Senate Judiciary Committee Hearing on the SAFE Act September 22, 2004 SECTION: CAPITOL HILL HEARING HEADLINE: HEARING OF THE SENATE JUDICIARY COMMITTEE SUBJECT: HEARING ON THE SAFE ACT CHAIRED BY: SENATOR ORRIN HATCH (R-UT) WITNESSES: JAMES COMEY, DEPUTY ATTORNEY GENERAL, JUSTICE DEPARTMENT (This is a partial transcript) SENATOR DICK DURBIN (D-IL): Senator Sununu, who is a co-sponsor of this legislation, when he looked at the lead sponsors, said it tells us one of two things, either that this is truly a bipartisan attempt or that one of these senators hasn't read the bill. I would tell you that we've read the bill. We understand the SAFE Act, and it is a partisan effort, and it is amazing what we've brought together in this effort. Whether you're on the left end of the political spectrum or the right end of the political spectrum, you're going to find support for the SAFE Act. There's one thing that binds us together in the United States Senate -- only one -- and that is our sworn allegiance to the Constitution, and I think Senator Craig may view some portions of it a little differently than I do, but we understand the basic responsibility that we face here, and that's why we introduced this bill. We start with the same premise, both from the Democratic and Republican side, and that is that we have basic rights and liberties -- to privacy, for example -- in this country, and the government has to make the case when it takes away your rights and liberties. If you start with that premise, as the 9/11 commission did, then I think you can understand the SAFE Act. It's what we're all about. I would like today to ask that we call a truce in the war over the Patriot Act. Almost since the day that it was passed, supporters and critics have been engaged in trench warfare. Some people have resorted to falsehoods and scare tactics. I know everyone in this committee rejects those tactics, and I think we should move beyond it. And there are some things that I think we can basically agree on. First, the Patriot Act is a deeply misunderstood law. It's really complicated, a highly technical statute, 130 pages long. Most Americans haven't read it, many members of Congress may not have had the time to read it, and one critic said, "Trying to read the Patriot Act and understand it is like standing outside a library in the middle of the night listening to the mice chewing on the books and try to figure out what the content to the books happens to be." That's not a misstatement or an overstatement, I think, when you consider some of the vague references and technical references in the Patriot Act. Many policies people attribute to the Patriot Act have nothing to do with it. Let me give you an example: the detention of U.S. citizens as enemy combatants. I've been critical of this policy, but let's be clear: That doesn't have a thing to do with the Patriot Act. Second, the fact the Patriot Act is misunderstood does not mean the public concerns about civil liberties can be dismissed. As I said earlier, if you start with the premise that we have certain rights and liberties, God given, and that the government has to justify taking away those rights, this is truly a legitimate inquiry as to whether the Patriot Act went too far. Third, the Patriot Act shouldn't be a political football. Let's be clear: The Patriot Act sunset clause applies to less than 10 percent of the law, only 15 of 158 sections. These provisions are scheduled to expire on December 31, 2005, over 15 months from now. We picked that date, which is not during an election year, for good reason. We wanted to keep the Patriot Act out of politics. And let me at this time salute you, Mr. Chairman, as well as Senator Leahy. I remember how the Patriot Act was born. It was a bipartisan effort at a very worrisome time in America's history, and I thought the two of you did your level best to come together and present something to us which was bipartisan, but to provide within the law a sunset provision so if we made a mistake in our fear or in our haste, we could correct it. Fourth, Congress should debate the Patriot Act thoroughly before reauthorizing it. I think that's something that goes without saying. And, fifth, as I said earlier, the burden of proof for retaining the expanded powers of the government under the Patriot Act is on the government, not on the American people. The American people should not have to prove that they have a right to privacy. The American people should not have to prove that before their government can search their homes or tap their phones. Frankly, the American people have the responsibility of establishing why they shouldn't be tapped. Here's where we disagree. Our debate over the Patriot Act is really limited to a small number of controversial provisions. We understand the Patriot Act was passed at a time of national crisis. The White House came to Congress and asked us to pass it to give our government more power to protect us from another 9/11 incident. As I said earlier, members on both sides of the aisle worked to improve it. I want to at this point really salute one of my colleagues who is here today, and that's Senator Feingold. During the course of the debate on the Patriot Act, I thought he offered amendments on the floor of the Senate which were thoughtful amendments, which really get to the heart of some of the issues that are addressed in the SAFE Act. It was not an easy time to offer those amendments and to suggest that the government was going too far in the passage of the Patriot Act. Senator Feingold, thank you for your courage and your leadership. I think, frankly, more of us should have been more carefully attuned to some of your arguments during that particular moment. Mr. Chairman, there is no perfect law, with the possible exception of the 10 Commandments and several laws that you've authored. (LAUGHTER) Now with almost three years... HATCH: It's always nice to have recognition of that. DURBIN: With almost three years of hindsight, isn't it appropriate we ask some important questions? I think Senator Craig has really gone to the specific issues, and we can point to a broad coalition of groups that ask the very same questions. When the American Conservative Union and the American Civil Liberties Union are standing together asking these questions, I think it points to the legitimacy of what we're about with the SAFE Act. Unfortunately, the SAFE Act has been caught up in the war over the Patriot Act. I can't remember a time in over 20 years that I've been on Capitol Hill when any administration has announced in advance when a bill was introduced that they were going to veto it, but they did on the SAFE Act. Before there was a single hearing, before there was a single amendment offered, the administration announced, "The president will veto this bill." I think that's a singular distinction. I don't know if it's a singular honor, but I can't recall this ever having occurred. And the administration said this bill would eliminate some Patriot Act powers and, quote, "make it even more difficult to mount an effective anti-terror campaign than it was before the Patriot Act was passed." These objections from the administration are just not accurate. The SAFE Act does not repeal one provision in the Patriot Act. It doesn't amend pre-Patriot Act law. It retains the expanded powers created by the Patriot Act, but it places important limitations. Senator Craig has spelled them out. When it comes to roving wiretaps, it would eliminate the John Doe roving wiretap. It would say to the government, "Specify the person, the phone that you're going to tap." That's all. On sneak-and-peek searches, it would say that after a period of time, seven days, that the government would notify you that your home has been searched, and we put provisions in there for exceptions, someone's life's at stake, evidence is about to be destroyed. There are exceptions to that notification. And when it comes to the library issue, if you have been home and met with librarians to discuss this issue, you understand why the Boise public library has put this notice up, why many libraries across America are warning Americans that what they do in a public library may be compromised by the Patriot Act. That's an indication to me that we need to sit and take a look at this. These are not wild-eyed people. These are folks in libraries who are committed to some of the most basic principles and freedoms of America, the right to privacy, and when they are as concerned, as has been expressed by Senator Craig and many others, we owe it to them to step back and take notice. Mr. Chairman, I'm not suggesting our SAFE Act's perfect. Senator Craig and I are open to suggestions. I hope this committee will be willing to work with us on a good faith bipartisan effort to really come up with a modification to the Patriot Act which does not compromise national security, but preserves and protects the rights and liberties of the people of this country. Thank you, Mr. Chairman. *************************** FEINGOLD: Thank you, Mr. Chairman. Where to begin on this. I respect your comments, Mr. Comey, about the way in which this law has been distorted on both sides across the country, but I would submit to you the reason it has gotten so bad with regard to the critics of the bill is the constant inability of this administration to talk about the actual issues within the provisions, and I regret that you just continued that practice, I'm sure not intentionally. But let's take the examples of the provisions that were just discussed. The chairman walked you through a number of questions in order to try to determine under Section 213, the sneak-and-peek provision, that, in fact, delayed notification is something we need. No one disputes that. No one has ever disputed that. This is a technique that is being used on this legislation over and over again from the attorney general's appearances around the country to take a red herring, whether it be the unanimity on taking the wall down between the CIA and the FBI or the need for delayed notifications or the need to be able to use roving wiretaps. They say, "Well, we need this." Well, everyone agrees. That's not the issue here. You said it took four minutes to explain it. Well, you didn't get at the heart. You didn't get at the issue that Senator Craig and Senator Durbin carefully explained, which is the problem here is not that we don't believe there are many cases, many of which I support, where we need delayed notification, it's that the notification put in the statute is indefinitely delayed. There's no time limit. You guys don't have to come back to the judge in seven days, as many of the circuits prior to this required, and say, "We need this renewed." There's no limit. It's a "reasonable time," but there is no actual limit. That's the issue. So, when the chairman tries to raise the rhetoric here by suggesting that somehow there's somebody on this panel -- and, frankly, anybody that believes we shouldn't have delayed notification in some cases -- that's not the issue. You're going to continue to have this public relations problem, and you've got a big one. Unless you guys start talking about what the actual issue is here. Of course, the other issue with regard to Section 213 is how you get in that window. As I said, some of these exceptions, flight from prosecution, destruction or tampering with evidence, obviously, those are the kinds of provisions I support. But there's another exception: otherwise seriously jeopardizing an investigation or unduly delaying a trial. I would suggest that that is so broad -- and my colleagues, 20 of us, agree on this, including many Republicans as well as members of this panel -- that it really does undercut what I think most Americans believe is their Fourth Amendment right not just to a search warrant, but to notice for that search warrant, except for in very limited circumstances. So that's the issue on Section 213, and it has not been addressed this morning. All we're trying to do here is to fix it. It's actually a very conservative position to try to fix that, the same thing with Section 215. I'm intrigued by your wondering why this could become the library provision. I understand, I've always understood that it has much broader implications. The library is a very special place in Main Street, America. The sanctity of the library has always been something that all of us grew up to believe in. That is sort of the ultimate place where you feel that your right to privacy and your First Amendment rights exist, and so it should come as no surprise to this administration, if they're listening to people, that this is scary to people. And, again, when you talk about the provision and when the chairman talks about the provision, you ignore the fundamental fact. No, the court is not a rubber stamp. The rubber stamp is written into the statute. There is no standard of proof or even relevance as there is in a grand jury proceeding. All it requires is the FBI has to say that the information is sought in connection with a terrorism investigation, and the judge has no discretion, Mr. Chairman. The judge has no discretion. The judge must issue the order. And why is this different than a grand jury proceeding? The chairman was walking through the whole grand jury issue. It made me wonder when I was going to get a chance to respond. You know better than I do, much better than I do, but I know enough to know that in a grand jury proceeding the subject of the subpoena knows that this subpoena has come to him or is coming his way. He has a chance to challenge that before the judge. He has a chance to quash it. Under this law, the person isn't even told that this has happened. That's a world of difference between a grand jury proceeding and this secret court proceeding. So I want everybody to know that what we're trying to deal with here is not stopping the government's ability to get at library records. I tell people at my town meetings, "Look, if any one of you had lunch with somebody in Al Qaida last week, I want the government to get everything you've got." But for the FBI to have the ability to walk into a judge and say, "Look, you're giving this to me. You have no discretion," is a frightening intrusion, a frightening concession of power that goes against, in my view, the Constitution of this country. So, Mr. Chairman, I apologize for my eagerness, but this is terribly important stuff, and I respect every one of my colleagues. You all disagreed with me on whether to vote for the bill or not. I respect that. That was a tough call. We didn't have very much time. I took extra time because I was chairman of the Constitution Committee, and I thought, "Well, it's my job." I didn't like what I saw. Well, I admire my colleagues here for their willingness to say, "Look, let's fix it." That's all I ever wanted to do. I thought I was going to be able to vote for the bill. When I saw the good work of the then ranking member and Chairman Leahy at the time, I thought these problems would be resolved. Unfortunately, the process melted down. But, today, very reasonable senators are simply asking that you honestly engage in a discussion about how to fix these provisions in a way that does not in any way, shape or form harm your goals with regard to delayed notification or with regard to legitimate opportunities to get at people's business records or library records. So, Mr. Chairman, I appreciate the additional time, and let me move to a question for Mr. Comey. Last month, in response to a question at the Judiciary Committee hearing on the 9/11 commission report, Vice Chair Lee Hamilton was discussing the need for a Civil Liberties Oversight Board, and he commented on powers that Congress had given the FBI, DHS and other agencies after 9/11 and how those powers have been used. He said, quote -- and I don't know if people heard this comment by Mr. Hamilton, but I thought it was pretty amazing -- "It's highly classified. I can't talk about it except to say it is an astounding intrusion -- astounding intrusion -- into the lives of ordinary Americans that is routine today in government." In your testimony for this hearing today, you said, "The Patriot Act provides for ample judicial, congressional and public oversight to ensure that the civil rights and civil liberties of all Americans are protected," and then you go on to list the various efforts of the Department of Justice to provide oversight. Now I'm a member of Congress, and I'm on this committee, and I don't know what Lee Hamilton was referring to. Almost all of the steps you mentioned that are being taken to protect the privacy and civil liberties of Americans involve people already within the administration. It's as if we in Congress have been asked to trust the foxes to guard the hen house. What is the department doing to ensure that Congress has the necessary information to make real assessments about whether or not privacy and civil liberties of the American are protected and what steps beyond those already required by law do you believe should be taken to ensure that the American people can trust that their rights are being protected? COMEY: Thank you, Senator. We care, as the members of this committee do, passionately about the civil liberties and the freedoms of our fellow Americans. We are addressing concerns about how we're using our authorities. One of the ways is by complying with our oversight obligations to make sure that Congress knows how we are using FISA in a classified setting, if necessary, how we are using the Patriot Act, how often we're using 215 and things of that sort. We are cooperating with our inspector general who is charged with, under Section 1001 of the Patriot Act, as I recall, entertaining, receiving and investigating complaints of abuses under the Patriot Act. We are answering to federal judges and seeking to use these tools the way they're designed, which is through federal judges and through making showings in writing and under oath to obtain warrants and process and many of the things that you've mentioned. With respect to the Civil Liberties Board, I chair that board, and I am somebody who takes very, very seriously my commitment to my oath to uphold the Constitution of the United States, and that board is not going to be some sort of Potemkin board. You're absolutely right. It's made up of people inside the government, but, in my experience, people who care passionately about this and who are, many of them, career people like myself who care so much about the reputation of our great institution, the United States Department of Justice, and our government as a whole. I know there have been proposals for a board created of outsiders, and, frankly, I don't think that's necessary, to create a board that is outside the structure of our government when we have an executive branch who has an obligation and a legislative branch that has an obligation to oversee our actions. FEINGOLD: Mr. Hamilton's not known for somebody that exaggerates in his comments. What can you say in a public setting about his words that there are astounding intrusions on the people's personal liberties? Do you have any idea what that is? COMEY: Maybe I missed it in clips, but the first time I've heard the statement was when you quoted it, Senator, and I don't know what he's referring to. FEINGOLD: Let me ask you quickly, and then, again, I'll wait for another round. We talked about the reports, and you were talking about how your agency is coming up with the information with to the Patriot Act, but the Patriot Act requires the attorney general to provide Congress with semi-annual reports on the use of Section 215, the so-called library or business records provision. The latest report covering the period July through December 2003 has still not been received by the committee. It was due at the end of June. The department already told us last year that it had never used Section 215 as of mid September 2003. That means we only have three-and-a-half months left in that reporting period. How could it be so hard to pull together this report and submit it to Congress? I'd like to know what the holdup is, especially in light of the fact that Mr. Goss, who will undoubtedly be confirmed today as our CIA director, said the other day suddenly that the provision has been used. Why aren't we getting the reports required by Congress, and when will we get them? COMEY: Well, Senator, you're exactly right. The report has not come in yet, and I've asked that same question myself. The Section 215 report -- I'm not permitted in this forum to say the number -- would not take long to assemble. I think what's happening is the department has an obligation to report on FISA broadly, and so the preparation of the report about FISA searches and FISA electronic interceptions is very complicated, and so they're putting it all together in one package, as is their obligation. I've asked, "Why don't we just sever off 215 and send it?" I'm told that I'm never supposed to commit to any particular dates in a bureaucracy, but I believe, by this Friday, that report will be up in Congress. FEINGOLD: Thank you, Mr. Comey. Thank you, Mr. Chairman. HATCH: Thank you, Senator. Let me just clarify one thing that I think I didn't make clear in our interchange. The delayed notice was available in criminal cases before the Patriot Act, but now that the Patriot Act provision on delayed notice -- that's Section 213 -- governs, it governs both criminal and terrorism cases. I'm right on that, aren't I? COMEY: Yes, you are, Mr. Chairman. HATCH: OK. So the SAFE Act would make it even more difficult to get delayed notice in criminal and terrorism cases, not just terrorism cases, but in criminal cases well. In other words, harder than it was to get delayed notice before the Patriot Act. COMEY: It covers both kinds of cases. Yes, Mr. Chairman. HATCH: So, in other words, it would be even more stringent even on domestic crime and certainly more stringent than the Patriot Act on terrorism. COMEY: Yes, Senator. As Senator Feingold noted, it would remove two provisions that allow delayed notice where there's a risk of serious jeopardy to investigation or undue delay of a trial or intimidation of witnesses, both of which were part of -- in different circuits -- the judicially created delayed notification rule. HATCH: I just wanted to have that made clear. FEINGOLD: If I could clarify that point, it's my understanding that Mr. Comey is right that we do eliminate the provision relating to jeopardizing the investigation or duly delaying a trial, but intimidation of potential witnesses... (OFF-MIKE) FEINGOLD: All right. Fine. All right. I strike that. I stand corrected. CRAIG: Well, I'll be very brief. First and foremost, Mr. Comey, I tremendously respect your experience and your talent. I feel handicapped when talking about these issues because I'm not an attorney, and that says, therefore, I've never had need to study the law or to practice it in detail the way you have. But I do think I have some understanding of how it works. In the issue of delayed notice or sneak-and-peek -- and I can understand why you choose not to use the word "sneak-and-peek" -- I was sitting here applying it to the circumstance that you were giving us of actual practice as it related to that drug crowd moving into Richmond, and I was saying, "Is there anything in the SAFE Act and its provisions that would have stopped you from continuing to do exactly what you did with the way you did it and the successful way you accomplished it?" I concluded there was not. Now I would suggest this: Our provision does not tie your hands with a heavy cable. It ties your hands with a satin ribbon. There's a slight tug in seven days. You have to go back to the judge and, therefore, gain an extension and another and another, and, in the circumstance that you so vividly painted, would you suggest that a judge would not have extended that? Now let me add to that. We went to the Justice Department and asked, "What is the average time that a judge allows?" and the word was seven days. If it takes eight or 10 days, if that's more practical, I'm willing to amend or adjust or change, but to suggest that an uncontrolled extension of time or no time and to suggest that a judge is going to be dutiful in saying, "Gee, I think it was about seven days ago they came to me. I better check in on that," that's not going to happen either. But the question is simply this: Would these provisions -- and I think you accurately said there are adjustments around the edge -- have changed your ability to do what you did in Richmond? COMEY: No, I don't believe that it would have, except, as you said, Senator, we'd have to go back to the judge. I can't remember exactly whether you can extend it for 60 or 30. We'd have to go back every seven. The case that I mentioned with the seizure of the ecstasy, I think that would be affected. Richmond we could peg with the lives in danger. CRAIG: Sure. COMEY: The one with the ecstasy case where the interest was in making sure they were able to arrest all the bad guys the next day, I think, although I could make arguments to try and shoehorn it someplace else, that I would need that serious-jeopardy-to-an-ongoing- investigation prong there. But you're exactly right. The seven days is not the end of the world, and I explained in my opening why I approach it, though, from a presumption that it's not broken. CRAIG: And, see, I look at it from a different perspective. I don't want your hands to be tied, but I want to make sure that you recognize the importance of the law and the right of a free citizen, and so there has to be a little test, a stronger test, a slightly tougher test, not a tripwire but a tether rope that tugs at you and causes you, the law, to do the right thing. I have never questioned you not doing the right thing. I'm too respectful of you and the work you've done, and I say that both to you individually and collectively. But I know why you're good at what you do, because the law is specific. If it were not, you would do it differently in certain circumstances and certain cases under certain conditions because you're human and so am I, and we want the law to go beyond that. That's what we try to do. You know, Senator Feinstein was right. We don't repeal. We're all -- I am -- for the Patriot Act. But I am for some slight safeguards along the way. Now let me ask this. In relation to Section 215, opponents of the SAFE Act are emphasizing the involvement of FISA judges. However, how much discretion does the judge really have when the threshold standard sought for an international terrorism or intelligence investigation is so low and the possible result obtaining sweeping records is so severe? I think Senator Feinstein put it one way. I put it a slightly different way. COMEY: I think that Senator Feingold stated it accurately, that the judge is not required to make any showing. That's true, though, in a host of provisions under which we obtain information. For example, pen registers: To record the numbers dialed from a phone and the numbers received from a phone, all we have to do as criminal investigators is represent that it's relevant to our investigation, and the judge has no discretion to deny a pen register. The reason that I don't think that should concern people is people need to focus on what's being obtained. We're obtaining records, pre-existing records, under 215 that can be obtained, frankly, with no showing under a grand jury subpoena. I think folks tend to mix together searches and things of that sort. This involves going to someone who has pre-existing records, serving process on them and obtaining that. In the criminal side, as I said, that requires no involvement of a judge. In 215, it involves a judge reviewing a representation that it sought in connection with the appropriate investigation. So you'll see that the adjustments we've made to 215 and the proposed SAFE Act amendments as tremendously tying your hand or just causing you a little tougher test? COMEY: Well, the express insertion of a relevancy test would not significantly tie our hands, because it's implicit anyway. That's the way we read it already. What would tie our hands so if there's a requirement that an investigator make a showing of specific and articulable facts to believe that the person is a terrorist. We're often getting anonymous tips and going out secretly, because we don't want good people to be smeared, to get records in criminal cases and in counterterrorism cases. If we ever have to make a showing before we can get the records to check out the tip, we've established a very serious hurdle. That's the part that concerns me most. CRAIG: I don't dispute that's a tough call. That's also what protects a lot of free citizens. Thank you. HATCH: Senator Durbin? DURBIN: Thank you very much. Mr. Comey, thank you for being here. Thank you for serving our nation. I have to tell you that, though I have many differences with Department of Justice, I have the highest respect for you. I think you've served our nation well in many capacities and continue to do so to this day. Thank you for joining us. Let me also say that I am relieved to hear you say that the SAFE Act, in your words, would result in a modest change to the Patriot Act. That is a dramatic change in tone from the statement made by the attorney general who described the SAFE Act as, quote, "unilaterally disarming American defenses, risking American lives, eliminating some of the Patriot Act's most critical new tools." I think you're right. I think our changes are modest and are specific, and we are prepared to discuss with you and with every member of the committee the best way to deal with it. Let me say as well that I'd like to go through three or four areas that we've talked about here and then leave it open if you'd like to make a note or two at the end for your comments on each. Section 213, delayed notification: You said at one point keep in mind that we're talking not about a constitutional right to notice, but a right created by federal rule. I believe you said Rule 21. And yet if you read the decision, one of the circuit decisions in Frey tests, here is what they said: "The absence of a notice requirement in the warrant presents a much more difficult issue." "While it's clear the Fourth Amendment does not prohibit all surreptitious entries, it's also clear that the absence of any notice requirement in the warrant casts strong doubt on its constitutional adequacy. "We resolve these doubts by holding that in this case, the warrant was constitutionally defective in failing to provide explicitly for notice within a reasonable but short time subsequent to the surreptitious entry. Such time should not exceed seven days except upon a strong showing of necessity." So the court disagrees with you. They argue it's a Fourth Amendment issue, it's a constitutional issue. We all envision a person knocking on the door, saying, "I have a warrant to search your home." That's notice. Now we're talking about a situation where agents search your home and you don't know it. You don't know they've been in your files and your computers and your closets, that they've looked at everything in your life, and you'd never know it. The court has said that really is in the area of unreasonable search and seizure, and I think that's important. Secondly, when it comes to this issue about libraries and whether they're overreacting, I think there's a clear difference, as Senator Feinstein pointed out, between grand jury subpoenas. You are given notice of a grand jury subpoena they're about to take your record. You can go to the court to quash that subpoena and say it should not issue. Secondly, you clearly aren't dealing with a gag order situation. You're being given notice that the search is about to take place and the records are about to be seized. And, finally, the standard in the Patriot Act, I hope you will concede, is lower than the standard of relevance that is required when it comes to grand juries. In other words, the government has to make less of a case to seize library records, a lower standard than they currently do under a grand jury subpoena, which at least requires relevance. As Senator Feingold has said, it is just a matter that these records are being sought for because of the terrorism investigation. When we asked you how do we know that we can trust the government, you said -- and I think accurately -- a lot of people are looking over your shoulder -- judicial supervision, congressional supervision, inspector general supervision -- but the point made by Senator Feingold is a relevant point. The reports that you're supposed to give us so that Congress can look over your shoulder are long overdue. I'm glad to hear that Friday they'll be coming, and I think that that's important. There's also an argument made on your side that since we've really had no complaints about the Patriot Act, there have been no lawsuits filed, why all the stir, why all the furor. Well, a lot of the people who are being investigated by the Patriot Act may not know it. They may not know that they're the victims of a roving wiretap or an undisclosed search of your home or an undisclosed search of records at a library or a business. So I don't know if you've made your case very strongly by saying people who were not aware that their rights are being violated haven't filed lawsuits. The last point I'd like to make to you relates to the Civil Liberties Board. I think that the 9/11 commission got it right. They said, "At this time of increased and consolidated government authority, there should be a board within the executive branch to oversee adherence to the guidelines we recommend and the commitment the government makes to defend our civil liberties." They went on to say, "Our history has shown us that insecurity threatens liberty. Yet if our liberties are curtailed, we lose the values we are struggling to defend." The Civil Liberties Board, which you've said you support, by executive order is a dramatic contrast from the one that's be entertained by the Government Affairs Committee upstairs. The difference is this: The executive order Civil Liberties Board that the president has created to guard our liberties is a board that is made up of people already in the administration and in the government. It's as if we are saying to a baseball player, "Call your own balls and strikes." Really, what we need is what Governor Kean said when I asked him directly this question, whether the executive order served the purpose stated in the 9/11 commission report. He said that he believed -- and I agree -- we need a disinterested perspective. We need someone with objectivity, someone with knowledge when it comes to civil liberties to really look long and hard at what's being done by the government to see if they've gone too far. I think the executive order creates an in-house operation chaired by the Department of Justice which will not bring this objectivity to the question. The Government Affairs Committee is going to change that, I hope. I invite your response to all or any part of that. Thank you. ******************** FEINGOLD: Thank you, Mr. Chairman. I just have many other questions, but I'm just going to make a couple of comments and ask one more question of Mr. Comey, and I do thank you for... SESSIONS: I recognize you as our ranking member to have these extra questions because we do need to go to the next panel. FEINGOLD: I thank the chairman. I do appreciate this, and I think even though there's some strong disagreements, I see at least a germ of some possibility that some of the changes suggested in the SAFE Act could perhaps be something we could come together on, and I hope that happens. But I'm also very concerned about misstatements and mischaracterizations that have made in defense of the USA Patriot Act. Some people accept these factual lapses as part of our political process, but I cannot. Earlier this month in my own state, the U.S. attorney for the Western District of Wisconsin, J.B. Van Hollen, reportedly told the Hudson, Wisconsin, Rotary Club that, quote, "In fact, September 11 would not have happened if the delayed search notice, a part of the Patriot Act, had existed at that time," unquote. I think that's an outrageous claim, particularly when it's made by one of the chief law-enforcement officers in Wisconsin. No one, not even other administration officials, the 9/11 commission has claimed that the September 11 attacks would not have occurred if the delayed notice provision, also known as sneak-and-peek, and the Patriot Act had been in place. But, more importantly, the delayed notice provision was a well- established legal tool available to law enforcement prior to 9/11, something we've been discussing this morning. That was one of the major arguments made by the administration for including that provision in the Patriot Act. In addition, the FISA law that applied to intelligence investigations also allowed for secret searches prior to 9/11. Mr. Comey, do you agree that delayed notice searches were allowed under the law before 9/11? COMEY: Yes, Senator. As I said earlier, it was a judicially created doctrine that existed across the country. FEINGOLD: Well, sir, what action will you take to address Mr. Van Hollen's misstatement, and what steps will you take to accurately inform the people of Wisconsin what the law and the facts were before 9/11? COMEY: Senator, I'm not familiar, obviously, with what J.B. might have said at that event or whether he's quoted accurately. So I'm really not in a position to say. I know him. I know he's a very fine prosecutor and U.S. attorney, but, beyond that, I just don't feel I'm equipped to comment. FEINGOLD: The words that I quoted from him, though, you would not agree that the delayed notification provisions would have prevented 9/11, would you? COMEY: I don't know what that means, Senator. I'm not aware of an issue with respect to delayed notification and 9/11. FEINGOLD: You have no reason to believe that would be true. COMEY: I have no reason to believe there's a connection there. FEINGOLD: Thank you, Mr. Chairman.

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