Hearing of the Senate Committee on the Judiciary

Federal News Service

HEADLINE: HEARING OF THE SENATE COMMITTEE ON THE JUDICIARY
 
SUBJECT: CRIMINAL TERRORISM INVESTIGATIONS AND PROSECUTIONS
 
LOCATION: 226 DIRKSEN SENATE OFFICE BUILDING, WASHINGTON, D.C.
 
WITNESSES: CHRISTOPHER WRAY, CHIEF OF THE CRIMINAL DIVISION, DOJ PATRICK FITZGERALD, UNITED STATES ATTORNEY, NORTHERN DISTRICT OF ILLINOIS PAUL MCNULTY, UNITED STATES ATTORNEY, EASTERN DISTRICT OF VIRGINIA

BODY:
SEN. RICHARD DURBIN (D-IL): Thank you very much, Mr. Chairman.

I want to thank those who are here before the committee today, particularly Pat Fitzgerald, who comes to us from the northern district of Illinois. And I was happy to support Senator Fitzgerald's -- no relation -- nomination of Pat Fitzgerald. He's done an excellent job as our U.S. attorney and may be one of the most knowledgeable people on this whole subject of terrorism.

So I'm looking forward to his testimony. Though we may disagree on a point or two, I certainly respect him and all the other witnesses who are before us.

But the point's been raised over and over again, there's an empty chair here today, a chair which should be filled by the attorney general of the United States, who frankly has been a rare visitor to Capitol Hill when it comes to justifying his administration's process and procedure that they're using to fight terrorism.

It really strikes me as indefensible that we are here in the Judiciary Committee, reviewing the most critical piece of legislation involving civil rights and liberties in America, and the attorney general of the United States is too busy to be here. I don't understand that. I don't think it makes any sense. And I don't think it's fair.

And it isn't just a matter of his personal appearance. I've had an experience and other senators have had that this Department of Justice is unresponsive to letters and requests for information. They really believe that they are above it all, that oversight is not something that they really have to submit themselves to. In the name of fighting terrorism, they are ignoring their basic constitutional responsibility.

Now, I'm glad that the people who are before us today will be able to answer questions, but Attorney General John Ashcroft should be in one of those chairs before that microphone answering the questions that we've had raised by citizens all across America about the Patriot Act. And I think the fact that he's not here is a sad commentary on this administration's attitude toward its constitutional responsibility.

Put in historical context, the Patriot Act, it was passed at a critical moment in the history of the United States. It was a moment of tragedy. It was a moment of fear. It was a moment when we moved, at the government's suggestion, to give our government more powers to apprehend those responsible for crimes of terrorism. And there were misgivings on our part.

Many of us on this panel wondered, "Have we gone too far? Have we given the government more authority than we should have, more than it needs? Have we infringed on the Bill of Rights that we've all sworn to protect on both sides of the table?" We weren't sure. But because we were certain that we wanted to make America safe, we voted for this Patriot Act.

And now come voices back to us asking questions about whether we did go too far. And I listened to Senator Feinstein, and I think she's probably right. If you ask the average critic of the Patriot Act, "Be specific, what is it about this law that you don't like," many are at a loss to be that specific.

But keep in mind what's at play here. Who has the burden of proof when it comes to taking away the rights and liberties of Americans? It certainly is the government's burden to prove that. The individual citizen shouldn't have to make that case. The government ought to stand up and say, "This is why we're taking away your rights and liberties. This is why order is more important than liberty." They have that burden.

And the fact that individuals writing this letter can't give us chapter and verse as to exactly why they're troubled by the Patriot Act, I think, frankly, shifts that burden. It says to the average person in the street, "You have to come up with an explanation of why this government is going too far," a government, through an attorney general, who refuses to be held accountable, refuses to submit himself to the oversight of this committee.

And listen to what that government, what that attorney general says of his critics. When he did appear before this committee in a rare appearance, he said, quote, "To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics could only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America's enemies and pause to America's friends. They encourage people of good will to remain silent in the face of evil."

And that wasn't the end of it. On September the 19th of this year, another quote from Attorney General Ashcroft about the critics of the Patriot Act: "The charges of the hysterics are revealed for what they are: Castles in the air built on misrepresentations, supported by unfounded fear, held aloft by hysteria."

That is what the attorney general of the United States said to those Americans and those senators and congressmen questioning whether the Patriot Act went too far. And that, I believe, is why he's not at the table today, because if he were held to the same standard of proof of why this government needs to take away our rights and liberties, I think he would be at a loss.

Now, people on both ends of the political spectrum have come together, right and left, and said there are at least three areas of this law that went too far. And the government, in response, has said, "Well, we haven't even used them." Well, it's two years after September 11th, and if you haven't used them, perhaps you don't need them. And frankly, those you have used -- sneak and peek, for example -- raise serious questions as to whether they infringe on our constitutional rights.

I hope, Mr. Chairman, the next time we have a meeting of this committee, the attorney general won't be too busy to come before us and be held accountable, to be subjected to the oversight that this committee, I think, has a responsibility to exert on behalf of people all across America who believe, as I do, that the presumption is on the side of American citizens in protecting our rights and liberties, and the burden is on the government to prove time and again that they have to infringe on those rights and to establish new law.

Thank you, Mr. Chairman.

BREAK IN TRANSCRIPT
SEN. DURBIN: Thank you, Mr. Chairman. And thanks to the witnesses before the committee.

Mr. Wray, when the Patriot Act came before us and the issue of wiretaps came up, a point was made, I think very effectively, that the wiretap law in the United States had been written at a time before cell phones and before a lot of other forms of telecommunication, and that if we were going to be successful using wiretaps to go after those who were responsible for 9/11 or those who would do similar things, that we had to reform this law and bring it up to date. I thought that was a very compelling argument and was one of the explanations I gave when people asked me why I voted for the Patriot Act.

It strikes me, though, that we have to not only make certain that our law reflects new technology, but also to do everything we can to make certain that there's no abuse of the power of the government to wiretap; specifically that innocent people would not have their conversations wiretapped.

In that light, can you tell me why, when it comes to these roving wiretaps, you believe it is unreasonable to ask the government to identify the target of the wiretap or the place to be wiretapped?

MR. WRAY: Senator, in the connection with roving wiretaps, the people who are the subject of those sorts of investigative tools are people who, by definition, are those with whom we've had the most trouble tracking and intercepting. And therefore, I think the government has had considerable concerns about making sure that the technique in question is -- that the applications of it and the details of it are kept as confidential as possible in order not to jeopardize the investigation.

SEN. DURBIN: So let's get down to the bottom line. If you're going to wiretap someone, if you're going to tap their phone, you don't call them in advance and say, "Incidentally, your phone's going to be tapped." That would defeat the whole purpose.

So the target of the wiretap is certainly kept in the dark if this is going to be successful. Why is it unreasonable for the government to disclose to the court, when asking for a roving wiretap, the name of the person that they want to tap?

MR. WRAY: I'd have to look at the particular situation that you're describing. It's my experience that roving wiretaps have been handled consistently, effectively in investigations. They've been used fairly sparingly and they haven't been abused.

SEN. DURBIN: Well, I'll just say this. The bill that we've introduced, Senator Craig and myself, a very unlikely duo for legislation on Capitol Hill, this is one of the provisions. And it is beyond me to understand why the government should not say to the court, "Durbin is the one we want to wiretap. Now, I don't know if it's going to be a cell phone or his home phone or his office phone, but we're going after Durbin." Now, you're not going to tell him that, but the court ought to know that.

Currently, the roving wiretap does not require that disclosure that Durbin is the person. And all we're saying, as part of our Safe Act and revision to the Patriot Act, is that's not an unreasonable thing to do to make certain that in your quest to get information about Durbin, you don't pick up Schumer and Feingold and all the others on the Democratic side. So the point I'm making here is I don't think this is an unreasonable thing to do.

The point made by Senator Feingold, I think, is equally valid. When we're talking about subpoenaing business records or records from libraries and bookstores, what we're asking for the government to do is perhaps to provide some specificity to the court so as to avoid subpoenaing documents of innocent people.

Shouldn't that be one of our goals here, not only to give you the tools of prosecution, but to always measure them against the rights and liberties of innocent people that may be infringed if the government goes too far?

MR. WRAY: Senator, I certainly agree that our efforts in protecting the lives and liberties of Americans should be always done fully within the bounds of the Constitution. I think that the so- called John Doe roving wiretaps that you're referring to -- I understand that you and Senator Craig have legislation that you've proposed on that subject -- and I gather the department is in the process of formulating a response.

SEN. DURBIN: I sent a copy of it. I sent it to Mr. Fitzgerald, too, so that he could see what we were up to, because I announced this in the city of Chicago. And I'd like to go to a question to Mr. Fitzgerald.

You made a point, and a very valid point, about the difficulty you had in prosecuted cases where there was one camp called intelligence and one camp that was dealing with prosecution through the FBI, domestic law and the like. It's a very important point. And I'm glad that, though the Patriot Act may have addressed this, whatever was holding up this line of conversation and dialogue has finally changed for the better.

But I want to ask you a question. We heard from the GAO that -- and this was the subject of a hearing by Senator Cornyn of Texas -- that nine different agencies still develop and maintain a dozen terrorist watch lists, including overlapping in different data and inconsistent procedures and policies on sharing.

Now, the law that created the Department of Homeland Security required the department to consolidate these watch lists. And the Bush administration has promised that it (happened?), and it hasn't. So when we talk about the wall between intelligence and the ordinary prosecution of crime in America, there are walls that still exist, creations of the bureaucracy of this administration. Would you concede that point?

MR. FITZGERALD: Well, I don't know when the bureaucracy got created. There's been bureaucracy created for a long time. So I don't want to get into the political --

SEN. DURBIN: Inherited by this administration.

MR. FITZGERALD: And I don't want to do one of these "That's not my job," but my friend, Mike Garcia over at Homeland Security, and his colleagues have to deal with the issues there. I think the difference is, all I know is, in going about doing the business of being a prosecutor, what the Patriot Act did for us was tear down the wall when we couldn't communicate.

SEN. DURBIN: I don't want to push you into an area that may not be your area of understanding or expertise.

MR. FITZGERALD: I recognize there's lots of work to be done in lots of areas in making sure we coordinate --

SEN. DURBIN: Progress has been made. Tom Ridge is a great appointment. I think Bob Mueller is doing a fine job. There's no doubt in my mind about that. But the interoperability of computers and the sharing of information on terrorists lists, there is still a wall. And that wall can be broken down, and it doesn't take a new law to have it happen. It can happen with the administration, and it's too slow in coming.

Mr. Wray, my last question to you is on this criminal leak involving Ambassador Wilson's wife. Have you been party to any conversations with the attorney general and discussed the necessity or the possibility of his recusing himself from this case?

MR. WRAY: Senator, I respectfully cannot discuss the substance or details of my deliberations with the attorney general. I can tell you that the attorney general has said, and I believe publicly said, that he has kept all options open and will continue to keep all options open, but that in the meantime he has directed that this investigation be handled thoroughly, professionally, completely, and that it is an active, ongoing investigation.

And I will say that, having seen and known the prosecutors and agents working on this matter, the lead prosecutor has 30 years' experience in this area and the lead agent, who has about the same number of years, that you would be inspired by the professionalism and work ethic and integrity of the people working on this investigation.

SEN. DURBIN: Mr. Wray, we're all students of and creatures of the law and we are familiar with two terms -- impropriety and appearance of impropriety. And I think what we're dealing with here, where the people on the case are the very best professionals that the government could possibly have involved, is just a question, a lingering question, as to whether the attorney general is too close to the people who are being subjected to this investigation.

That is the sole reason for asking for an independent prosecutor, not questioning Mr. Dion, Mr. Schwartz, yourself, or anybody involved in it, but the fact that there is an appearance which lingers over this. There are statements that have been made by some to diminish this. Can I ask you, do you consider this criminal leak to be of a serious nature?

MR. WRAY: Absolutely, Senator. I consider any leak of classified national security information to be a very serious matter, and nowhere more so than when we're talking about the identities of the men and women of our intelligence community. And I think that is the spirit with which everyone in this matter from top down has been approaching the matter.

I will say that when it comes to the issues you're raising about appearance that I would hope that the American people can have the confidence that I have in the people working on this investigation.

And I will also say that it is difficult for me to discuss the kinds of issues you're raising, because it necessarily is based on assumptions about who the targets and subjects of the investigation are, because that's the direction in which you would then be making judgments about how the matter should be handled.

SEN. DURBIN: My thanks to the panel. And thank you, Mr. Chairman.