Hearing of the House Judiciary Committee: The Reauthorization of the USA Patriot Act

HEADLINE: HEARING OF THE HOUSE JUDICIARY COMMITTEE

SUBJECT: THE REAUTHORIZATION OF THE USA PATRIOT ACT

CHAIRED BY: REPRESENTATIVE JAMES SENSENBRENNER (R-WI)

WITNESS: DEPUTY ATTORNEY GENERAL JAMES COMEY

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Mr. NADLER. Thank you, Mr. Chairman.

General, first of all, before I ask my questions, let me say I want to associate myself with the comments of the gentleman from California, Mr. Berman. It seems to me that what he was driving at, the need for specificity in some of these with some of these tools, really defines the difference between due process and arbitrary power. And much of what we're doing, or what we're dealing with, is very high risk of the use of arbitrary power; which is un-American, our tradition. And that's what we're getting at.

Last week, at a Subcommittee hearing, Mr. Matthew Berry, the counselor to the Assistant Attorney General for the Office of Legal Policy of the Department of Justice, introduced the following hypothetical dealing with national security letters.

He said, suppose investigators were tracking a known al-Qaeda operative, and saw him having lunch and conversing with an individual. Mr. Berry explained that such a situation would meet the relevance standard required for the FBI to issue a national security letter under section 505 of the PATRIOT Act.

Now, let's take this hypothetical further. That person has been tainted and could be used could be the target of a national security letter, of an NSL, for sitting next to a known al-Qaeda operative and politely making small talk. Sit down in Starbucks next to who knows okay.

Now, let's say that they were having lunch at the food court. From the food court, she walks the person who happened to sit next to the al-Qaeda operative to Barnes & Noble right there at the mall. Can the FBI then be justified in using a self-authorized NSL to demand records on her from the book store?

She then walks to a jewelry store and purchases something. Could those records be sought using an NSL? She then decides to leave the mall, and walks to her car. Can the FBI get her records using an NSL from the car dealership or the rental agency?

She drives to the public library, and there uses a computer to make travel plans through the online agency. Using a national security letter, can her private records be sought from the public library, the Internet server, the travel agency? You get the point. How far do we extend this?

Furthermore, would the people she came into contact with during this time also be tainted with suspicion and be subject to NSLs, given their supposed relevance to a national security investigation?

The records we're talking about are very private and sensitive. They show a person's private life and, as such, should enjoy a rather high standard of protection. Would you support legislation reestablishing the standard that the information sought be based on specific and articulable facts that suggest that that information pertains to a foreign power, or to one or more of its agents? Or are we on an open-ended fishing expedition that extends to the known universe, as apparently my hypothetical would seem to suggest?

Mr. COMEY. It's a very good question. And the same point is made not just with respect to NSLs, but with respect to 215.

Mr. NADLER. Absolutely. But the NSLs seem to me even more Government arbitrary power than 215.

Mr. COMEY. Because there's no judge involved, especially.

Mr. NADLER. No judge at all, that's right. It's just a field agent-a field office of the FBI.

Mr. COMEY. My concern with raising—with putting a ''specific and articulable facts'' standard; or some have suggested ''reasonable articulable suspicion;'' others have gone so far as to say ''probable cause,'' which I know you're not suggesting

Mr. NADLER. Although I've thought of it.

Mr. COMEY. Okay. I hope you don't suggest it. I'm trying to think of real-life examples, and the one I come up with is—and it's fair to draw those kind of hypotheticals out—is Mohamed Atta's roommate. So I keep focusing on, what if I had these tools before September 11th, and just after September 11th I found out that a guy had lived in Mohamed Atta's apartment, but I knew nothing else about him. What reasonable investigation would I, as a career prosecutor, want to conduct?

I would tell the FBI I want his credit reference record, I want his bank records, I want his travel records, I want his phone records. And what do I know, besides that this guy lived with a really bad guy? Do I have specific and articulable facts that justify, that show that these records are going to be..

Mr. NADLER. But where do you draw a line? What if he sat down in Starbucks and talked to somebody. That was the hypothetical given us by the counsel to the Assistant Attorney General.

Mr. COMEY. Right.

Mr. NADLER. I mean, we hope we don't live in the world of the wonderful show that I like to watch every Monday night, ''24,'' where anything goes. I mean, yes, any suspicion based on anything, if there are no standards, if the king can give a writ of assistance to anybody in 1760, yes, it might help an investigation. But you have to have some protection.

Mr. COMEY. Yes.

Mr. NADLER. Where do you draw that?

Mr. COMEY. And it's a show that always shows the prosecutors as the real namby-pambies.

But it's a hard question to answer. I cling to the relevance standard. I don't believe first of all, I'm not sure you could obtain some of those records under NSLs, given the limitations on the material that they can obtain. But they wouldn't be relevant. But I worry, if you import this. And I'm not saying it's unreasonable to suggest when you put that standard in.

Mr. NADLER. Let me ask you one further question before my time runs out. In Doe v. Ashcroft, the New York District Court held NSLs unconstitutional because the issuance of these letters is accomplished without any judicial review and are subject to an indefinite gag rule. Given this decision, do you agree that additional legislation may be warranted?

Would you work with this Committee to legislatively clarify that an NSL recipient has the right to challenge both the requests and the gag orders in court? Would you support a congressional effort to permit the recipient of an NSL to disclose receiving such a letter in order to comply with the request, and/or to consult with legal counsel?

And finally, would you have a problem with Congress setting a 90-day time limit for the gag orders based on exigent circumstances, with the possibility of 180-day extensions available from the court of appeals?

Chairman SENSENBRENNER. The gentleman's time has expired, and the witness will answer the question.

Mr. COMEY. We will work with you on all of that. I know there is legislation that's pending to address some of those. I don't think we've taken a position on it. But a lot of it is smart and reasonable.

I don't have that same feeling about the 90-day/120-day. Given the nature of the people that we're dealing with in intelligence investigations, I think the balance has to be struck in favor of indefinite. And at some point.

Mr. NADLER. How about that for conditional renewals?

Chairman SENSENBRENNER. The gentleman's time has expired.

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