The Honorable Patrick Leahy

United States Senator
Vermont
September 22, 2004

Statement of Senator Patrick Leahy
Hearing of the Senate Judiciary Committee on
"A Review of Counter-Terrorism Legislation and Proposals,
Including the USA PATRIOT Act and the SAFE Act"
Wednesday, September 22, 2003

Let me open by relating my respect and admiration for Senator Durbin and Senator Craig. The Senators from Illinois and Idaho have shown great resolve and tenacity since the introduction of S.1709, the Safety and Freedom Ensured Act (SAFE Act). They have been vocal proponents for thoughtful change to the PATRIOT Act and have identified sections of that law that deserve vigorous debate, particularly with regard to Section 215 of the PATRIOT Act and National Security Letters. I commend them and look forward to hearing from them as witnesses today.

I believe that the Attorney General should be appearing before us today, not least because of his oversight obligation to his former colleagues here. Instead we see him appearing at press conferences and announcements of superceding indictments and read about his travel to Bellagio and Lake Como near that beautiful portion of northern Italy from which my Italian grandparents emigrated. He seems to have time for almost everything else but for appearing before this oversight Committee of the Congress and answering our questions. As the members of the Committee know, the Attorney General's chronic scarcity before this Committee also touches on the concerns about oversight issues raised by the 9-11 Commission.

That said, I do welcome Deputy Attorney General Comey and look forward to hearing his views of the SAFE Act. I am also interested to hear his response to rising public concern over the fact that the Bush Administration continually calls for more Government power while leaving many available authorities under-utilized. And there is the matter of establishing a real civil liberties protection board to serve as a watchdog on the agencies of the Executive Branch.

Today's hearing is an important one. The Durbin-Craig SAFE Act is a substantive bill that merits our attention. But this hearing is also significant because this is the first full Committee hearing on these matters since the release of the 9-11 Commission Report.

The 9-11 Commission wrote that the burden of proof for retaining a particular governmental power should be on the Executive. It stated that the Executive must explain how the power granted in the PATRIOT ACT "actually materially enhances security," whether there is "adequate supervision of the Executive's use of those powers to ensure protection of civil liberties," and "that there are adequate guidelines and oversight to properly confine its use." I hope the Justice Department is prepared to respond to questions on this topic.

The hard truth is that, even as we marked the third anniversary of the September 11 attacks twelve days ago, we have yet to see basic accountability for those tragic events. Vice President Cheney recently spoke of the likelihood that terrorist attacks would occur if a Democrat were elected President. He told supporters that terrorists will strike again "if we make the wrong choice" on Election Day. I find this remark not only irresponsible and outrageous -- not only another example of fear-mongering by this Administration -- but incredibly ironic, given that it was made by the top administration official who was in the White House on September 11, 2001. It was made by one of the top officials of an Administration that has yet to accept any responsibility for what occurred on September 11 or for the failures in the three years that have followed to capture Osama bin Laden. Instead, this Administration has squandered the unity of the American people and our international allies by deviating from the fight against terrorism by choosing instead to topple the regime of Saddam Hussein. The reckless partisan remarks by the Vice President apparently signaled a new wave of anti-patriotic personal attacks. In just the last few days the Republican Speaker of the House and the Republican candidate for the Senate in South Dakota have followed Mr. Cheney's lead.

The facts are that the Bush Administration had resisted this Committee's efforts to examine what led to the tragedy, resisted creation of a Department of Homeland Security, resisted formation of the 9-11 Commission, resisted the efforts of the 9-11 Commission while it was carrying out its task, and continues to resist important recommendations of the 9-11 Commission. Regarding the topic of today's hearing, the Administration has done little but resist oversight of the PATRIOT Act's implementation despite bipartisan concerns. This is squarely at odds with type of oversight the 9-11 Commission implored us to conduct. Chairman Kean said in a recent House hearing, "There is probably no substitute for the oversight of the [congressional] committees." In the same breath, he argued for vigorous oversight "to make sure that the public can be assured" that the PATRIOT Act is being used properly.

A Republican-led Congress is not helping fulfill our oversight responsibilities. Representative Conyers and I have been trying for the past two months without success to get our Republican Committee counterparts to sign a letter - a simple letter - asking for updated information from the Department on implementation issues of the PATRIOT Act including the use of National Security Letters and delayed notice warrants.

Recognizing that some of the most controversial provisions of the PATRIOT Act will "sunset" at the end of 2005, the 9-11 Commission recommended a healthy debate over any extension of those provisions next year. I drafted the sunset provision with Congressman Dick Armey. I also introduced another sunset bill to ensure that Congress actively engages in effective oversight and reconsiders all of the more controversial provisions of the PATRIOT Act.

For months now, the President and some Republican members have called for engrafting new provisions onto the PATRIOT Act that themselves will require thoughtful consideration. The American people will rightly ask us why we would consider expanding subpoena power on the one hand, while the Executive rarely uses alternative information-gathering tools that are currently available to them.

When the Attorney General used to appear before this Committee he would seek to preempt this Committee from fulfilling its oversight responsibilities by suggesting that anyone who asked questions was giving aid and comfort to the enemy. That posture has been taken to new depths recently by Mr. Cheney and others. In fact, for Senators not to serve as a check on the overreaching of the Executive Branch would be to sacrifice protection of our basic freedoms and a shirking of our responsibility.

The Attorney General also liked as a rhetorical device to say that no one had challenged the Government's use of authority and no court had found the Government had overreached. Perhaps he chose not to be with us today because the list of reversals of the Government's policies and practices has become so extensive over the last couple of months and years. From the Department's involvement in rewriting our country's adherence to the Geneva Convention and the Convention Against Torture, which contributed to the breakdown at the Abu Ghraib prison and elsewhere, to the Supreme Court's rejection of the Administration's Guantanamo practices, there is much that needs attention and correction.

Indeed, the Justice Department has accumulated one loss after another in terrorism cases. In recent weeks, we have witnessed the unraveling of the Department's first post-September 11 prosecution of a terrorist sleeper cell in Detroit. This followed on the heels of a growing list of losses and questionable cases, including the wrongful arrest of a Portland attorney based on a fingerprint mismatch; the acquittal of a Saudi college student who was charged with providing material support to terrorists; the release on bail of two defendants in Albany, N.Y., after the government admitted having mistranslated a key piece of evidence - the evidence referred to one defendant as "brother," not "commander," as originally represented; and the Supreme Court's repudiation of the Administration's claim that it can hold citizens indefinitely as "unlawful combatants," without access to counsel or family.

The fact is, there have been only a few real victories in cases that have brought terrorism charges since September 11, and these have been overshadowed by seemingly half-hearted prosecutions. Justice Department officials say their record since the 2001 attacks reflects a successful strategy of catching suspected terrorists before they can launch deadly plots, even if that involves charging them with lesser crimes.

I certainly will not contest that lesser crimes are being charged. According to the Transactional Records Access Clearinghouse (TRAC), of the approximately 184 cases disclosed as "international terrorism" matters, 171 received a sentence of one year or less. But is that making us safer? What exactly happens to a suspected terrorist who spends six months in prison and then is deported to his country of origin in the midst of a war that has no end in sight? Does it really squelch deadly plots?

The Administration has yet to answer pointed questions about the deportation of Nabil al-Marabh to Syria, a nation that is a state sponsor of terrorism. Al-Marabh was at one time Number 27 on the FBI's list of Most Wanted Terrorists, and experienced prosecutors wanted to indict him. Why was he released? According to court records, Al-Marabh shared an address with defendants in the Detroit case who are now facing only document fraud charges. What is going on here?

We all await the Government's disposition on the Hamdi case. Will the Justice Department release and send to Saudi Arabia someone they said was so dangerous that he had to be held for years in a military stockade and could not be allowed to consult with a lawyer?

If the Attorney General had been willing to join us, I might have had a chance to ask him about his frightening announcement from Moscow of the arrest of Jose Padilla -- as if the Government had miraculously averted a nuclear device from being detonated in our heartland. As Mr. Comey represented to the federal courts a few months ago, the Government no longer even contends that Mr. Padilla was engaged in a "dirty bomb" plot and we have yet to see criminal charges against him, and I hope that we will. The Attorney General always finds time to announce allegations and dangers to frighten the American people but never seems to have time to be accountable when those specters prove false, when criminal cases can not be made, or when the Government has overreached or when innocent Americans have been unfairly accused.

Before Congress considers granting the Government more powers to add to the federal arsenal, we must determine the status of things under the PATRIOT Act. Which tools are actually being used, and how are they working? Which tools are subject to abuse, and which need to be modified? I hope that we can start getting some of those answers today so that we will be in position to act in a timely fashion next year.