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The Honorable Christopher Wray
October 21, 2003
OCTOBER 21, 2003
We have enjoyed key successes: Since the attacks of September 11th, we have charged 284 defendants as a result of terrorism investigations; to date, 152 have been convicted or have pled guilty. The United States government has broken up terrorist cells in Buffalo, Charlotte, Detroit, Seattle, and Portland; five defendants in Portland recently pled guilty to conspiring to travel to Afghanistan to fight for the Taliban and Al Qaeda after September 11th. The communication and cooperation between government agencies has been exceptional and continues to improve. Our friends and allies overseas have been working closely with us to investigate and prosecute a number of major cases; for example, our cooperation with German prosecutors assisted in the conviction of Mounir el Motassadeq in Germany for helping the Hamburg-based Al Qaeda cell behind the September 11th attacks. Through interagency and international cooperation, over half of Al Qaeda's leadership worldwide has been captured or killed. We are dismantling the terrorist financial network: $133 million in assets have been frozen in 660 accounts around the world, and investigations of terrorist financing have led to 27 convictions or guilty pleas to date. Our manpower has increased dramatically: Over 1,000 new and redirected FBI agents have been dedicated to counterterrorism and counterintelligence, and positions for 250 new Assistant U.S. Attorneys have been authorized. And, thankfully, we have so far not seen another major attack on American soil since September 11, 2001, though we are all aware that our enemies continue to plot such attacks and will not willingly give up trying to strike us at home.
The Patriot Act has been vital to our success, and this Committee should be proud of its role in passing this critical legislation. Of particular importance, the Act has improved communication and information sharing among the agencies tasked with fighting terrorism, allowed law enforcement to adapt to terrorists' technologically sophisticated methods, and given investigators and prosecutors stronger tools to identify, pursue, disrupt, prosecute, and punish terrorists. The capabilities afforded to us by the Patriot Act have been and will continue to be critical in bringing terrorists to justice and in ensuring the safety of our country against terrorist attacks.
Similarly, information obtained under the Foreign Intelligence Surveillance Act (FISA) is now shared far more readily between criminal and intelligence officials. This ability to review the complete scope of information applies retrospectively as well as to developing investigations. Thus, the Attorney General has instructed all U.S. Attorneys to review intelligence materials for previously collected information that could support a criminal prosecution; as a result, thousands of intelligence documents have been reexamined, and many criminal investigations have been initiated or strengthened.
Such enhanced information sharing has proved effective: For example, it led directly to the indictment of Sami Al-Arian and other alleged members of the Palestinian Islamic Jihad (PIJ) in Tampa, Florida. PIJ is believed responsible for over 100 murders, including those of two young Americans in Israel: 20-year old Alisa Flatow, who was killed in a bus bombing, and 16-year old Shoshana Ben-Yishai, who was shot on the way home from school. Information sharing, along with close cooperation with Russian law enforcement, also contributed to the capture and indictment in New Jersey of Hemant Lekhani, the arms dealer charged with attempting to sell shoulder-fired anti-aircraft missiles to terrorists for use against American targets. Information from previous intelligence investigations assisted in the criminal investigation of Ilyas Ali and his cohorts in San Diego, California, who have been charged with conspiring to exchange tons of hashish for anti-aircraft missiles, for sale to Al-Qaeda. This ability to share vital intelligence and law enforcement information has disrupted terrorist operations in their early stages, has led to more arrests and prosecutions for terrorism offenses, and ultimately saves American lives.
The prosecution of Abdel-Ilah Elmardoudi and Karim Koubriti illustrates the Patriot Act's success in achieving these goals. After a lengthy trial, a jury convicted both of conspiring to provide material support to terrorists. Koubriti and Elmardoudi face up to ten and fifteen years in prison, respectively, for this offense; Elmardoudi faces a stiffer penalty because some of his criminal conduct, unlike Koubriti's, was committed after the Patriot Act was enacted.
Another important tool has been the court-approved delayed notice search warrant. This warrant allows investigators, with court approval, to delay notifying the target of a search for a limited time while the warrant is executed. Authority to delay notice can be used only upon the issuance of a court order in narrow circumstances, such as when delay is necessary to protect witnesses and cooperators, to avoid the disclosure of undercover operations, or to prevent the removal or destruction of evidence. This is a valuable tool, the use of which has long been upheld by courts nationwide in investigations of organized crime, drug offenses, and child pornography. The Patriot Act simply codified the case law in this area to provide certainty and nationwide consistency in terrorism and other criminal investigations. For example, in a recent narco-terrorism case, a court issued a delayed notice warrant to search an envelope that had been mailed to the target of an investigation. The warrant allowed officials to continue the investigation without compromising an ongoing wiretap. The search confirmed that the target was funneling money to an affiliate of the Islamic Jihad terrorist organization in the Middle East. The target of the warrant was then charged and notified of the warrant. Similar warrants were also used in the investigation of a charity suspected of illegally channeling money abroad. Authority to delay notice can be used only upon the issuance of a court order in narrow circumstances, such as when delay is necessary to protect cooperators and witnesses, to avoid the disclosure of undercover operations, or to prevent the removal or destruction of evidence.
Several provisions of the Patriot Act that streamline procedures for terrorism investigations also have had profound effects. Before the Patriot Act, a court could only issue certain warrants--for example, those authorizing searches or the use of pen registers and trap-and-trace devices--that were enforceable within its own district. This created unnecessary delays and burdens when investigating terrorist networks, which often span a number of judicial districts; time-sensitive investigations were delayed by the need to obtain additional warrants in every district where terrorist activity was being investigated. The Patriot Act authorized courts to issue search warrants and pen register orders that are enforceable nationwide in terrorism investigations. For example, this aided authorities investigating Sami Omar Al-Hussayen, a Ph.D. candidate in computer science in Idaho who, according to the indictment, had set up a website promoting violent jihad for an organization in another state. The judge where the case was being brought, who was most familiar with the case, approved the search warrant; this allowed agents to execute simultaneous searches in different districts, thus preserving potential evidence. Such coordination is extremely important in cases where one suspect may be able to warn others of an impending search.
By fostering better information sharing, responding to advances in technology, and providing stronger tools for the investigation and prosecution of terrorists, the Patriot Act has been indispensable to our efforts to deter and disrupt terrorist activity. Anything that weakens the Patriot Act will seriously undermine our ability to prevent future acts of terrorism. One troubling proposal to do so is the Otter Amendment, recently passed by the House, which seeks to impair our use of delayed notice warrants. Under that amendment, terrorists may learn of our investigations before we can learn enough to identify and disrupt their plots. Premature notification of a search warrant can result in the intimidation of witnesses, physical injury -- even death -- destruction of evidence, and flight from prosecution. It would put us in a worse and less safe position than before the Patriot Act was enacted. I strongly oppose this and any other measure that will hamstring our front-line agents and prosecutors in the war on terrorism.
The Library Issue
The suggestion that federal agents are snooping on innocent citizens' reading habits is inflammatory and simply untrue. First, the Patriot Act explicitly protects Americans' First Amendment rights by providing that an investigation may not be conducted "of a United States person solely upon the basis of activities protected by the first amendment to the Constitution of the United States." Second, terrorism investigators have no interest in the reading habits of ordinary Americans. As the Attorney General pointed out recently, as of September 18, 2003, this provision had never been used. The House Judiciary Committee also concluded in its October 17, 2002, press release that its "review of classified information related to FISA orders for tangible records, such as library records, has not given rise to any concern that the [government's] authority is being misused or abused."
But historically, terrorists and spies have used libraries to plan and carry out activities that threaten our national security. For example, Brian Patrick Regan, who was convicted last February of offering to sell U.S. intelligence information to Iraq and China, used a computer at a local public library to look up addresses for Iraqi and Libyan embassies overseas. Similarly, in a recent domestic terrorism criminal case, a grand jury served a subpoena on a bookseller to obtain records showing that a suspect had bought a book giving instructions on how to build a particularly unusual detonator that had been used in several bombings. This was important evidence identifying the suspect as the bomber. We should not allow libraries or any other businesses to become safe havens for terrorist planning, financing, or communication. The Patriot Act ensures that business records can be obtained in a national security investigation with the approval of a federal judge. Under the Patriot Act, the government can now ask a federal court to order production of the same type of records available through grand jury subpoenas, but only after the government shows that the records are sought for an authorized foreign intelligence investigation or to protect against international terrorism or clandestine intelligence activities. Moreover, Congress also exercises careful and ongoing oversight: Every six months, the Attorney General must "fully inform" Congress of how Section 215 has been used.
Foreign Intelligence Information
Section 218 was passed to ensure an integrated investigation of terrorist activity by intelligence and law enforcement agents. As I described earlier, before the Patriot Act, a perceived "wall" inhibited information sharing and coordination between the two groups. Intelligence investigators were afraid that consultation with law enforcement investigators would mean that they would be unable to obtain or continue intelligence-related surveillance. Section 218 recognizes the need for, and legality of, full coordination between the two groups by permitting the use of FISA whenever foreign intelligence is a "significant purpose" of a national security investigation. And Section 504 of the Patriot Act specifically permits intelligence investigators to consult with federal law enforcement officers to coordinate efforts to investigate or to protect against threats from foreign powers and their agents.
As with other Patriot Act provisions, safeguards exist to ensure that Section 218 is not abused, most notably the fact that a surveillance or search under FISA can be ordered only if the government demonstrates, to the satisfaction of a federal court, that there is probable cause to believe that the target is a foreign power or an agent of a foreign power. Last November, the Foreign Intelligence Surveillance Court of Review upheld the constitutionality of Section 218 and the Department's procedures implementing it. The court held that "FISA as amended is constitutional because the surveillances it authorizes are reasonable."
The various misconceptions that have been perpetuated about the Patriot Act are disturbing and simply wrong. The Department is very aware of its responsibility to protect civil rights while protecting the country from future terrorist attacks, and we want to ensure that the American people understand the safeguards embedded in the Patriot Act. As you know, the Attorney General and the U.S. Attorneys have spoken about these concerns recently in communities across the country, and the Department has set up a Web site to address the issue as well. We encourage the members of the Committee and all Americans to review the site, lifeandliberty.gov, to learn more about how the Patriot Act protects our nation's security while protecting the personal liberties we so dearly cherish.
After you hear from my colleagues, Mr. Fitzgerald and Mr. McNulty, I will be happy to respond to any questions you may have.