ENFORCEMENT OF THE USA PATRIOT ACT:
I am pleased to be here today to discuss with you the efforts of the United States Department of Justice in the investigation and prosecution of terrorists, and in the protection of the American people from future terrorist attacks. I am also pleased to discuss how the anti-terrorism tools provided in the USA Patriot Act, a law that was overwhelmingly passed by the Congress, have been crucial to the Department's efforts, and particularly how they have helped prosecutors and agents on the "front lines" of the war on terrorism.
We in the Justice Department have enjoyed key successes:
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 USA Patriot Act has been vital to our success, and the U.S. Senate Committee on the Judiciary should be proud of its role in passing this critical legislation. Of particular importance, the Patriot Act has improved communication and information sharing among the agencies tasked with fighting terrorism, allowed law enforcement to adapt to the terrorists' technologically sophisticated methods, and given criminal 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 U.S. 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, and they have been charged with conspiring to exchange tons of hashish for anti-aircraft missiles, for sale to Al-Qa'ida. 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 U.S. House of Representatives, 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 and 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 Patriot Act has come under fire recently from a number of groups. Unfortunately, their criticisms have in many instances misled the public as to what the Patriot Act enables the government to do. The resulting and persisting myths notwithstanding, the American people should know that almost all of the actions the U.S. Justice Department takes under the Patriot Act are reviewed by independent federal judges. Moreover, to date, no provision of the Act has been held unconstitutional by any court. I believe that the Patriot Act has helped preserve and protect liberty and freedom, not erode them. By a nearly unanimous vote in the U.S. Senate, Senators agreed that these new enhancements are critical to the war on terrorism, and that they respect civil liberties.
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."
Historically, however, 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.
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. In November of 2002, the Foreign Intelligence Surveillance Court of Review upheld the constitutionality of Section 218 and the Justice 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 Justice 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 U.S. Attorney General and the U.S. Attorneys have spoken about these concerns recently in communities across the country, and the Justice Department has set up a Web site to address the issue as well. We encourage the members of the Senate Judiciary Committee and all Americans to review the site, www.lifeandliberty.gov, to learn more about how the Patriot Act protects our nation's security, while protecting the personal liberties we so dearly cherish.
I thank you for inviting me here and giving me the opportunity to discuss how the USA Patriot Act is being used every day in the field to fight terrorism. I would also like to thank the Senate Judiciary Committee for its continued leadership and support. With your support, we will continue to make great strides in our battle to defeat those who would do this country harm.
The USA Patriotic Act
Terrorism & Homeland Security
The Threat of Radical Islam
More on the Threat of Radical Islam
War & Peace in the Real World
Islamist Terrorist Attacks on the U.S.A.
Osama bin Laden & the Islamist Declaration of War
Against the U.S.A. & Western Civilization
Islamist International Terrorism &
U.S. Intelligence Agencies
U.S. National Security Strategy
Christopher Wray is U.S. Assistant Attorney General and Chief of the Criminal Division in the U.S. Department of Justice. Wray
presented the foregoing statement, on October 21, 2003, as testimony before the U.S. Senate Committee on the Judiciary.
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