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Senator Feingold Transcript

The transcript below is an excerpt from the Senate hearing in your required reading (I/S: A Journal of Law and Policy for the Information Society, vol. 2, no. 3 (2006), 485-520.) You will need to concentrate on this section of the reading for your assignment. 

1. Senator Feingold Transcript

First of all, with regard to the point Senator Cornyn was just making and the Attorney General was making, I want to clarify one thing about the recent decision striking down a national security letter authority that is expanded by the PATRIOT Act. The law that the court struck down was very different from the law passed in 1986. While the court focused on the lack of procedures, it was in the context of a law that allowed FBI agents to obtain records and even entire databases under a much different standard than was originally passed.

Mr. Chairman, I would say the Senator from Texas is simply not correct to say that the court struck down only the 1986 law. It struck down a law dramatically expanded by the PATRIOT Act. There is your example on the record of a provision of the USA PATRIOT Act that has been struck down.

Mr. Chairman, thank you very much for holding this hearing. I am pleased that we are beginning our review of the PATRIOT Act early in the year, and I want to thank you very much for your commitment to taking the time necessary to review the executive branch's exercise of Government power since September 11th. I am heartened that this year Congress will have the time and the perspective that we did not have in 2001 to carefully and calmly consider the many expanded Government powers in the PATRIOT Act.

As we all know, the PATRIOT Act was proposed days after the horrific September 11th attacks, and the bill was passed and signed into law just a little more than a month later. I tried, in that emotionally charged time, to convince my colleagues that some provisions went too far and needed to be revised, but my amendments were rejected, although, Mr. Chairman, I want to note that you supported me in some of those efforts, and I will always appreciate that.

Now, today, after three-and-a-half years of the Justice Department adamantly opposing any changes, and in some cases belittling critics, we have here today the Attorney General of the United States coming before us to this Committee to announce that he, too--he, too--recognizes the concerns about the PATRIOT Act are not so farfetched and that changes must be made. So we have come a long way.

Attorney General Gonzales, I wish this day had come sooner, but I am delighted. I need to understand more about the changes to Section 215 that you are proposing, since they were not mentioned in your written testimony submitted yesterday, and it is possible that we will disagree about whether your changes are adequate to address the concerns of the American people, but this is a departure from what we have heard before. It is a good start. Having now taken this step, I hope we can have a productive dialogue that has been missing for so long.

I look forward to working with you, Mr. Chairman, and with our witnesses and with other members of the Committee as we embark on the reauthorization process, and I would ask that my full statement be printed in the record so I can turn to some questions. Mr. Chairman, I would just ask that my statement be put in the record.

Chairman Specter. Without objection.

[The prepared statement of Senator Feingold appears as a submission for the record.]

Senator Feingold. Mr. Attorney General, I would like to ask you a bit more about a provision that you mentioned, the delayed notification or sneak-and-peek search warrants which were authorized in Section 213 of the PATRIOT Act. That provision, as you know, does not sunset, but has sparked a lot of controversy.

Before I start, I want to express a little frustration that the Committee received a lengthy letter just yesterday afternoon responding to some very longstanding requests for information about the use of the sneak-and-peek provisions. Given that we have only had a few hours to review that letter, I hope that you will agree to respond to any follow-up questions promptly.

Attorney General Gonzales. Of course.

Senator Feingold. I want to clarify a few things regarding sneak-and-peek warrants that I think have gotten a little confused in the debate.

Mr. Attorney General, if the FBI were investigating an international terrorist or spy, it could obtain a secret FISA search warrant and never provide any notice to that person; that is correct, is it not?

Attorney General Gonzales. Generally, yes, sir--no notice under FISA.

Senator Feingold. Section 213 has nothing to do with that authority one way or the other; that is right, is it not?

Attorney General Gonzales. That is correct.

Senator Feingold. So, when we are discussing Section 213, Mr. Chairman, we are talking, for the most part, about searches done to investigate crimes that have nothing to do with terrorism or espionage, right?

Attorney General Gonzales. It can, but it also includes other kinds of crimes. That is correct, 213.

Senator Feingold. There is no inherent connection to terrorism--

Attorney General Gonzales. That is correct.

Senator Feingold. --vis-a-vis the power in Section 213 of sneak-and-peek.

Attorney General Gonzales. That is what Congress intended, I believe, when they drafted 213.

Senator Feingold. I am glad we clarified that because I think many people have a different calculation about what they think should be permissible if we are talking about terrorism investigations. People should be clear Section 213 sneak-and- peek is, in no way, delimited to terrorist situations.

In the letter we received yesterday, the Department said that sneak-and-peek warrants are constitutional, in general, because of a Supreme Court case Dalia v. United States. Let me remind you what that case says. It says that if the Government is planning to install a bug in someone's home, it can get a search warrant and delay notification because that is the ``only means''--only means--``by which the warrant effectively may be executed.''

Now, that is a pretty strict standard, is it not? Much stricter than the standard in the PATRIOT Act, right?

Attorney General Gonzales. I would like to go back and look at that decision carefully before I give you that answer, Senator, but I would be happy to do that.

Senator Feingold. General, I can assure you there are various items listed as justifications under 213, and they are certainly broader than the language ``the only means by which the warrant effectively may be executed.''

I would argue that this is a much stricter standard than in the SAFE Act. Is that the standard that you think should apply to sneak-and-peek searches? And, if not, would you agree that the reliance on the Dalia decision is misplaced?

Attorney General Gonzales. Well, the standard that applies with respect to all of these kinds of warrants would be probable cause. That is the standard that applies here.

Senator Feingold. As I understand it, this is a question of what circumstances allow an exception to the normal notice, and certain items are listed as exceptions. We may have a disagreement about what those exceptions should be, but all of this is certainly broader than the language of the Dalia decision, which speaks only in terms of only means by which the warrant effectively may be executed.

Attorney General Gonzales. Again, Senator, I have not read that case in some time, so I would like to opportunity to review it.

What people need to understand, though, with respect to 213, it requires a determination by a judge, first, that there is probable cause; secondly, that there is a reasonable cause to believe that providing immediate notice would result in some kind of adverse result. So this is not a decision made solely by the Government. This is a decision made by a Federal judge, finding a reasonable cause and an adverse result is going to occur.

Senator Feingold. What we are talking about here, of course, are various provisions that are exceptions to what many of us regard as a constitutional protection. So the law in its current form and the proposals that we are making to change it all identify only certain circumstances where this exception can be made.

My suggestion to you, and I am happy to move on to the next subject so that you can review it, is that the Dalia decision does not even support that standard, let alone the type of standard that we are proposing under the SAFE Act.

Attorney General Gonzales. I would be happy to look at that, Senator.

Senator Feingold. Mr. Chairman, my time has expired.

Chairman Specter. Thank you, Senator Feingold.

Citation:

Federal Data Collection, Secure Flight, The Intelligence Reform And Terrorism Prevention Act, And The Reauthorization Of The Usa Patriot Act. Westlaw. I/S: A Journal of Law and Policy for the Information Society, vol. 2, no. 3 (2006), 485-520.(2005, August). https://gmcga.libguides.com/az.php?a=all&q=westlaw.

Senator Feingold Transcript

The transcript below is an excerpt from the Senate hearing in your required reading (I/S: A Journal of Law and Policy for the Information Society, vol. 2, no. 3 (2006), 485-520.) You will need to concentrate on this section of the reading for your assignment. 

1. Senator Feingold Transcript

First of all, with regard to the point Senator Cornyn was just making and the Attorney General was making, I want to clarify one thing about the recent decision striking down a national security letter authority that is expanded by the PATRIOT Act. The law that the court struck down was very different from the law passed in 1986. While the court focused on the lack of procedures, it was in the context of a law that allowed FBI agents to obtain records and even entire databases under a much different standard than was originally passed.

Mr. Chairman, I would say the Senator from Texas is simply not correct to say that the court struck down only the 1986 law. It struck down a law dramatically expanded by the PATRIOT Act. There is your example on the record of a provision of the USA PATRIOT Act that has been struck down.

Mr. Chairman, thank you very much for holding this hearing. I am pleased that we are beginning our review of the PATRIOT Act early in the year, and I want to thank you very much for your commitment to taking the time necessary to review the executive branch's exercise of Government power since September 11th. I am heartened that this year Congress will have the time and the perspective that we did not have in 2001 to carefully and calmly consider the many expanded Government powers in the PATRIOT Act.

As we all know, the PATRIOT Act was proposed days after the horrific September 11th attacks, and the bill was passed and signed into law just a little more than a month later. I tried, in that emotionally charged time, to convince my colleagues that some provisions went too far and needed to be revised, but my amendments were rejected, although, Mr. Chairman, I want to note that you supported me in some of those efforts, and I will always appreciate that.

Now, today, after three-and-a-half years of the Justice Department adamantly opposing any changes, and in some cases belittling critics, we have here today the Attorney General of the United States coming before us to this Committee to announce that he, too--he, too--recognizes the concerns about the PATRIOT Act are not so farfetched and that changes must be made. So we have come a long way.

Attorney General Gonzales, I wish this day had come sooner, but I am delighted. I need to understand more about the changes to Section 215 that you are proposing, since they were not mentioned in your written testimony submitted yesterday, and it is possible that we will disagree about whether your changes are adequate to address the concerns of the American people, but this is a departure from what we have heard before. It is a good start. Having now taken this step, I hope we can have a productive dialogue that has been missing for so long.

I look forward to working with you, Mr. Chairman, and with our witnesses and with other members of the Committee as we embark on the reauthorization process, and I would ask that my full statement be printed in the record so I can turn to some questions. Mr. Chairman, I would just ask that my statement be put in the record.

Chairman Specter. Without objection.

[The prepared statement of Senator Feingold appears as a submission for the record.]

Senator Feingold. Mr. Attorney General, I would like to ask you a bit more about a provision that you mentioned, the delayed notification or sneak-and-peek search warrants which were authorized in Section 213 of the PATRIOT Act. That provision, as you know, does not sunset, but has sparked a lot of controversy.

Before I start, I want to express a little frustration that the Committee received a lengthy letter just yesterday afternoon responding to some very longstanding requests for information about the use of the sneak-and-peek provisions. Given that we have only had a few hours to review that letter, I hope that you will agree to respond to any follow-up questions promptly.

Attorney General Gonzales. Of course.

Senator Feingold. I want to clarify a few things regarding sneak-and-peek warrants that I think have gotten a little confused in the debate.

Mr. Attorney General, if the FBI were investigating an international terrorist or spy, it could obtain a secret FISA search warrant and never provide any notice to that person; that is correct, is it not?

Attorney General Gonzales. Generally, yes, sir--no notice under FISA.

Senator Feingold. Section 213 has nothing to do with that authority one way or the other; that is right, is it not?

Attorney General Gonzales. That is correct.

Senator Feingold. So, when we are discussing Section 213, Mr. Chairman, we are talking, for the most part, about searches done to investigate crimes that have nothing to do with terrorism or espionage, right?

Attorney General Gonzales. It can, but it also includes other kinds of crimes. That is correct, 213.

Senator Feingold. There is no inherent connection to terrorism--

Attorney General Gonzales. That is correct.

Senator Feingold. --vis-a-vis the power in Section 213 of sneak-and-peek.

Attorney General Gonzales. That is what Congress intended, I believe, when they drafted 213.

Senator Feingold. I am glad we clarified that because I think many people have a different calculation about what they think should be permissible if we are talking about terrorism investigations. People should be clear Section 213 sneak-and- peek is, in no way, delimited to terrorist situations.

In the letter we received yesterday, the Department said that sneak-and-peek warrants are constitutional, in general, because of a Supreme Court case Dalia v. United States. Let me remind you what that case says. It says that if the Government is planning to install a bug in someone's home, it can get a search warrant and delay notification because that is the ``only means''--only means--``by which the warrant effectively may be executed.''

Now, that is a pretty strict standard, is it not? Much stricter than the standard in the PATRIOT Act, right?

Attorney General Gonzales. I would like to go back and look at that decision carefully before I give you that answer, Senator, but I would be happy to do that.

Senator Feingold. General, I can assure you there are various items listed as justifications under 213, and they are certainly broader than the language ``the only means by which the warrant effectively may be executed.''

I would argue that this is a much stricter standard than in the SAFE Act. Is that the standard that you think should apply to sneak-and-peek searches? And, if not, would you agree that the reliance on the Dalia decision is misplaced?

Attorney General Gonzales. Well, the standard that applies with respect to all of these kinds of warrants would be probable cause. That is the standard that applies here.

Senator Feingold. As I understand it, this is a question of what circumstances allow an exception to the normal notice, and certain items are listed as exceptions. We may have a disagreement about what those exceptions should be, but all of this is certainly broader than the language of the Dalia decision, which speaks only in terms of only means by which the warrant effectively may be executed.

Attorney General Gonzales. Again, Senator, I have not read that case in some time, so I would like to opportunity to review it.

What people need to understand, though, with respect to 213, it requires a determination by a judge, first, that there is probable cause; secondly, that there is a reasonable cause to believe that providing immediate notice would result in some kind of adverse result. So this is not a decision made solely by the Government. This is a decision made by a Federal judge, finding a reasonable cause and an adverse result is going to occur.

Senator Feingold. What we are talking about here, of course, are various provisions that are exceptions to what many of us regard as a constitutional protection. So the law in its current form and the proposals that we are making to change it all identify only certain circumstances where this exception can be made.

My suggestion to you, and I am happy to move on to the next subject so that you can review it, is that the Dalia decision does not even support that standard, let alone the type of standard that we are proposing under the SAFE Act.

Attorney General Gonzales. I would be happy to look at that, Senator.

Senator Feingold. Mr. Chairman, my time has expired.

Chairman Specter. Thank you, Senator Feingold.

Citation:

Federal Data Collection, Secure Flight, The Intelligence Reform And Terrorism Prevention Act, And The Reauthorization Of The Usa Patriot Act. Westlaw. I/S: A Journal of Law and Policy for the Information Society, vol. 2, no. 3 (2006), 485-520.(2005, August). https://gmcga.libguides.com/az.php?a=all&q=westlaw.