The Honorable Orrin Hatch

United States Senator
Utah
September 22, 2004

Statement of Chairman Orrin G. Hatch
Before the Senate Judiciary Committee
Hearing on
"A Review of Counter-Terrorism Legislation and Proposals,
including the USA PATRIOT Act and the SAFE Act"

Good morning and welcome to today's hearing. This Committee must be vigilant in overseeing the legal tools Congress gives the federal government to protect the American public from acts of terrorism.

Senator Leahy, the Ranking Democratic Member of the Committee, and I--along with all of the members of the Judiciary Committee--have worked together in a bipartisan fashion to review the adequacy of the legal tools available in the war against terror. During the 108th Congress, the Senate Judiciary Committee has remained active in its oversight and evaluation of terrorism issues. We have held over 25 terrorism-related hearings this Congress.

We have just marked the third anniversary of the September 11th attacks on our country. That somber anniversary and the recently released 9/11 Commission Report remind us all that the stakes in this war on terror are immense, and that the enemy we face is ruthless and evil. We are also reminded that the terrorist threat to our country is as real today as it was in September 2001. Failure to grasp this reality would be a dangerous misunderstanding of our enemies' plans.

Only weeks ago, we all witnessed the horror of parents in Beslan, Russia, who rushed to a school only to learn that their children were being held hostage. Later, watching some of the children--clad only in their underwear--escape death, seeing the covered bodies of the many who could not escape, and viewing the stunning videotape of the terrorists who flaunted explosives before their helpless victims, provided an unfiltered view of the inhumane enemy we face.

While we cannot be ruled by our fears, events like these must never be far from our minds as we carry out our oversight of the war on terror. We must do all we can to make sure that we do not face another September 11th attack or Beslan-like tragedy in this country.

The USA PATRIOT Act has been one of the key legislative tools in our fight against terrorism. As the 9/11 Commission Report noted:

"Many of the act's provisions are relatively noncontroversial, updating America's surveillance laws to reflect technological developments in a digital age. Some executive actions that have been criticized are unrelated to the Patriot Act. The provisions in the act that facilitate the sharing of information among intelligence agencies and between law enforcement and intelligence appear, on balance, to be beneficial. Because of concerns regarding the shifting balance of power to the government, we think that a full and informed debate on the Patriot Act would be healthy."

I hope today's hearing advances this debate in a constructive fashion.

As we examine the PATRIOT Act and the proposals to alter it, I frequently look to see if the tools we seek in the war on terror are already available in the narcotics or organized crime contexts.

For example, the criminal law has long permitted investigators to obtain business records by grand jury subpoena if the records may be relevant to a criminal investigation. The PATRIOT Act adopted a similar relevance standard for investigators who seek records via a FISA court order in terrorism cases. One proposal we will hear about today, the SAFE Act, would require a higher standard in terrorism cases.

To obtain business records, the SAFE Act would require the government to show specific and articulable facts to believe that the person to whom the records pertain is a foreign power or agent of a foreign power, a much higher standard than showing the records may be relevant to an investigation.

I am skeptical about efforts to impose a greater burden on the government in terrorism cases than in less serious criminal cases. It seems to me that we should not make it any harder to go after suspected terrorists than after suspected drug dealers.

Another example we will hear about today is delayed notification search warrants. Delayed notice warrants have been allowed in criminal cases for at least 15 years. The PATRIOT Act codified this authority, permitting delay if the government satisfies an Article III judge that delay is necessary in enumerated instances.

The SAFE Act would forbid delay in some circumstances previously allowed by the courts, including those instances where notice would result in the intimidation of witnesses or would seriously jeopardize an investigation. Again, I am highly skeptical about the need to limit the use of tools that have been available to criminal investigators for years. If delayed notification warrants are good enough for drug dealers, white collar criminals, and organized crime syndicates, I will have to be convinced that they should not apply to terrorism investigations.

As we move forward, many issues must be weighed:

How best to preserve our traditional civil rights while strengthening our ability to disrupt terrorist plots;

Whether we should reconcile our mass transportation laws to ensure that terrorists who may attack a train are treated the same as those who may attack a school bus;

Whether our laws adequately punish those who possess missile systems designed to destroy aircraft; and

Whether we should update a host of other terrorism laws.

In all these areas, we must remain innovative in examining our terrorism laws and stay a step ahead of the terrorists.

Let me be clear, I do not question the motives of anyone who wants to alter the PATRIOT Act. However, I disagree with the facts cited to support many of the changes that have been advocated to date. I am especially skeptical about changes that would leave our counter-terrorism investigators less well equipped than their criminal counterparts.

I look forward to hearing from our witnesses on how we continue to move forward to achieve our shared goal of making America safer while retaining our cherished civil liberties.