the FBI translation program. So I asked the attorney general specific questions. President Bush signed into law this act. Section 205 was the law. Why wasn't it being followed?

A year later, the attorney general got around to answering my letter -- actually July 17th of this year -- and said, "The FBI's success in recruiting, vetting and hiring linguists has eliminated the need to implement the provisions set forth in Section 205 of the act." In other words, the attorney general said, "We don't have to follow what you wrote into law."

That's fine. I've heard that before. So on July 17th, the attorney general, two years later and one year after I asked the question, said, "We don't have to follow that part of the law." But on October 14th he said, "Well, now we do have to hire more translators." Is there an inconsistency here? Is that section now, finally, after two years, being followed?

MR. WRAY: Senator --

SEN. LEAHY: Just curious.

MR. WRAY: I'm sorry.

SEN. LEAHY: I said just curious.

MR. WRAY: I'm not intimately familiar with the FBI's current translator hiring program. I certainly share your concern that translators are a vital part of our terrorism investigations and that the speed with which we need to move, which I know you recognize, is directly affected by that.

SEN. LEAHY: You are familiar with the Department of Justice and their handling. And in July, we were told by the Department of Justice we didn't need to follow the section. Now apparently we are. Is there an inconsistency in that? I don't care about the FBI. I'm talking about the Department of Justice generally.

MR. WRAY: And in the instance of the particular correspondence that you're describing about this provision, I'm not familiar with those particular letters, so I can't speak to it.

SEN. LEAHY: All right.

MR. WRAY: It does sound like there's been a delay in responding to you, and that's unfortunate.

SEN. LEAHY: One of the reasons why we'd kind of like to have the attorney general come here. But I will repeat it for the record, and I expect an answer back. This has been on the books for two years. We were told in July, "We don't have to follow the law." And then about a week ago we were told that we need the law. I just want to know which is accurate.

Now, the attorney general has announced that the department has not used Section 215 of the Patriot Act to obtain records from libraries, or from anyone else for that matter. But in a letter to the House Judiciary Committee dated June 13th of last year, the department stated, "The FISA court order under Section 215 could conceivably be served on a public library or bookstore," then added, "The more appropriate tool would be a national security letter."

So the FBI could seek the production of certain library records. I'm speaking now not of the specifics but just in the law. The FBI could seek the production of certain library records using NSLs, national security letters. Is that right?

MR. WRAY: Senator, national security letters do provide for production of some records. They are not -- they don't cover as many types of business records as --

SEN. LEAHY: I understand the difference. I was there at the drafting of this legislation. Go ahead.

MR. WRAY: And the other relative disadvantage to national security letters over the FISA business records request is the relative speed with which one can compel production.

SEN. LEAHY: Has the FBI served any NSLs on libraries since September 11th?

MR. WRAY: Not that I'm aware of.

SEN. LEAHY: And they have not used Section 215?

MR. WRAY: That's correct. That number was recently declassified.

SEN. LEAHY: Now, I know that in your answers to the chairman's question, you were talking about the number of people being convicted of terrorism, and it sounds like a pretty good conviction record. Actually we find that in 2003 there were 616 defendants convicted in cases classified as terrorism -- in Fiscal Year 2003, 616 defendants convicted in cases classified as terrorism cases; a pretty high number. It shows you're doing one heck of a battle.

But then it says only 236 were sentenced to prison terms. The median prison sentence was two months. Are we putting a whole lot of cases in under the rubric of terrorism that really don't belong there, to make the statistics look good? You don't have to answer that.

But let me ask you this. Has the Department of Justice notified U.S. attorneys around the country to reclassify as many cases as they can to make them terrorism cases and not routine immigration cases or whatever?

MR. WRAY: The department has, over the course of the last year or so, tried to make significant improvements in the accuracy of its record-keeping on investigations, specifically terrorism investigations. One thing I would say about --

SEN. LEAHY: Is that a way of saying -- is that a bureaucratic way of saying that they've reclassified a lot of cases that weren't called terrorism and now they are called terrorism?

MR. WRAY: No, it's not.

SEN. LEAHY: What does it mean?

MR. WRAY: What it means is that there are a number of terrorism investigations. And I think each of my colleagues could speak to this as well from their respective districts.

But there are a number of terrorism investigations where the decision that is made at the charging stage to charge the defendant with a non-terrorism crime in order to protect -- in particular to protect national security and classified information that may be exposed, sources and methods and that sort of thing, that may be jeopardized by the criminal discovery that would ensue if we were to charge the terrorism offense.

So sometimes the judgment is made -- in fact, fairly frequently the judgment is made that a lesser offense, a fraud offense, that sort of thing, will be charged as a result of a terrorism investigation, in connection with somebody about whom there is intelligence linking them to terrorist organizations, that results in a non-terrorism crime being charged.

SEN. LEAHY: But Mr. Wray, let's be serious about this. A few months after September 11th, just about the time when there had been a lot of criticism that maybe the Department of Justice had dropped the ball -- in fact, one of the senior Republican senators has said that if they connected the dots, the Department of Justice had connected the dots, we might have avoided September 11th.

I don't know if I would draw that conclusion or not, but there was criticism there. And all of a sudden everything is reclassified, and lo and behold, we're just getting more terrorism convictions than we'd ever seen. Nothing seems to have changed that much, but more terrorism convictions.

And then we find the average sentence, the median sentence is two months. Now, real terrorists aren't getting two-month sentences. I mean, the Department of Justice is not going to stand for that. I point that out because it's great to say, "Look at all these huge new convictions we're getting in terrorism," but two-month sentence -- I mean, this is like "Look at the enormous job we've done on bank robberies; we got the guy who stole $800."

Mr. Fitzpatrick (sic), you have a tremendous career investigating and prosecuting terrorism cases in the civilian judicial system, U.S. embassy bombing cases, prosecutions of Sheikh Omar Abdel Rahman, Ramzi Yousef and so on.

Since September 11th, the administration decided some terrorism suspects would not be given a trial in federal court but would be designated enemy combatants -- Jose Padilla, Yasser Hamdi, Ali Amari (ph). Two of those cases, of course, originated in Illinois. Do you think Padilla and Ali Amari (ph) could have been prosecuted successfully within our civilian judicial system?

MR. FITZGERALD: I don't know the facts of those cases to give you an honest opinion. And to be blunt, I never like to speak about other people's cases if I don't know the facts.

I can tell you, obviously, that I understand it's a heavy decision the president has to make to make a decision, "Do we go with what is the ordinary criminal process versus a special case?" And I recognize people are concerned that we'd like to do things in the regular judicial system.

But I also recognize that the president has to look at situations sometimes where there may be very good reason to believe that the person is allowed to walk around on the street, that they can kill, and there may not be ability to use information as evidence in a courtroom, and that the answer isn't to let a citizen wander the street through Times Square and everywhere else because we can't prevent them from happening. But I can't tell you --

SEN. LEAHY: You had no role in the Padilla case?

MR. FITZGERALD: I was in the periphery of Padilla. Obviously he had had come through Chicago, back to New York, as a material witness. So he was briefly in Chicago, so I knew about him. Then he went back to New York and southern New York was looking at him. And then I learned about the decision after it was made by the president.

And if I could answer just one brief thing on the last question you asked Mr. Wray. I certainly was given no directive from Washington to sort of pump the numbers on the terrorism side.

SEN. LEAHY: I appreciate that. And as I said, Mr. Fitzgerald, I have a great deal of respect for you and for the work that you've done in the past. It's not in the abstract; it's in the concrete. And we've all benefited by that. Thank you.

Thank you, Mr. Chairman. I'll have other questions for the record.

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