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RUSH TRANSCRIPT
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AMY GOODMAN: Perhaps the most heated exchange during yesterday's hearing came during Durbin’s questioning of Gonzales. Here is an excerpt.
SEN. RICHARD DURBIN: I think we should start this conversation about the PATRIOT Act, this dialogue, by acknowledging the obvious. Let's be honest. We passed the PATRIOT Act at a moment when our nation was gripped with high emotion and fear. History tells us that we don't do our best work under those circumstances. I think we know that we don't enact laws with adequate and careful consideration under those circumstances, and sadly, history tells us, we often err on the side of expanding the power of government at the expense of individual rights and liberties. That's why if there was any wisdom in this PATRIOT Act, which I voted for, it was the sunset provision which said we will revisit these things, we'll determine whether or not we are caught up in the emotion of the moment and have gone too far. I think it was in that spirit that Senator Craig and I took a look at the PATRIOT Act and suggested the Safe Act, which does not repeal or abolish the PATRIOT Act but adds what we consider to be thoughtful provisions which are going to make it more specific in what it sets out to do and more protective of the rights of individuals.
Now, if you search the political spectrum in the Senate, you will probably find there are no two Senators further apart than Senator Craig and myself. You will find the group supporting our Safe Act as diverse, as well, from the American Conservative Union to the American Civil Liberties Union. So, I am heartened by your opening statement, Attorney General, about being open to suggestions and ideas. It is a grand departure from your predecessor, and I think it is the right spirit for us to address the PATRIOT Act. I would commend you to, as I’m sure Senator Craig would, the provisions which we are offering.
There are two things which I would like to speak to specifically about the PATRIOT Act and what's been said this morning. The very first reason, Attorney General, that you gave for the PATRIOT Act was to enhance the federal government's ability to share intelligence. That is an absolute necessity for our defense of America in the war on terror.
But most honest observers will tell you that to suggest that the only way we can expand the sharing of information and intelligence is to expand the power of government, or to at least move perhaps too far when it comes to individual rights and liberties overstates the obvious. We now know, well documented by investigation after investigation, that there was a bureaucratic turf war in many agencies which stopped them from sharing information. Director Mueller has devoted more hours than he can count to improve the outmoded technology he inherited after 9/11 so that information systems could communicate.
The point I would like to make is this: If the goal here was, as you say, to enhance federal government sharing intelligence, we could have stayed away from the PATRIOT Act altogether and really focused on the agencies working with one another and sharing information so that the Phoenix memo wouldn't be buried in the depths of the FBI, and so that the CIA and all of the other agencies would communicate. So, before we go to challenge in any respect the Bill of Rights, I think we had a lot of homework to do when it came to the management of information at the federal government. Maybe this new intelligence reform will move us in a more positive direction.
The second thing I’d like you to address, if you would consider, is the Section 215. Section 215, which has caused great pain for people in many communities, such as the American Library Association, not historically a politically active group, has become very active, because they believe the PATRIOT Act went too far. They believe, for example, if an FBI field office believed that an unidentified terrorist checked out a book entitled, "How to Build a Dirty Bomb," from the Chicago Public Library, that Section 215 gives the government the authority to search the library records of hundreds of ordinary citizens in an attempt to identify the terrorist, catching in this net and sweeping in innocent people who have checked out books in the library never knowing that they were to be swept up in the potential of finding a terrorist. Similarly, if an FBI field office came up with information that the wife of a suspected terrorist had an abortion, and therefore, they would go out, they would set out through Section 215 to search the records of a hospital or clinic for all the women who had received an abortion whether or not they might have been associated with any terrorist activities. Section 215 allows all of that information to be gathered in secret through the FISA court and many innocent people to have their privacy compromised in the process.
Now, often, it's said that we should stop and consider it's just like a Grand Jury subpoena. But it's not. There are significant differences.
The recipient of a Grand Jury subpoena can challenge the subpoena.
That's not the case here. The government must make a showing with a Grand Jury subpoena of the need before a Gag Order is imposed. That's not the case here. The section 215 provision of the PATRIOT Act is in secret. And the recipient of the subpoena can challenge the gag order, which cannot be done under Section 215. So, the analogy breaks down completely. When you try to argue that this is just a routine process like a Grand Jury subpoena. So, I wish you would address Section 215 in that context. If in fact the records of a library should be protected and are somehow sacred, can the same not be said for medical records and other business records that might be swept up in the same Section
215 effort?
ALBERTO GONZALES: Thank you, Senator, you have raised, I think, some good points, and obviously, Section 215, in my judgment, has been subject to a great deal of misunderstanding. Let me repeat what I said earlier. This department and the government has no interest in the library reading habits of ordinary Americans. We do believe, however, that libraries should not become safe havens for people who are here in this country and do want to do harm to other Americans, and we do have evidence of that happening, even though Section 215 has not been used in connection with library records.
We do know that there are -- there have been examples of terrorists who are using access to computers at libraries. As I said in my statement, we do believe that there is an inherent right, but would support a change in the law to allow specific challenges to a Section
215 order and would support changes in law that would allow someone to talk to an attorney in connection with preparation of that order. My own sense is that there are sufficient safeguards that many people choose to ignore. That is, let me just mention a few. This is not just the government making this decision. We have to go to a federal judge.
SEN. RICHARD DURBIN: But Section 215 requires the judge to issue the order. It is required. I can read it you to, but I know you are familiar with it.
ALBERTO GONZALES: Well –
SEN. RICHARD DURBIN: The language says specifically, upon application made pursuant to this section, the judge shall enter an ex parte order.
There's no discretion.
ALBERTO GONZALES: Once the U.S. government makes -- presents information meeting the relevant provisions of the statute, you're right, the law does provide that the judge shall issue the order. But I quarrel with those who have characterized this as a rubber stamp operation. We provide information to the judge. Judges often ask questions. Judges often ask us to go back and get information. We provide that information, and then the judge makes the decision.
SEN. RICHARD DURBIN: The information is not individualized. That's my concern and Senator Craig’s concern. You are not talking about a person suspected of. You are talking about a potential group of people that includes many innocent people. It's as if you said, we have the authority to arrest and search large groups of people in the hope to find one criminal. Under our system, there's more particularity required, is there not? And Section 215 does not include that.
ALBERTO GONZALES: There is, in our judgment, a relevant standard that should be applied in connection with 215, relevance to terrorist activity or an intelligence investigation.
SEN. RICHARD DURBIN: But is it individualized?
ALBERTO GONZALES: That is not explicit.
SEN. RICHARD DURBIN: Is it individualized?
ALBERTO GONZALES: It is certainly applied as narrowly as we can. And people have the opportunity, Senator, after the fact, if the information is going to be used in any way, in any kind of proceeding, they have the opportunity to go to another judge and contest the collection of that information. Finally, I might remind you that we do have an obligation upon the department to provide semiannual reports about the exercise of this authority. So, it's not true that the department is using this authority in secret.
SEN. RICHARD DURBIN: Do you provide that information to the Judiciary Committee?
ALBERTO GONZALES: I don't know –
SEN. RICHARD DURBIN: The answer is “no.” You give it to the Intelligence Committee. Well, you don't provide the information to the Judiciary Committee.
AMY GOODMAN: An excerpt of a hearing with Attorney General Alberto Gonzales. He is being questioned by Illinois Senator Dick Durbin.
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