Hearing of the Crime, Terrorism, and Homeland Security Subcommittee: Implementation of the USA Patriot Act: Sections 505 and 804

HEADLINE: HEARING OF THE CRIME, TERRORISM, AND HOMELAND SECURITY SUBCOMMITTEE OF THE HOUSE JUDICIARY COMMITTEE SUBJECT: IMPLEMENTATION OF THE USA PATRIOT ACT: SECTIONS 505 AND 804

CHAIRED BY: REPRESENTATIVE HOWARD COBLE (R-NC)

WITNESSES: CHUCK ROSENBERG, CHIEF OF STAFF TO DEPUTY ATTORNEY GENERAL, UNITED STATES DEPARTMENT OF JUSTICE; MATTHEW BERRY, COUNSELOR TO THE ASSISTANT ATTORNEY GENERAL, UNITED STATES DEPARTMENT OF JUSTICE; GREGORY NOJEIM, ACTING DIRECTOR OF THE WASHINGTON LEGISLATIVE OFFICE, AMERICAN CIVIL LIBERTIES UNION; SHAYANA KADIDAL, STAFF ATTORNEY, CENTER FOR CONSTITUTIONAL RIGHTS

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Mr. SCOTT. Thank you, Mr. Chairman, and I am pleased to join you in convening this hearing on sections 505, 804 of the PATRIOT Act, and the material witness provisions codified in sections 3144 and 3142 of title 18.

I'd also like to personally thank you and Chairman Sensenbrenner for acquiescing to the minority's request to hold a hearing on these three topics.

While none of the authorities included in the scope of today's hearing are scheduled to expire at the end of the year, like other parts of the PATRIOT Act, the Department's aggressive use and extraordinary power, particularly contained within section 505 of the PATRIOT Act, and the material witness statute, warrant today's additional hearing.

The material witness statute was originally enacted with the sole purpose of guaranteeing the testimony of a witness during a grand jury or other criminal proceeding. Yet, since September 11, this authority has been routinely used as a pretextual investigatory arrest and detention of dozens of terrorist suspects.

And the arrest of Brandon Mayfield serves as a classic example.

As you recall, he was wrongly arrested and detained for over 2 weeks last year while the Government investigated his suspected involvement in the 2004 train bombing in Spain.

Now, we know that Mr. Mayfield's arrest and 2-week detention as a material witness was pretextual because not long afterwards, Federal agents candidly told reporters that he was arrested simply to prevent him from fleeing while authorities built a case against him. In other words, the Federal agents freely admitted using the material witness statute to make an end run around the fourth amendment barring the arrest or detention of an individual without probable cause of criminal activity.

Hopefully, we can all agree that something must be done to end this unconstitutional and abusive practice.

Now, in section 505, the Department's increasing use of national security letters raises different, but equally important, concerns.

Under section 505, the Federal Government can secretly obtain certain confidential communication and financial records provided the Government maintains that the need of such records is relevant to an ongoing intelligence or international terrorism investigation.

The inherent problems associated with this new authority are numerous.

First, records sought under this provision don't have to pertain to a foreign power or an agent of a foreign power, thus, the confidentiality of records of countless innocent Americans can routinely get caught up in such requests.

Second, instead of requiring the approval of a senior official at FBI headquarters, section 505 authorizes the release of such letters at the whim of a special agent in charge who is located somewhere in a local FBI office.

Third, national security letters are subject to the gag rule, which prevents the recipient from disclosing its receipt, and, therefore, questioning whether it's appropriate.

Finally, the issuance of such letters is accomplished without any judicial supervision or checks and balances whatsoever. Admittedly, with regard to these latter two points, a recent decision by a Federal court in Doe v. Ashcroft may have adequately addressed these concerns, but as I understand it, the case is currently on appeal, and, therefore, additional legislation may still be warranted.

So, Mr. Chairman, I look forward to the testimony of our witnesses on how these extraordinary powers are being used and how we can best provide the necessary checks and balances our system calls for and working with you to implement those changes. Thank you.

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Mr. SCOTT. Thank you.

Mr. Berry, what's-if you want to get these National Security Letters without the normal probable cause or, I thought I heard, without even articulable suspicion, what is the standard?

Mr. BERRY. Congressman Scott, the standard is relevance, which is the same standard that one would use in a criminal investigation to obtain those same records through a grand jury subpoena.

Mr. SCOTT. Now, the records that you're looking for are not the records of the agent of a foreign government but relevant to the investigation of the agent of a foreign government. Is that right?

Mr. BERRY. They would be relevant to either a terrorism investigation or an espionage investigation, and as the example I gave--

Mr. SCOTT. Wait a minute. Espionage? What about foreign intelligence?

Mr. BERRY. No, it has to be terrorism or espionage. I know that you have this concern about FISA where foreign intelligence information is included. That's not in the NSL statutes.

Mr. SCOTT. Okay. So it has to be-at least we're talking about crimes in this situation.

Mr. BERRY. We are talking about terrorism and espionage investigations. That is correct.

Mr. SCOTT. Okay. But the records could be records held by innocent people.

Mr. BERRY. It is certainly--

Mr. SCOTT. If it is relevant to that investigation.

Mr. BERRY. Well, it is certainly possible, and the example I gave with the phone numbers on the terrorist's computer, we need to do some basic information that-investigation that NSLs allow us to do to either get-obtain specific--

Mr. SCOTT. Well, what about phone numbers on the-an associate of the terrorist? If you know that-if you find out one of those numbers he's been calling or an e-mail address and you track down that e-mail, can you get-you can get all that information.

Mr. BERRY. Well, it really depends on the facts of a specific investigation.

Mr. SCOTT. You mentioned one of those numbers may be the cleaners.

Mr. BERRY. Right.

Mr. SCOTT. Okay. So you go to the cleaners and get all his little information.

Mr. BERRY. No, it depends on the facts of a specific investigation. If in the list of phone numbers we discover that one of them is a drycleaners, absent other information, I would say it would be 99.9 percent the case that we would not seek any more information on the drycleaners because, at that point, it doesn't appear to be relevant. But--

Mr. SCOTT. But if you decided it was relevant, you can go get that information. Mr. Nojeim, do you want to comment?

Mr. NOJEIM. Yeah, I do. Take the example that he used in his testimony, the written statement. Somebody is having lunch with an al-Qaeda operative. That alone in the Government's view allows them to get all these records about that person.

Take it to the next step. What if they had a discussion with the waiter? What if they talked? Would that alone also give them access to records about the waiter? They would go to his Internet service provider and obtain records about his activity. They would go to the boat dealer and obtain records about what he bought. There is just no--

Mr. SCOTT. How is this different from the criminal investigation that Mr. Berry talked about, just a normal criminal investigation where the standard is relevance for a grand jury subpoena?

Mr. NOJEIM. It's different in many ways. First of all, remember what we're talking about is a case where there is no judge. There is no proceeding. There's no grand jury. What there is is the Government telling itself that the records are relevant to what the Government is seeking. And it's not that there's a particular charge. It's that the Government has decided that there's relevance. And there's-there's never a test, there need never be a test later on down the road where they have to actually go into a court and say this. They could go right up to the Internet service provider, present the National Security Letter, and get the records, and that's the end, and the person never knows.

Mr. SCOTT. Does the exclusionary rule ever-does the exclusionary rule ever kick in?

Mr. NOJEIM. It could kick in if they charged the person later on down the road, commenced a criminal proceeding.

Mr. SCOTT. Where is the-on the material witness, where is the judge in all this? What warrant do you need from-do you need a warrant from a judge to arrest somebody on a material witness.

Mr. ROSENBERG. Yes, Congressman, you do. You need a warrant from a Federal judge. And the judge also plays a role in the subsequent detention hearing, and the judge also plays a role in receiving the reports required under rule 46(h).

Mr. SCOTT. On the Mayfield case, what information was presented to the judge to justify locking him up?

Mr. ROSENBERG. You're going to find my answer wholly unsatisfactory, but because there's an internal Department of Justice investigation and civil litigation, I cannot comment on that.

Mr. SCOTT. What is the standard for getting the warrant generally?

Mr. ROSENBERG. As set out by the Second Circuit in the Awadallah case and the Ninth Circuit in the 1971 Bacon case, my understanding is it's probable cause, probable cause to believe that the witness is material-in other words, the information would be material-and that it would be impracticable to secure that testimony by some other means.

Mr. SCOTT. Is he advised of a right to deposition and then being released?

Mr. ROSENBERG. Well, he's given an attorney, and he has a right to an attorney, and it's that attorney's obligation to inform his client of what his rights are. We don't interpose ourselves in that relationship. And, by the way, Mr. Scott, if he can't afford an attorney, one is appointed for him.

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Mr. SCOTT. Thank you, Mr. Chairman.

Mr. Berry, how many people have had their records sought through National Security Letters?

Mr. BERRY. Congressman Scott, Congress requires us to file regular reports on our use of each of the National Security Letter statutes. We are up to date with our compliance, and that information is classified, but available to you.

Mr. SCOTT. When you get information from a National Security Letter, how many people can look at it?

Mr. BERRY. That matter is covered by the Attorney General's Guidelines for National Security Investigations. The NSL statutes specifically require that there be guidelines for dissemination and that there only be dissemination when dissemination would be relevant to the person's duties who's receiving that information. So that really is a case-by-case determination.

Mr. SCOTT. Is that subject to the records-sharing, where any national defense and law enforcement and everybody else in town can look at it? Or is that just the FISA information?

Mr. BERRY. Well, section 203(d), which you're referring to, refers to information that's obtained as to law enforcement investigations. The NSL generally is not any law enforcement investigation per se, so it's not really covered by 203(d). It would be treated as other intelligence information is.

Mr. SCOTT. We talked about, under the material witness, the arrest, you need probable cause, Mr. Rosenberg, you need probable cause for the arrest. How is this different from arresting somebody in the normal run-of-the-mill criminal warrant. Well, I guess it would allude to the Mayfield case, because he was arrested on a material witness warrant rather than a criminal warrant. Without referring to that case, what's the difference?

Mr. ROSENBERG. It's the same standard, Congressman, but it goes to a different question. In the routine criminal case, where you seek an arrest warrant, it's probable cause that a crime has been committed and the person you seek to arrest committed the crime. In the regular routine criminal search warrant, that a crime has been committed and-probable cause that a crime has been committed and that the fruits of the crime, evidence of the crime would be at a particular location. Here, it's simply probable cause to believe that testimony of a witness is material and that it would be impracticable to secure that testimony by other means, such as a subpoena.

So it's always probable cause, but it's just a different type of inquiry.

Mr. SCOTT. Well, can you use it against a suspect where his own testimony may-I mean, he was a suspect.

Mr. ROSENBERG. I understand your question, and it's an excellent one. It's not always the case that a witness is just a witness. They may also be a subject or a target of an investigation. It's not mutually exclusive. I mean, if you think of it--

Mr. SCOTT. So you can arrest a suspect if they're a suspect.

Mr. ROSENBERG. Let me finish, because I think I can help on this.

Mr. SCOTT. Okay.

Mr. ROSENBERG. It's almost always the case, or I would say it's probably always the case that someone who commits a crime is also a witness to the crime. You know, just common sense.

So that's not a grand revelation. But if we arrest someone as a material witness and then later learn through other sources that that witness is more than a witness, that the witness participated in a conspiracy or the crime, then they could be subsequently charged. There's nothing that would preclude that.

Mr. SCOTT. Yes, but that's the little problem we have here. You arrest them when they're a suspect, when you don't have probable cause that they're guilty but you kind of think they are, so you use a material witness, drag them in, lock them up, and then go out and make the case, if you can. And meanwhile, they're locked up.

Mr. ROSENBERG. I've heard that criticism.

Mr. SCOTT. Can you get bond while you're under material witness?

Mr. ROSENBERG. Absolutely. Absolutely. Under 18 USC 3142, the Bail Reform Act, which is referenced specifically in the material witness warrant, a material witness arrested on such a warrant is entitled to a hearing under that provision. Absolutely.

Mr. SCOTT. Let me get extraterritorial, very quickly. Have we covered everybody overseas associated with the United States working, military, and otherwise, in Iraq so that they are under somebody's criminal code?

Mr. BERRY. Congressman Scott, it is our belief that Congress has done that. section 804 filled in, with respect to, you know, U.S. military bases and diplomatic bases, kind of the last remaining gap. We believe that you would always be covered either by the Uniform Code of Military Justice, the Military Extraterritorial Jurisdiction Act--

Mr. SCOTT. That's the 2000 law we passed.

Mr. BERRY. Yes. Or section 804 of the PATRIOT Act. And so we don't--

Mr. SCOTT. So you don't have anybody over there associated with the United States Government, playing poker or shooting somebody, not subject to any criminal code?

Mr. BERRY. We're unaware of any jurisdictional gap. Certainly, if anyone has evidence that one exists, we would definitely want to know about it and take a look at it. But I don't think one exists.

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