THE PROGRESSIVE CONSERVATIVE, USA
An Online Journal of Political Commentary & Analysis
Volume V, Issue # 293, December 5, 2003
Dr. Almon Leroy Way, Jr., Editor
Government Committed to & Acting in Accord with Conservative Principles
Ensures a Nation's Strength, Progress, & Prosperity
ENFORCEMENT OF THE USA PATRIOT ACT:
PROTECTING OUR HOMELAND SECURITY FROM TERRORIST ATTACKS
Christopher Wray
INTRODUCTION
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:
Since the attacks of September 11, 2001, 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-Qa'ida
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-Qa'ida cell behind the September 11th attacks.
Through interagency and international cooperation, over half of Al-Qa'ida'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.
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.
Information Sharing:
Two of the Patriot Act's most important provisions helped to knock down barriers that had limited law enforcement officials
from sharing information with the intelligence and military communities. Before passage of the Patriot Act, many statutory
provisions had been interpreted to require these groups to form two separate huddles that could not readily talk to each
other, and the consequence was a weaker collective defense against terrorism, a collective defense weaker than it should
have been. As the recent 9/11 Congressional Joint Inquiry Report confirms, before September 11th, our capacity to "connect
the dots" was hampered bythe difficulty of coordinating throughout our own government. Now, criminal investigative
information that contains foreign intelligence or counterintelligence, including grand jury and wiretap information, may be
shared with national security and intelligence officials. For example, during the investigation and prosecution of several
significant terrorism cases (including the 1993 attack on the World Trade Center, the 1998 embassy bombings in Africa, the
millennium bombing plot, and the 2000 attack on the USS. Cole), the U.S. Attorney's Office in the Southern District of New
York accumulated extensive intelligence and grand jury information that can aid, and has aided, many ongoing terrorist cases.
Since the passage of the Patriot Act, that U.S. Attorney's Office has shared this wealth of terrorist information with intelligence
and law enforcement agencies, helping them further their own investigations.
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.
Technology:
The Patriot Act also brought the law up to date with current technology, so we no longer have to fight a digital-age battle
with antique weapons. Terrorists, like drug dealers and other organized criminals, have employed modern technology to
conduct and conceal their activities. They are now trained to thwart surveillance by rapidly changing cell phones. The Patriot
Act simply leveled the playing field by allowing terrorism investigators to adapt to these methods. Section 216 clarified that
the authority to use pen registers and trap-and-trace devices "long used for performing surveillance on phones" may be
sought from a court for Internet communications. "Roving" wiretaps, when approved by a court, allow investigators to
conduct electronic surveillance on a particular suspect, rather than a particular telephone. This technique has been used for
over a decade to investigate ordinary crimes, including drug offenses and racketeering, and. thanks to the Patriot Act, terrorism
investigators now have the same valuable tool.
Stronger Legal Tools:
The Patriot Act has also given prosecutors and investigators stronger legal tools with which to deter and disrupt terrorist activity.
For example, the Act increased the maximum sentences for a number of terrorism-related offenses, ensuring that convicted
terrorists and supporters of terrorism are punished appropriately and kept incapacitated for a substantial period of time, and
that others are deterred from committing or supporting terrorist acts. Strong penalties also now lead to more information and
cooperation from those with links to terrorist operations. Since September 11th, we have obtained criminal plea agreements
from a considerable number of individuals who must, and will continue to, cooperate with the government in its terrorist
investigations.
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.
DISPELLING MYTHS
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 Library Issue:
As you know, several groups, including the American Civil Liberties Union (ACLU), have claimed that Section 215 of the
Patriot Act allows the government to investigate the library habits of ordinary citizens. This misinformation has apparently led
a number of librarians to warn patrons needlessly of possible government monitoring. This overreaction has only led to further
public confusion and misunderstanding about the scope of the Patriot Act.
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.
Foreign Intelligence Information:
Critics have also attacked Section 218 of the Act, which allows the use of surveillance under FISA whenever a significant
purpose of the investigation is foreign intelligence collection. Critics have suggested that, pursuant to Section 218, the FBI
may now conduct a secret search or secretly record telephone conversations without a showing of probable cause. This
characterization of the Act is misleading.
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.
CLOSING
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.
LINKS TO RELATED TOPICS:
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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