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. JOHN CORNYN (R-TX): Thank you, Mr. Chairman. And I want to thank, as the other members of the panel have, the chairman and ranking member for convening this important hearing. I was not a member of this body on September 11th, when the terrorist attacks occurred on our own soil; nor was I here when bipartisan majorities of the United States Congress overwhelmingly passed the U.S.A. Patriot Act several weeks later by a vote of 98 to 1 in the United States Senate and 357 to 66 in the House.

I have of course reviewed the record, and I have taken note of the numerous senators on both sides of the aisle who praised that act for strengthening our law enforcement and intelligence tools to fight terrorism while respecting and preserving the civil liberties of American citizens. And, Mr. Chairman, I'd like to ask that a list of some of those statements, representative statements, be made a part of the record.

I'm also aware there have been voices of dissent, critical of both the act and of Congress for approving legislation that in their view deprives individuals of their civil liberties. Thank goodness we live in a country where dissent and free speech are matters of constitutional right. And as an advocate of open government, I firmly believe that only through free speech and open government can we be sure that our liberties are secure, even during a time of war.

There have indeed been wartime deprivations of civil liberties in this country in the past. The internment of Japanese Americans during World War II, censorship of the press during World War I-these things happen. But we should remember that this has been an issue since the earliest days of our history, when the alien and sedition acts of 1794 -- four years enacted-four laws enacted in the wake of hostile actions of the French revolutionary government on the seas, and the councils of diplomacy, including the infamous XYZ Affair.

So I strongly believe it is important for us to monitor our government, to ensure that civil liberties are always adequately protected, even as we take the steps necessary to secure ourselves against terrorism and to stop our enemies who would do us great harm. Mr. Chairman, I do think that so we put this in proper context, we do take due note that the Congress and the administration, including the Department of Justice and all those who are allied in the war on terror, must be doing something right, since thank goodness this country has been spared from further terrorist attacks on our own soil since September 11th. And I think we should always remember and put all of this discussion in that context.

It's because I worry about civil liberties that I worry about hysterical claims about civil liberties abuses. Every false claim of a civil rights violation discredits every true claim of a civil rights violation, and I believe that hurts us all.

I look forward to hearing today's testimony and learning whether the U.S. Patriot Act has served the purpose that Congress intended, and that is to save lives and to protect Americans from terrorist attacks, without harming civil liberties, as I believe and as a bipartisan majority of the 107th Congress believed, that it would, and that I believe the act does. Thank you, Mr. Chairman.

BREAK IN TRANSCRIPT

SEN. JOHN CORNYN (R-TX): Thank you very much, Mr. Chairman. And thank you, gentlemen, for being here today.

I think some of the questions that have come up with regard to the detention of immigrants here under our immigrations laws have been raised by Senator Kennedy and others, and just to be clear, those are provisions of law that have nothing to do with the Patriot Act, is that correct, Mr. Wray?

MR. WRAY: Yes, Senator Cornyn, the provisions under which the individuals who were the subject of the inspector general's report were detained under the immigration laws and not under any provision to do with the Patriot Act. And I appreciate your flagging that issue, because it goes to a subject that several members of the committee mentioned in their opening statements, which-and as did my colleagues and I-that there is a level of confusion in the public discourse about what is and is not part of the Patriot Act. And the Patriot Act, for better or for worse, has become sort of a shorthand for every kind of complaint or criticism that anyone would have with respect to anything to do with terrorism. I think Senator Feinstein acknowledged that very persuasively in her opening statement.

SEN. CORNYN: Well, I think we all recognize the difference between constructive criticism and Congress doing its important job of overseeing-of oversight and reserving the right to change our laws if in fact the laws we passed don't apply or don't-aren't being administered in the way that we intended, perhaps, or we find other gaps that need to be filled. But, I think there's an important difference between constructive criticism and shooting the messenger. As I pointed out in my opening statement, the Patriot Act passed overwhelmingly by both branches of Congress, was signed by the president, endorsed by members on both sides of the aisle, as it should have been, in my opinion. But I'm always amazed that where some refer to such phrases as extreme measures being taken by the Department of Justice, usually in the persona of John Ashcroft, to-in order to perhaps question his motives, or perhaps even vilify him, to criticize the Patriot Act, and I-and I worry, not that people criticize, but that they do so when perhaps misinformed of what the facts are. And, of course, that's the purpose-one of the purposes of this hearing here today.

And just to-just to make one point-another point clear-has any provision of the Patriot Act, since Congress passed it some two years ago, been held in violation of the Constitution, Mr. McNulty, Mr. Fitzgerald?

MR. : I'll defer to -- (inaudible) --

MR. : I'm don't-I'm not aware of any, Senator.

SEN. CORNYN: (Inaudible.)

MR. : No.

SEN. CORNYN: Mr. Wray?

MR. WRAY: No, Senator, none has.

SEN. CORNYN: And among the two provisions of the act that people cite the most often, that cause them concerns-and here again I understand why concerns are expressed, but just to be clear, Section 213, that deals with delayed notification of search warrants, let me ask Mr. Fitzgerald, isn't it true that that delayed notification of search warrants occurs with judicial review and approval, is that correct, sir?

MR. FITZGERALD: Yes. And it did before the Patriot Act under existing legal authority.

SEN. CORNYN: So, Mr. Ashcroft, sitting in his office in the Department of Justice, doesn't decide to issue sort of sneak-and-peak search warrants without some independent judicial officer, some judge who has been confirmed by the United States Senate after nomination by the president, has had a chance to review it and determine that good cause exists for issuance of a delayed notification, is that correct, sir?

MR. FITZGERALD: That's exactly right.

SEN. CORNYN: And likewise, under Section 215, which authorizes searches for business records and other items under the Foreign Intelligence Surveillance Act, Mr. McNulty, isn't it the case that indeed before those searches take place that Article 3 judges on the Foreign Intelligence Surveillance Court in fact have to review the application and approve it?

MR. MCNULTY: That's right.

SEN. CORNYN: I will tell you one thing that does concern me, and that's sort of come up, and I know a couple of times we've talked about immigration-Mr. McNulty, you've discussed it, and it continues to be a concern. And just most recently, Senator Craig, I believe, in his Committee on Aging this morning, reviewed recent General Accounting Office report that has to do with the issuance of Social Security numbers to non-citizens. And I believe the figure was in 2002, some 12.4 million Social Security numbers were issued; 1.3 million of those were issued to non-citizens-an alarming percentage.

And I believe, Mr. McNulty, you talked about one of the concerns in the efforts to fight the war on terror that our law enforcement officials, including your office, is focusing on is I.D. document fraud. Could you please just address whether you would be similarly concerned with the issuance of Social Security numbers to non- citizens?

MR. MCNULTY: Well, I don't have a position on that policy change, but I certainly am concerned about anything that would undermine the integrity of identification systems, generally speaking, and I don't know if that would actually cause that to happen. We are seeing just the widest range of identity document fraud, just from birth certificates to Social Security cards, drivers licenses, you name it. Often, the vendors provide all of those documents fraudulently for various prices. And we also look at Social Security fraud and the use of numbers, either that have been fraudulently established or have been stolen from someone else. We look at that very aggressively. We look at those individuals who give those numbers to obtain commercial drivers licenses, or FAA pilots licenses, and then try to trace back who those individuals are to prosecute them for that fraud. So, it's a very widespread and significant problem, and I'm not really in a position to comment on that particular policy change that I know is being debated in many places in the country.

SEN. CORNYN: Well, just as you're concerned about those who fraudulently produce fake identification for those who are not entitled to receive that as an official document, would you be concerned about the United States government, including the Social Security Administration, issuing Social Security numbers and cards to those who are not legally entitled to have those?

MR. MCNULTY: Well, again, our primary concern from the law enforcement is to make sure that someone is who he or she says they are. They have to-it's the question of matching up the true identity with the number or document, whatever it might be. That's more of the focus we have from a law enforcement perspective, rather than who actually is the possessor of that number. It's a different question for us.

SEN. CORNYN: I understand your very carefully stated answer, and I'm not trying to get you in trouble with your superiors or others, but what I'm merely trying to point out is that false identification, whether it's sold by someone who is in the business of illegally manufacturing those documents, perhaps to those who would threaten us and perhaps kill our citizens, that, I believe, is as much a problem as it is when the federal government, perhaps through neglect, oversight, or otherwise issues a government document, which is the primary identification card for American citizens, to people who are not entitled to them.

And I would say that, you know, this-the more I-the more I hear about how much of our document-documents are abused, how much we do not seem to have a good handle on the number of people who, frankly, are here in this country illegally and who are under final orders of deportation-some 300,000 at last count-when we don't know where they are, or whether it's the fact that perhaps eight to 10 million people are living illegally in this country now, and we simply don't know for sure where they are and their purpose for being here, just adds to my concerns about what we need to do in terms of comprehensive immigration reform, because I think until we get a handle on that, that we cannot truly say that we have done what we need to do in terms of homeland security.

Let me just-I know my time is just --

SEN. HATCH: Your time is up.

SEN. CORNYN: It is up? Okay.