<DOC>
[108 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:96107.wais]
S. Hrg. 108-624
TOOLS TO FIGHT TERRORISM: SUBPOENA AUTHORITY AND PRETRIAL DETENTION OF
TERRORISTS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON TERRORISM, TECHNOLOGY
AND HOMELAND SECURITY
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
JUNE 22, 2004
__________
Serial No. J-108-83
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas JOHN EDWARDS, North Carolina
Bruce Artim, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
------
Subcommittee on Terrorism, Technology and Homeland Security
JON KYL, Arizona, Chairman
ORRIN G. HATCH, Utah DIANNE FEINSTEIN, California
ARLEN SPECTER, Pennsylvania EDWARD M. KENNEDY, Massachusetts
MIKE DeWINE, Ohio JOSEPH R. BIDEN, Jr., Delaware
JEFF SESSIONS, Alabama HERBERT KOHL, Wisconsin
SAXBY CHAMBLISS, Georgia JOHN EDWARDS, North Carolina
Stephen Higgins, Majority Chief Counsel
David Hantman, Democratic Chief Counsel
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 3
prepared statement........................................... 47
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
prepared statement............................................. 50
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona.......... 1
prepared statement and attachments........................... 51
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 73
WITNESSES
Battle, Michael, U.S. Attorney, Western District of New York,
Buffalo, New York.............................................. 7
Brand, Rachel, Principal Deputy Assistant Attorney General,
Office of Legal Policy, U.S. Department of Justice, Washington,
D.C............................................................ 5
Robinson, James K., Former Assistant Attorney General, Criminal
Division, Department of Justice, Washington, D.C............... 10
SUBMISSIONS FOR THE RECORD
American Civil Liberties Union, Timothy H. Edgar, Legislative
Counsel, prepared statement.................................... 29
Battle, Michael, U.S. Attorney, Western District of New York,
Buffalo, New York, prepared statement.......................... 35
Brand, Rachel, Principal Deputy Assistant Attorney General,
Office of Legal Policy, U.S. Department of Justice, Washington,
D.C., prepared statement....................................... 41
Robinson, James K., Former Assistant Attorney General, Criminal
Division, Department of Justice, Washington, D.C., prepared
statement...................................................... 76
TOOLS TO FIGHT TERRORISM: SUBPOENA AUTHORITY AND PRETRIAL DETENTION OF
TERRORISTS
----------
TUESDAY, JUNE 22, 2004
United States Senate,
Subcommittee on Terrorism, Technology and Homeland
Security, of the Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:42 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Jon Kyl,
Chairman of the Subcommittee, presiding.
Present: Senators Kyl and Feingold.
Chairman Kyl. The Subcommittee on Terrorism, Technology and
Homeland Security will come to order. I am going to filibuster
for just a moment to give Senator Feingold an opportunity to
arrive. It will give me a chance to apologize to everyone for
our late start.
Something very amazing happened today. The Senate official
photograph was to be taken at 2:15, and for some reason that I
can't fathom not everybody showed up at exactly 2:15 for that
photograph. Senators were actually late to have their picture
taken. Now, I must note that most of them were on the other
side of the aisle, and maybe Senator Feingold can explain why
Senators would actually be late for an opportunity for their
photograph to be taken.
But in any event, on behalf of both of us, I apologize for
keeping you all waiting and we will be able to begin the
hearing now.
If you would like any rebuttal to that, Senator Feingold,
you are welcome. Otherwise, I will make my opening remarks.
Senator Feingold. I am non-plused by the partisan attack.
[Laughter.]
OPENING STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE
STATE OF ARIZONA
Chairman Kyl. Well, I appreciate our witnesses being here
today and we do have a very important subject for discussion. I
am going to describe our panel to those of you who are here
because it is an exceptionally qualified panel of experts to
talk about the problems that we are going to be talking about.
We are going to be focusing today on the general question
of what additional tools the Department of Justice might need
in order to best prosecute this war on terror in which we are
all involved and which we all want to help. In particular,
today's hearing will focus on legislation that would extend
direct subpoena authority to the FBI for anti-terrorism
investigations and a bill that would add terrorism offenses to
the list of crimes that are subject to a statutory presumption
of no bail.
Now, let me introduce these witnesses so you will know what
kind of expertise we have.
Rachel Brand is the Principal Deputy Assistant Attorney
General in the Office of Legal Policy of the United States
Department of Justice. Ms. Brand previously served as an
associate counsel to the President in the White House, and
prior to that as an associate with the law firm of Cooper,
Carven and Rosenthal. She has also served as a law clerk to
U.S. Supreme Court Justice Anthony Kennedy and to Massachusetts
Supreme Court Justice Charles Freed.
Michael Battle is the United States Attorney for the
Western District of New York. Prior to his current post, Mr.
Battle served as Erie County family court judge in Buffalo, New
York. He also previously has served as the assistant attorney
general in charge of the Eighth Judicial Circuit with the New
York Attorney General's office and as an assistant public
defender in the Federal Public Defender's office for the
Western District of New York. Finally, Mr. Battle also served 7
years as Assistant U.S. Attorney for the Western District of
New York.
James K. Robinson currently is a member of the law firm of
Cadwalader, Wickersham and Taft here in Washington, D.C. From
1998 to 2001, Mr. Robinson was the Assistant Attorney General
of the United States Department of Justice's Criminal Division.
Mr. Robinson has also served as a dean and professor of law at
Wayne State University Law School, as the United States
Attorney for the Eastern District of Michigan, and as Chairman
of the Michigan Supreme Court Committee on Rules of Evidence.
He is a coauthor of the recently published Courtroom Handbook
on Michigan Evidence.
I want to thank all of you for being here today, and again
we really appreciate having your expertise on these issues.
Let me just make a brief comment in opening and then put
the remainder of my statement in the record. I will note at
this point that, without objection, any member statements will
be included in the record if they would like to submit them.
We all are aware of the fact that the Justice Department is
in the front of this war on terror here in the United States.
It deserves a lot of praise for work that has been done since
September 11. Worldwide, more than half of al Qaeda's senior
leadership has been captured or killed. More than 3,000 al
Qaeda operatives have been incapacitated.
Within the United States, four different terrorist cells
have been broken up--cells in Buffalo, Detroit, Seattle and
Portland. 284 individuals have been criminally charged to date,
and 149 have been convicted or pleaded guilty, including shoe
bomber Richard Reid, six members of a Buffalo terrorist cell,
two members of a Detroit cell, Ohio truck driver Iymam Faris
and U.S.-born Taliban John Walker Lindh.
But we also know that despite these successes, there are
additional tools that we can provide to our law enforcement and
judicial officers. Just as we send our military men and women
into battle with the very best training and equipment, so too
must we do the same thing for those who are doing the job here
on the home front.
We certainly cannot ignore that the successes that we have
had are only the tip of the iceberg, that we still have a huge
effort in front of us in order to ensure that we don't have
additional attacks here in the United States and that we can
roll up those who are responsible for future attacks. That is
why we have convened this hearing today to investigate some
additional tools that we might be able to provide for our law
enforcement community at large, and specifically for Federal
law enforcement.
Rather than talk about the legislation that I have
introduced at this point or further describe its contents, I am
going to defer to Senator Feingold for his opening remarks. And
then during the questioning, I am sure we will have a lot more
opportunity to get into some of those details. I have authored
a couple of bills which I think would help and would provide
some additional tools, and we will be very interested in
getting the views of those of you who are expert in this matter
as to how well you think they would work, whether they are
needed and how we could implement them. Again, I thank you all
for being here today.
[The prepared statement of Chairman Kyl appears as a
submission for the record.]
Chairman Kyl. Senator Feingold.
STATEMENT OF HON. RUSSELL FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman. First, I want to
thank you for allowing me to join you here today. Senator
Feinstein, who is the Ranking Member of this Subcommittee, was
unable to attend today because of a previous commitment to
attend an Intelligence Committee briefing with Director Tenet.
I have always been impressed with the seriousness of the
work done in the Subcommittee on Terrorism, Technology and
Homeland Security, and today's hearing is no exception. As I
have repeatedly said, protecting the country against terrorism
should be our Nation's top priority. Deciding what powers we
are going to grant to law enforcement in the fight against
terrorism is one of the most critical issues confronting
Congress, and I am glad that we are taking deliberate steps to
consider this very important issue.
I must also express my disappointment, however, at the
narrow focus of this hearing. Many members of the Judiciary
Committee, both Republicans and Democrats, have been publicly
seeking a hearing on how the PATRIOT Act is being used and a
real debate on whether some of the most controversial
provisions of that Act could be improved to better balance the
needs of law enforcement with the civil liberties and privacy
of the American people.
In fact, Senator Feinstein, like many of us in Congress,
has still not received basic answers to her letters written to
the Department of Justice about the PATRIOT Act. She has
written to the Department of Justice two times this year and is
yet to receive a response. And she is not alone. I have
repeatedly asked for information about how some of the most
controversial provisions of the PATRIOT Act like Section 215
have been used, and have not received satisfactory responses.
For us to have a meaningful conversation, it needs to be a
two-way conversation. Rather than convening to explore how the
administration is utilizing the powers already granted to it
under the original PATRIOT Act, we are here today to learn
about administration requests for even more authority.
While I am disappointed that the focus of this hearing is
so narrow, I do hope it will help to inform us about whether we
need to give the Department of Justice even more power, and if
the answer is yes, then what safeguards should be built into
that authority.
Today, we will be hearing about proposals to create a new,
broad subpoena authority that actually bypasses the grand jury
system in terrorism cases, and an expanded presumptive right to
pre-trial detention for people charged with any terrorism-
related crime. The administration is apparently reluctant to
allow these proposals to be linked to the PATRIOT Act, but a
version of these proposals did appear in the draft of the so-
called PATRIOT II leaked last year, entitled the Domestic
Security Enhancement Act.
As our Nation faces terrorist threats, we must respond to
those threats without compromising the civil liberties that are
the bedrock of our country. We must balance the legitimate
needs of law enforcement against the privacy and freedom of all
Americans, the vast majority of whom are, of course, innocent
of any association with terrorists.
An essential tenet of any plan to keep Americans safe must
be a dedication to safeguarding the civil rights and liberties
that define this great Nation. The criminal justice system has
by and large served us well. Over the years, we have used our
criminal justice system to successfully prosecute rapists,
pedophiles, drug dealers, street gangs, murderers, organized
crime and others, while respecting important civil rights.
I hope the witnesses today will be able to tell us why
these new powers are needed in the fight against terrorism. The
burden is on the administration to show Congress and the
American people why current law is inadequate, why Federal law
enforcement needs even more power, and how the power it already
has under the PATRIOT Act and the new powers it now seeks are
consistent with the Constitution and the Bill of Rights.
I share the Chairman's commitment to protecting Americans
from terrorism, but at the same time we cannot ignore the FBI's
history of abusing its authority in launching investigations
against civil rights and anti-war activists. Taking into
account this history of targeting activists that challenge the
Government's policies, the language of the pre-trial detention
bill is particularly disturbing. In fact, the pre-trial
detention bill, Senate 1606, would include traditional forms of
political activism in the definition of terrorism.
Mr. Chairman, we should take a considered and measured
course when creating new powers, choosing to build upon the
well-tested powers already contained in the Criminal Code, if
necessary. For that reason, I am very pleased James K.
Robinson, former Assistant Attorney General for the Department
of Justice's Criminal Division, is with us today to share his
wealth of knowledge and experience on these issues. I wish to
extend a special welcome to Mr. Robinson and express my great
appreciation for his willingness to join us on such short
notice.
With respect to the PATRIOT Act, I believe that Americans
support common-sense proposals to protect privacy and civil
liberties that would not in any way undermine the fight against
terrorism. They have asked the administration and the Congress
to listen. Hearing their concerns and acting on them is the
right and patriotic thing to do.
So as we begin the hearing today on a set of proposed new
tools to fight terrorism, I urge all participants to engage in
an open and honest dialogue with Congress and the American
people about how to combat the very real threat of terrorism,
while respecting the freedoms of all Americans.
I thank you, Mr. Chairman, and I do look forward to hearing
from the witnesses.
[The prepared statement of Senator Feingold appears as a
submission for the record.]
Chairman Kyl. Thank you very much, Senator Feingold, and I
should have announced earlier that we scheduled this hearing at
a time when Senator Feinstein had no alternative but to be at
the Intelligence Committee. I know her staff is here and I
regret that we had to do that, but I do appreciate Senator
Feingold being here.
I certainly agree with much of the sentiment, Senator
Feingold, that you expressed. I am trying to find out the exact
number of hearings that have been held that have examined the
use of the PATRIOT Act, because I think we have had several and
I just want the record to reflect whatever that number is. I
will see if I can get that, but I am perfectly willing to have
more. In any event, we can delve today into some potential new
tools that might be used, and I think we have three people here
who are very well qualified to discuss that.
I think probably the proper order would be first for Rachel
Brand, then Michael Battle, and then James Robinson, the clean-
up hitter who I know will have some different point of view.
But let's do it in that order and start with you, Rachel Brand.
Thank you very much for being here.
STATEMENT OF RACHEL BRAND, PRINCIPAL DEPUTY ASSISTANT ATTORNEY
GENERAL, OFFICE OF LEGAL POLICY, DEPARTMENT OF JUSTICE,
WASHINGTON, D.C.
Ms. Brand. Thank you, Chairman Kyl and Senator Feingold. I
appreciate the opportunity to testify today.
The tools that this proposal would provide counter-
terrorism investigators could provide the critical difference
in certain terrorism investigations. I am going to focus today
on the administrative subpoena proposal. Mike Battle will focus
on the presumptive pre-trial detention of terrorist suspects
proposal.
In terrorism investigations, prevention is the key, and for
the law enforcement officers responsible for staying a step
ahead of terrorists in these investigations time is of the
essence. Even a brief delay in these investigations can be
disastrous. Therefore, investigators need tools that allow them
to obtain information and to act as quickly as necessary.
Administrative subpoenas are one tool that would enable
investigators to avoid costly delays.
An administrative subpoena, as you know, is an order from
an agency official to a third party requesting the recipient to
produce certain documents. These subpoenas are a well-
established investigative tool currently available in
investigations of a wide variety of Federal offenses, including
health care fraud and sexual abuse of children. In fact, my
office has identified approximately 335 existing administrative
subpoena authorities for use in civil and criminal
investigations.
Administrative subpoenas are not, however, currently
available in criminal terrorism investigations. This disparity
in the law is illogical, especially considering the particular
need for quick action in a terrorism investigation and the
potentially catastrophic consequences of a terrorist attack.
The legislation introduced by Chairman Kyl would fix this
anomaly in the law by giving the FBI authority to use
administrative subpoenas in investigations of Federal crimes of
terrorism. Grand jury subpoenas which are issued by Federal
prosecutors are a useful tool in all criminal investigations
and are available to obtain the same types of records that
could be requested with an administrative subpoena.
However, there are circumstances in which the FBI's ability
to directly issue an administrative subpoena would save
precious time in a terrorism investigation. For example, using
an administrative subpoena would eliminate delays caused by the
potential unavailability of an Assistant U.S. Attorney, the
lack of a grand jury sitting at the moment the documents are
needed, or the absence of an empaneled grand jury in the
judicial district where the investigation is taking place.
Some of these circumstances occur only rarely, but in
terrorism investigations, in particular, investigators need the
tools to act as quickly as necessary when these circumstances
do occur. And these same considerations have led Congress to
create other administrative subpoena authorities that already
exist.
The Department has previously provided Congress with
examples of when administrative subpoenas would prove useful,
but I will recap these briefly now.
In the first example, on a Friday afternoon investigators
learn that members of an al Qaeda cell have purchased bomb-
making materials. They want to obtain purchase records that may
reveal what chemicals the terrorists purchased and delivery
records that might reveal the terrorists' location.
Investigators can reach a prosecutor, who issues a grand
jury subpoena. But because the grand jury is not scheduled to
meet again until Monday, the return date of the subpoena must
be Monday, as well, and investigators may not obtain the
information for 3 days, by which time the al Qaeda cell may
have executed its plan. The return date of an administrative
subpoena, by contrast, does not have to be a date the grand
jury is sitting, which will potentially allow investigators to
obtain information more quickly.
In the second scenario, investigators learn that members of
an al Qaeda cell recently stayed at a particular hotel.
Investigators want to obtain information about the credit card
numbers used to pay for the hotel room, but the hotel manager
declines to produce the records without a subpoena for fear of
incurring civil liability.
If investigators were able to issue the administrative
subpoena immediately, the hotel manager could comply
immediately, as well, without fear of incurring liability.
Without this authority, however, investigators would have to
wait to contact an Assistant U.S. Attorney to assure a grand
jury subpoena, which potentially would lose valuable time in a
terrorism investigation where speed is of the essence.
In addition to providing an important new law enforcement
authority, Chairman Kyl's bill contains important protections.
For example, it would not give the Justice Department
unilateral authority to compel the production of documents. If
a recipient refuses to comply with a subpoena, the Justice
Department must go to court to enforce it, and the recipient
would have the ability to ask the court to quash the subpoena,
as with other subpoena authorities.
Because the bill would only apply to terrorism
investigations, in which confidentiality is often critical to
success, it would prohibit a subpoena recipient from disclosing
the subpoena in cases where the Attorney General certifies that
disclosure would endanger national security.
The bill, however, would impose several safeguards on the
use of this non-disclosure provision. For instance, the
requirement would last only until the Attorney General
determines that the requirement is no longer justified by a
danger to the national security. At that time, the recipient of
the subpoena would be notified that the non-disclosure
application had expired.
In addition, the recipient would be explicitly allowed to
discuss the subpoena with his or her attorney, and the
recipient could challenge a non-disclosure obligation in
Federal court and the court could set it aside if it determined
that doing so would not endanger the national security.
The bill also would immunize against civil liability
individuals who comply with an administrative subpoena. These
subpoenas thus protect third parties who are willing to comply
with a subpoena, but fear incurring civil liability if they do
so. In short, this bill would advance law enforcement's
proactive approach to preventing terrorism by giving officers
the tools they need to conduct time-sensitive investigations
without unnecessary delay, all while providing appropriate
safeguards.
Mr. Chairman, thank you again for allowing me to testify
and I will look forward to your questions.
[The prepared statement of Ms. Brand appears as a
submission for the record.]
Chairman Kyl. Thank you for that statement.
Mr. Battle.
STATEMENT OF MICHAEL BATTLE, UNITED STATES ATTORNEY, WESTERN
DISTRICT OF NEW YORK, BUFFALO, NEW YORK
Mr. Battle. Thank you, Chairman Kyl. Good afternoon,
Ranking Member Feingold. I thank each of you for the
opportunity to testify before you today.
As United States Attorney for the Western District of New
York, I have had firsthand experience with terrorism
investigations and prosecutions. As a result of that
experience, I can tell you that the safety of our fellow
citizens would be significantly enhanced if Federal law
enforcement provided for the presumptive pre-trial detention of
terrorists.
Mr. Chairman, the Pre-Trail Detention and Lifetime
Supervision of Terrorists Act of 2003 is an important and much-
needed piece of legislation, and the Department of Justice
strongly urges the Congress to pass it as soon as possible.
Let me begin by explaining the nature of the problem that
this bill is intended to fix. While it may seem intuitive that
those charged with the most serious crimes and who may pose a
flight risk or danger to the community should be detained
before trail, under current law that is not always the case.
Although defendants in Federal cases who are accused of certain
crimes are presumptively denied pre-trial release, under Title
18, United States Code, Section 3142(e), the specific
enumerated list of such crimes contained in that statute does
not include most terrorism offenses.
The consequences of this gap in the law were noted by
President Bush, who, on September 10, 2003, in a speech at the
FBI Academy, said, quote, ``Suspected terrorists could be
released, free to leave the country, or, worse, before trial.
This disparity in the law makes no sense. If dangerous drug
dealers can be held without bail in this way, Congress should
allow for the same treatment of accused terrorists.''
Mr. Chairman, your bill would answer the President's call
to action and close this loophole. The bill would amend Title
18, U.S. Code, Section 3142(e), to presumptively deny release
to persons charged with an offense involved in or related to
domestic or international terrorism or with the Federal crime
of terrorism as defined in U.S. Code 2332b(g)(5). This change
in the law would not result in the automatic detention of
individuals charged with those offenses, but merely a
rebuttable presumption in favor of detention, a presumption
that could be overcome with evidence from the accused that
would favor release.
Adding all terrorism offenses to the list of crimes for
which there is a presumption in favor of detention is warranted
because of the unparalleled magnitude of the potential danger
posed to our fellow citizens by acts of terrorism. These acts,
moreover, are many times committed by individuals who are part
of a larger group, many with international connections that are
often in a position to help their members flee or go into
hiding if released before trial.
It is important to emphasize that this proposed legislation
does not represent a solution in search of a problem. This
problem is a very real one and, unless fixed, the threat posed
by this problem will remain clear and present. I want to share
with the Subcommittee one real-life example of how the current
statutory scheme can impede terrorism investigations and
prosecutions, and why a legislative solution is necessary.
In a recent terrorism case in the Western District of New
York involving several defendants collectively known as the
Lackawanna Six, the Government sought an order for pre-trial
detention of each defendant. The defendants, of course, opposed
this motion. Because Section 3142 did not presently include a
presumption for pre-trial detention in terrorism cases, a
nearly three-week hearing on the issue of detention followed.
In the course of that hearing, we, the Government, were
forced to disclose a substantial amount of our evidence against
the defendants. In fact, the magistrate presiding over the
hearing went so far as to consider a request by defense counsel
to require us to put an FBI agent on the stand so that he could
be cross-examined by defense counsel, which is very unusual.
Fortunately, the magistrate judge denied this request by the
defense, thus avoiding what was already turning into a
miniature trial which would have put the government at a
significant tactical disadvantage due to what would have been a
premature disclosure of even more of our trial evidence.
Moreover, without the presumption of detention in this
case, the magistrate judge did authorize the release of one
defendant. Although that defendant failed to post bail and
therefore was not released, it was later revealed that this
defendant had been the least candid of the six and had, in
fact, lied to the FBI about the fact that he had met with Osama
bin Laden in Afghanistan.
If the law had contained a presumption in favor of pre-
trial detention applicable to the charges of these defendants,
it is unlikely that the Government would have been required to
prematurely disclose so much of its evidence, and virtually
certain that the hearing would not have lasted almost three
weeks. However, let me remind you that even with a presumption
of detention in this case, defense counsel would have had the
opportunity to argue and present evidence against detention.
In addition to tactical concerns, the absence of a
presumption of detention could permit terrorist suspects to go
free altogether without facing justice. In another case, for
example, a Hezbollah supporter was charged with providing
material support to a terrorist organization. He fled the
country after being released on bail. After living overseas as
a fugitive for 6 years, he surrendered to the FBI and now is in
U.S. custody.
These examples illustrate the dangerous loophole that
exists in current law. Clearly, we are not talking about a
purely theoretical problem that may or may not come up in the
future. We are talking about real obstacles the Government has
faced in prosecuting the war on terrorism. Mr. Chairman, the
passage of this bill will go a long way toward ensuring that
such situations cannot occur again.
Once again, thank you for allowing me to testify and
present my perspective as a prosecutor in the field on this
very important issue, and I look forward to answering any
questions that you may have.
[The prepared statement of Mr. Battle appears as a
submission for the record.]
Chairman Kyl. Thank you very much for your testimony, and I
note that both of you conformed to our five-minute rule. Your
full texts, of course, will be made part of our record and I do
appreciate your keeping to our time constraints. We should have
plenty of time to have several different rounds of questions.
Our final witness is James Robinson.
Mr. Robinson, the floor is yours.
STATEMENT OF JAMES K. ROBINSON, FORMER ASSISTANT ATTORNEY
GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON,
D.C.
Mr. Robinson. Thank you, Chairman Kyl and Senator Feingold.
I am pleased to appear before the Subcommittee to offer my
views on Senator Kyl's proposed Judicially Enforceable
Terrorism Subpoena Act.
The issues before the Subcommittee today are of critical
importance to the country and I commend the Subcommittee for
holding this hearing. I want to personally thank the Chairman
and Senator Feingold for your serious attention to the
terrorism threat posed today to the United States and to the
world.
While working as the Assistant Attorney General for the
Criminal Division, it was my honor to appear before this
Committee and subcommittees of the Congress dealing with
criminal justice issues, and I am pleased to be here today to
discuss these important issues dealing with measures designed
to help law enforcement in waging the war against terrorism.
As September 11 taught us all too well, terrorism does
present a grave danger to our National security and to the
safety of American citizens throughout the world. America must
bring all of the appropriate resources to bear in the fight for
freedom and against terrorism.
I have no doubt that this bill and Representative Feeney's
bill in the House--that is, the Anti-Terrorism Tools
Enhancement Act of 2003--are offered with America's best
interests in mind. However, I think some of their provisions
merit very careful consideration both from a law enforcement
and from a civil liberties perspective.
As the Subcommittee, I am sure, already appreciates, as
currently proposed, these two proposals would fundamentally
change in many ways the traditional limits on the power of law
enforcement to interfere with the liberty rights of American
citizens in dealing with their Government.
More specifically, I encourage the Subcommittee to
carefully scrutinize how these new devices contained in these
proposals have the potential for curtailing important checks
and balances that could well create legal and constitutional
challenges, and could in the end cause the war on terrorism
more harm than good.
Over the years, Congress has appropriately, I think, been
reluctant to expand the powers of criminal law enforcement
agents to have direct access to administrative subpoenas to
conduct criminal investigations. Such subpoenas interfere with
the liberty and privacy rights of American citizens.
While Congress has authorized administrative subpoenas in a
variety of civil contexts and in some criminal contexts, the
use of the subpoenas for exclusively criminal investigations
raises a host of constitutional and due process issues not
present in the civil context. To my knowledge, Congress has
never authorized the creation of a potentially secret executive
branch police proceeding of the type that could be contemplated
by these proposals.
I think it is important to weigh the benefit to law
enforcement of granting this power to FBI agents or other
Federal agents carefully against the potential loss of liberty,
and more important from a law enforcement perspective the loss
of the ability for the skilled prosecutors in the Justice
Department to work hand in hand with case agents in conducting
these very sensitive investigations.
The administrative subpoenas for terrorism cases
contemplated by the proposals under review in today's hearing
would compel American citizens to appear for compelled
questioning, potentially in secret on certification by the
Attorney General, before the executive branch of their
Government without the participation or protection of the grand
jury or of a pending judicial proceeding to answer questions
and produce documents. No showing of reasonable suspicion or
probable cause, or even imminent need or exigent circumstances,
would be required to authorize such subpoenas.
The United States Supreme Court has held that witnesses
appearing before Federal grand juries need not be given the
Miranda warnings, for example, in these kinds of proceedings
because they are very different than the type of proceedings
envisioned by the administrative subpoena proposals that are
under consideration here today.
The Supreme Court has said that this is entirely different
than custodial interrogation, that there are marked contrasts
between grand jury investigations and custodial interrogations.
And the Supreme Court has indicated that the powerful coercive
powers of a grand jury are justified because they are in
contrast to police interrogation.
It is certainly my experience that case agents exercise
good faith in conducting their investigations. They do so
vigorously and in the best interest of the country. I think it
works best when they work hand in hand with skilled prosecutors
in making these delicate decisions.
The Justice Department has a series of carefully crafted
guidelines developed over many years in dealing with the
issuance of grand jury subpoenas. And I think it is well to
keep in mind that as diligent and fair-minded as case agents
are, it is worth keeping in mind a comment that has been
attributed to Mark Twain that, ``to a man with a hammer, a lot
of things look like nails.'' To an agent with a subpoena, a lot
of things will look like subpoenable material.
Under this proposal there is no requirement, as there is
under other provisions where administrative subpoenas have been
allowed--and I refer the Subcommittee, for example, to the
situation in which in situations where the Department of the
Treasury feels that there is an imminent threat to a protected
Secret Service person, someone protected by the Secret Service,
administrative subpoenas are allowed under circumstances where
the Director of the Secret Service certifies that there is an
imminent threat of injury to a protected party. That would
address, it would seems to me, some of the justifications that
Ms. Brand, for example, offered about the, I think, very rare
situations in which there might be this exigent circumstances
need.
I think that the proceedings that might be contemplated by
these administrative proceedings are quite unprecedented in the
sense that they are secret proceedings. I think the legislation
contemplates the creation of guidelines, but it is unclear what
those guidelines would be, where the approval level would be.
And I might point out to the Subcommittee that, for
example, even Assistant United States Attorneys in this country
do not have a right on their own to issue forthwith subpoenas.
It requires the personal approval of the United States
Attorney, and that is because I think the Department and
Congress have been careful to not create a situation that in my
written testimony Justice Black once referred to as reminiscent
of a star chamber in which you give a blank set of subpoenas to
case agents who are under a lot of pressure in these cases to
do an effective job, carte blanche, in effect, to give
subpoenas to people who have to then, if they want to resist
it, hire a lawyer, go to court. If they do any of that, you
have lost the advantage of the exigent circumstances.
I think we have developed over many years in the Federal
grand jury system a carefully crafted investigative tool that
has served the country well over 200 years. I think Congress
has been wise to be resistant to the grant of these
administrative subpoenas.
I was the United States Attorney in Detroit in the 1970's.
This issue of administrative subpoenas for Federal agents has
been kicked around for a very long time. I frankly think
Congress has been wise to be careful about authorizing and
granting this authority, and I think it would be well for the
Subcommittee to look at this issue very carefully before making
a decision to move in this area. And if it were to do so, once
a showing would have to be made--and I suggest more than a
hypothetical showing, but some real instances of situations in
which there has been real harm in these cases.
And I hate to raise the slippery slope argument, but it
seems to me that the notion here is if it is good enough for
terrorism cases, why isn't it good enough for kidnapping cases.
The agents would love to have it, but I think it is a great
advantage to require Federal investigative agents to have to
go--it isn't just a speed bump to go to an Assistant United
States Attorney trained and familiar with Federal criminal law
and worried about what is going to happen down the road. Are we
going to create a problem that is going to create a motion to
suppress evidence or otherwise interfere with the successful
prosecution of the case?
These are all, I think, important issues from a law
enforcement perspective, not just a civil liberties
perspective, although I think as we think of this--and I agree
with Senator Feingold that as we develop these tools and
examine them in our important fight against terrorism, we need
to make sure that we reserve to American citizens as much
freedom and liberty that we have, particularly if at the end of
the day we have created a new device, an untested device to
give case agents this very awesome power to interfere with
people's lives even in situations where there isn't imminent
danger.
I have submitted a lengthy piece of written testimony and I
would request that the Subcommittee accept that. I share the
Subcommittee's view that the fight against terrorism and for
freedom must be fought with all appropriate resources. As we
fight for freedom, however, we must continue to live freely and
in a way that shows the world that we respect and honor and
cherish our individual liberties.
With that, I will submit my written submission and be happy
to answer any questions that the Subcommittee might have.
[The prepared statement of Mr. Robinson appears as a
submission for the record.]
Chairman Kyl. Thank you, Mr. Robinson. All three of you
have presented very thoughtful testimony and I very much
appreciate it.
What I would like to do is I would just ask Senator
Feingold if it would be all right with him, since we don't have
other members here--incidentally, as you all know--you are
experienced--this does not reflect any disinterest in this
subject. We are all supposed to be at about four different
places right now, and if more than two bells ring, we will have
to leave to go to the floor. It is important to make a record
and you all are making a record by your statements, both the
written and oral statements, and by questions that we have.
Those, of course, are shared with our colleagues and we
appreciate it.
Let me begin by getting to one of the last points, Mr.
Robinson, that you made. I will ask Ms. Brand a question and if
you would like to respond, please do so. The question concerns
whether or not this would be something new--these
administrative subpoenas would be something new or
unprecedented.
You testified, Ms. Brand, that the Office of Legal Policy
identified approximately 335 administrative subpoena
authorities already existing in current law, and you noted just
two examples in health care fraud and sexual abuse. As I
understand it, not all of those are required to be sought by
the Assistant U.S. Attorney.
First of all, is that latter assumption correct?
Ms. Brand. The administrative subpoena authority that
allows subpoenas to be issued in health care fraud cases and
cases involving sexual abuse of minors is given to the Attorney
General by the statute. That has been delegated down to
Assistant U.S. Attorneys and to any trial attorney in the
Criminal Division.
Another very frequently used administrative subpoena
authority is 21 U.S.C. 876, which has been delegated from the
AG to the FBI. Any special agent can authorize the issuance of
a subpoena for Controlled Substances Act criminal
investigation, any drug investigation.
Chairman Kyl. So it seems to me that it is neither a
precedent-creating situation here nor one which hasn't been
used a lot, nor one which is only used by U.S. Attorneys.
Mr. Robinson, I would like to get your response to that.
Mr. Robinson. Thank you, Senator. There is a report to the
Congress on the use of administrative subpoena authorities by
the executive branch which I am sure the Senator is familiar
with, and it is worth looking at because each of these
subpoenas must be reviewed in their context.
My point about this being unprecedented is it is
unprecedented in this sense: As I understand, its purpose is to
arm line agents, FBI agents, with the ability to serve the
equivalent of forthwith subpoenas, which is give a subpoena to
somebody that says you come to the FBI office now or tomorrow
morning or in 5 minutes from now and bring your documents. So
it is a forthwith subpoena that does not have any Assistant
U.S. Attorney or Federal prosecutor involvement in its
decisionmaking.
It also is secret. It is secret in the sense that the
individual involved can't tell anyone but his or her lawyer,
presumably, or somebody that they need to go to get documents
that they have been subpoenaed. And if they tell the press or
anyone else that they have been subject to such a subpoena, as
I understand the proposal, they are committing a crime for
which they can go to jail for a year. And if they have a
certain intent, it can be a 5-year felony.
So in that sense, I am not aware--and perhaps Ms. Brand can
enlighten me on this--I am not aware of any administrative
procedure subpoena regime that has anything like a secret
proceeding in which agents, not lawyers, can give subpoenas to
individuals to compel them, on pain of contempt of court or
incarceration until they talk, in secret, under these
circumstances. So that is what is unprecedented about it.
I think the others are often in the context of a regulatory
scheme, for example, in the drug area for controlled substances
where we have--it is in the health care area; it is where
people who are health care providers, et cetera.
I am not saying there is no room for it at all under any
circumstances. I just think that because this is new and
because, it seems to me, it is unprecedented in the sense of
who is going to use it, when it is going to be used and what
the checks and balances are, it requires a little different
attention than--and I use these administrative proceedings in
my practice in a variety of these settings because I do this
kind of work and I am familiar with it.
Chairman Kyl. First of all, you cited in your testimony as
an example of how we can already obtain certain kinds of
documents the national security letters. But as I understand
it, they have an automatic non-disclosure requirement. So here
again, it is not unprecedented. We already have a precedent of
something that isn't optional, but is required, and further has
no provision for judicial review.
So if national security letters are fine, then why would
something that is less than that create some precedent?
Mr. Robinson. I think that is another topic and I think
that that is an example of a very targeted, narrow area
requiring a high level of approval. We are now talking about,
as I understand it, unless there are provisions that I haven't
been carefully looking at, basically giving subpoena power to
case agents who need not talk to Assistant U.S. Attorneys
necessarily and who can make a decision to require a forthwith
subpoena to be answered, and not just to deliver documents, as
I understand to be the national security letters, but to also,
at least in the Feeney proposal but not--and I compliment you,
Senator, in yours--these full-scale interrogations. That could
be very troubling, and I think that is a particularly troubling
approach.
Chairman Kyl. Of course, we do not include that in ours. It
is only the custodian of the document kind of appearance that
is required.
Mr. Robinson. I compliment you for that change. I did say
in my testimony I was a little uncertain as to the language
that appears to come from the Feeney proposal that deals with
the broader--
Chairman Kyl. I noted your question in that regard and
because clearly my intent is the same as yours here, perhaps we
can collaborate on language to reflect the point of view you
have there.
We need to get into the other subject, too, and I don't
mean to ignore you, Mr. Battle. But since we are on the subject
of administrative subpoenas, Rachel Brand, can you comment a
little bit on some of the points that have been made here with
respect to the need for secrecy?
In fact, before I ask you to do that, I presume, Mr.
Robinson, that in terrorism cases you would acknowledge that
there certainly are some cases where there is a need for quick
action and secrecy. The question is how do we deal with that.
Mr. Robinson. I certainly agree there is a need for quick
action and for secrecy, and I think there are a lot of tools to
get at that. I commend the Senator for looking at other ways to
do it as long as we do this careful balance that we are all
concerned about.
Chairman Kyl. Right.
Ms. Brand.
Ms. Brand. Thank you. A couple of points. I would just like
to clarify first of all that nothing in the bill gives line
agents the authority to do anything. The authority is given to
the Attorney General, which is typical in administrative
subpoena authorities.
In other contexts, such as in the drug administrative
subpoena context, that authority has been delegated down to the
level of supervisory special agent, but it has not been
delegated down to the level of line agent. So I just wanted to
clarify that. Presumably, the delegation level for this
proposal would be taken care of in AG guidelines which would be
issued after the bill was passed, if it were.
In terms of the forthwith subpoena point, the bill provides
that a reasonable time shall be given to respond. And it is
important to remember that the usefulness of administrative
subpoenas, which is speed, pertains mostly when the recipient
is willing to comply. Obviously, if the recipient is not
willing to comply, he can refuse to comply and no sanction
whatsoever attaches to the mere refusal to comply with the
subpoena. Or he can file a motion to quash, in which case the
speed would go out the window. But in most cases where
recipients are willing to comply, the ability to issue a
subpoena is very useful.
In terms of the need for secrecy, first of all, it is not
unprecedented. One type of grand jury subpoena, for example,
under the Bank Secrecy Act contains or carries a non-disclosure
obligation. There are other administrative subpoena authorities
that have other types of non-disclosure obligations that attach
to them.
But in terrorism investigations, or really in any
investigation, disclosure of the facts of the investigation can
cause flight from prosecution, intimidation of witnesses,
destruction of evidence, and so forth. That is especially true
in terrorism investigations. I know that Mr. Battle has faced
issues like that, especially in his Lackawanna Six prosecution.
And as you pointed out, the secrecy obligation is not
automatic. It only is triggered if the AG certifies that
disclosure would endanger the national security.
Chairman Kyl. I need to go back and review what we did with
respect to guidelines. I certainly agree that guidelines are
required here. The question is how they would be done and if we
haven't made it clear enough how guidelines would be produced,
again I would appreciate any suggestions on how that would be
done.
Mr. Robinson. I think it would be helpful to have some
guidance with regard to how far down this actually would go in
terms of authority. I certainly agree with Rachel that the
Department has, I think, over the years done a very good job of
making sure that the power that it has been given has been
carefully utilized.
Indeed, I testified on proposals to amend the grand jury
system and to reform it, and I opposed that because I think the
Department has done a good job internally. But I worried a
little and I may have misunderstood, but I understood, for
example, in Ms. Brand's testimony that there was a
contemplation that this would be available to case agents under
difficult, exigent circumstances. And if that is not intended,
then--
Chairman Kyl. But if I understand it, the authority is to
given to the Attorney General, who presumably would develop the
guidelines under which the authority would be given. Is that
correct or is that incorrect?
Ms. Brand. That is correct, as in the drug context, those
who are in the field with the case agents, but who are at a
higher level of supervisory authority.
Chairman Kyl. Let me ask one last question and then the
next round I will go into other legislation. We talk about
grand jury, but, Mr. Robinson, I did want to at least ask if
you would concede that when we talk about a grand jury
subpoena, that is a subpoena issued by a Federal prosecutor. It
is not issued by the judge or by the grand jury; it is just
issued by the prosecutor pursuant to the proceedings that are
then pending.
Mr. Robinson. Well, actually, no. The grand jury does issue
the subpoena. The prosecutor asks for it, but the grand jury
has to give it, and we like to think it isn't just a lip-
service process. But I think you are right. There is a very
close involvement by prosecutors.
Chairman Kyl. Right.
Mr. Robinson. But they can't issue them on their own.
Chairman Kyl. No, but I guess the point is if the grand
jury isn't around, he doesn't get to issue the subpoena and
therein one of the concerns we have about the timing issue
here.
My time is up, but I will come back to a second round. Let
me turn to Senator Feingold.
Senator Feingold. Thank you, Mr. Chairman.
This has already been alluded to, but Ms. Brand, the Kyl
and Feeney bills for administrative subpoenas differ in at
least one important way. Representative Feeney seeks to allow
the use of administrative subpoenas for both the production of
documents and for acquiring the testimony of possible
witnesses. Now, Senator Kyl's bill seeks to extend the power to
cover only the production of documents.
Which of these bills, if either, accurately reflects the
administration's position on what administrative subpoena power
is necessary in terrorism cases?
Ms. Brand. We support the bill that Senator Kyl has
introduced that does not contain the broad witness testimony
provision. The authority that we are after that we really think
is necessary is the authority to subpoena documents. My
understanding is that other subpoena authorities that allow for
the subpoenaing of testimony of witnesses are used in a civil
context. Even though by the statute's terms they appear to be
available in the criminal context, they are not used in the
criminal context, and we don't feel that authority is
necessary.
Senator Feingold. Thank you for that answer. Ms. Brand,
time and time again administration officials offer a similar
scenario to explain why the power of administrative subpoenas
should be extended to anti-terrorism investigations. Late at
night, in the middle of nowhere, with no Assistant U.S.
Attorney available, the FBI wants to get records from a
business about purchase of bomb-making materials. So it appears
that the need to obtain records immediately is the main reason
for seeking administrative subpoena power.
If immediacy is truly the reason for bypassing the grand
jury process, then why is there no language included in either
the House or Senate legislation that limits the exercise of the
power to exigent situations instead of granting this broad and
unchecked power to Federal law enforcement effectively 24 hours
a day, 7 days a week?
Ms. Brand. Most other administrative subpoena authorities--
in fact, I only know of one that contains such a limitation,
the one that Mr. Robinson alluded to earlier. Most other
subpoena authorities, such as the ones available in health care
fraud investigations and sexual abuse investigations and drug
investigations, do not contain that limitation. Terrorism
investigations are much more likely--really, every terrorism
investigation involves some exigent circumstance. I don't think
that kind of limitation is necessary.
Senator Feingold. In light of the fact that this has to do
with a situation where immediacy is required, what would be the
harm of having some kind of an intermittent review instead of
this kind of open-ended--in the spirit of Senator Kyl's attempt
to get this language right?
Ms. Brand. I am not sure why the provision in 18 U.S.C.
3486 dealing with Secret Service protectees contains the
immediacy limitation that Mr. Robinson alluded to. But when you
think about exigent circumstances, putting into the law
additional approval requirements only slows things down. So an
immediacy requirement would have the perverse effect, I think,
of slowing things down in a case in which immediacy is the
rule.
Senator Feingold. Mr. Robinson, would you like to respond
to that?
Mr. Robinson. Well, on the subject of slowing things down,
I suppose one could say that the Bill of Rights sort of slowed
things down, and does occasionally, but it was intended to do
that. And it seems to me that if indeed the real motivation for
the administrative subpoenas is that there is some kind of
exigent circumstance, immediacy--that is what has been offered
up as the reason for it--then I am not sure I understand why
requiring such a certification as exists with regard to the
Director of Secret Service in their administrative subpoenas
wouldn't make sense.
The thing that I would worry about, frankly, and I would
worry about it as a prosecutor, is that these administrative
subpoenas would be utilized in lieu of a grand jury because it
is easier because you don't have to go both an Assistant U.S.
Attorney who might be troublesome about things like the
guidelines and whether you are following the rules.
There is this tension that exists, as all the prosecutors
in the room will know, between agents and prosecutors in this
area. It is a healthy tension, it seems to me. It makes Federal
criminal investigations much more credible and effective, and
in the end it makes sense.
I think we have seen examples of situations in which, when
that close working relationship has broken down, we have had
problems. I think most recently the wall that was, I think,
broken down in the FISA area between prosecutors and
investigators in national security cases is a good example.
When I was Assistant Attorney General, this was a battle.
Those of us in the Criminal Division wanted access to that
information, though we could be helpful in conducting those
investigations without violating the FISA statute. And I think
ultimately it was determined that that barrier was a good thing
to kind of lower.
I think the danger that I would worry about with a
widespread administrative subpoena process where the agents
don't have to go to the prosecutors and deal with this is that
even in non-exigent circumstance cases, you would have this
being used in lieu of going through the grand jury process that
has a lot of checks and balances associated with it and where
the courts have understood that, for example, you have a lot of
protections that come from a grand jury system. That is what
worries me a little bit.
Senator Feingold. Well, I appreciate that answer because,
as I indicated in my question to Ms. Brand, the whole basis for
this is the need for an immediate opportunity to get at some
information, and I understand that. But then the failure to
have some kind of limitation on it after the fact sort of
undercuts the credibility of the notion that this is only based
on the need for immediate information, and it confuses me.
In fact, it reminds me of the same problem under the sneak-
and-peek provisions of the USA PATRIOT Act. Most of us don't
want to get rid of the sneak-and-peek provisions completely,
but the resistance to having a renewal every 7 days by a judge
of the authority to be able to do something so extraordinary in
light of the Fourth Amendment puzzles me. Why can't we have
that kind of review once the urgency of the situation
dissipates so that the case can be made again?
Frankly, Mr. Chairman, this is a big part of the problem in
dealing with this issue. I think you, in good faith, are trying
to get this right, but it undercuts the credibility of those
who want the broader provisions if they won't listen to common-
sense ways in which this can be tailored to meet the problem
that has been the basis for why they seek the greater powers. I
think this is an important thing so that, frankly, we can make
joint progress on getting this right, which is exactly what I
want to do.
Mr. Robinson, you mention in your statement that the
Supreme Court has previously noted that there are important
safeguards present in the grand jury system. These safeguards
would not be present when using tools like administrative
subpoenas. Would you expand on the safeguards in the current
grand jury system and why they are so important?
Mr. Robinson. Well, a couple of things. Some of my written
testimony was directed to Representative Feeney's proposal,
which I think was very troublesome, and I am delighted that
Senator Kyl has seen the wisdom of not going that far.
For example, I have pointed out that it has not been found
by the Supreme Court necessary to give the Miranda warnings in
a grand jury setting, even though the witnesses there are under
compulsion with a subpoena. If you don't talk, you can be held
in contempt of court unless you assert your Fifth Amendment
privilege. But, nevertheless, the Supreme Court says that is a
setting in which we have an independent citizen grand jury
present; we have a transcript, we have a record; we don't think
you need to give the Miranda warnings there.
In the proposal by Congressman Feeney, if you were to allow
secret interrogations pursuant to administrative subpoenas, I
think you would have a serious constitutional issue there, and
the Supreme Court has commented on that.
I would also say that my comments are directed toward the
fact that the Department of Justice has a chapter in the U.S.
Attorneys Manual dealing with grand jury process and guidelines
and who you subpoena, when you subpoena, the appropriateness of
subpoenaing people. There is a policy on forthwith subpoenas
that requires the approval of the United States Attorney before
an Assistant U.S. Attorney can issue a forthwith subpoena.
The Federal courts have expressed serious criticism and
concern about the issuance of forthwith subpoenas. And as I
understand the principal motivation for this proposal, it is to
allow agents to issue forthwith subpoenas. And so this is an
area that just needs some care, it seems to me. I think the
seasoned judgment of skilled Federal prosecutors, people like
United States Attorney Battle and others, is important in this
process.
I worry that the proposal is going to create an end-around
this system of careful checks and balances and it won't be
limited to these exigent circumstances. I mean, case agents
want to get the job done and if they don't have to walk across
the street and talk an Assistant U.S. Attorney into something,
they are going to go and do it themselves. And I don't
criticize them for it. That is their job, that is what they are
supposed to do.
But I think we have a system that says you talk to the
AUSA, you deal with the policies that are involved, you work
together on these investigations. I am sure Mr. Battle has duty
assistants who are available 24/7, who have beepers on. You
know, they are available, they are in the trenches fighting the
war on terrorism. They should be there helping to make these
critical decisions so that when they get a good case, they do
the kind of job they did and I compliment them for in the
Lackawanna case and others, and get an effective prosecution,
one that is going to stand up and stand the scrutiny of
appellate review.
Senator Feingold. Mr. Chairman, I think my time may be up.
Chairman Kyl. Let's go to 5 minutes now, so we will just go
back and forth, if you want to do that.
Senator Feingold. Sure.
Chairman Kyl. We will just do five-minute rounds.
I promised, Mr. Battle, I would get to you next. I just
find it incredible that the statutes list a series of alleged
criminals for which there is a presumption for detention
because of the probability of flight or of some other problem,
and yet terrorists are not on that list. I mean, that is such
an incredible--well, presumably the statutes were written way
back before we were concerned with terrorists, or I am sure
that terrorists would have been number one on that list. This
disparity makes absolutely no sense to me, and you made the
point that it could be very important in certain kinds of cases
for terrorists to be added to that list.
Mr. Robinson, I don't recall reading in your testimony
specific objections to this, but I honestly am not certain
whether you had objections so let me just ask you straight out
whether you do.
Mr. Robinson. I prepared my testimony starting last Friday
and I have looked at this provision as well. I just didn't feel
sufficiently comfortable to express a strong opinion on the
subject of the proposal. I haven't had a chance to study it
with great care.
Chairman Kyl. Okay.
Mr. Robinson. I mean, I--
Chairman Kyl. If you--I am sorry. Go ahead.
Mr. Robinson. My only point would be that I was pleased to
see that Mr. Battle, notwithstanding the absence of these
provisions, did an effective job of making sure that the people
who were accused in his district stayed in custody during those
proceedings.
But I am just not in a position, I think, to have a careful
view of it. I think there are some issues that are worth
exploring, and I would be happy to mention a couple of those if
you would like,.
Chairman Kyl. Well, I think it would be worthwhile if you
have a chance. I don't want to make any more work for you, but
we can leave the record open and any views that you have that
you would like to express to us, I am sure we would both like
to receive them.
You might respond to the specific--and I noted the same
thing; in the first example Mr. Battle gave, he said, yes, we
got it eventually, but it took three weeks of hearing where we
had to disclose a lot of information that we would have much
preferred not to have disclosed.
If you want to expand on that, Mr. Battle, perhaps that
would help lay a greater foundation for this discussion.
Mr. Battle. Thank you, Senator. Senator, you mentioned in
introducing me that in a prior life I was an Assistant U.S.
Attorney. And in that prior life, I prosecuted drug defendants
and we had the presumption and it worked very well. It was
clear there was a recognition by Congress that at that time
those types of defendants presented the kind of problem in our
country and in our communities that it was necessary for us to
have that type of tool. Obviously, you have alluded to the fact
that no less such a tool should be necessary in the context of
fighting terrorism.
But the point is in the Second Circuit, we are allowed to
proceed by proffer in detention hearings, and in that context
the focus of the hearing is really on pre-trial release or
detention. In our case, two things happened to us that caught
us completely by surprise. One, the attention of the issues
shifted to the question of whether or not the statute that we
were prosecuting these defendants under was constitutional,
which we should never have had to deal with at that point in
the proceedings.
In some sense, while I won't minimize the need for
discussions about the strength of the Government's case, we had
to go well beyond what I had ever experienced in presenting to
the court that which we knew about our case, much of which we
wanted to hold close to the vest because the Lackawanna Six
case was actually the Lackawanna Eight and we had two
defendants who had already fled the country.
So we were put in a real position of jeopardy of having to
continue to disclose. And because the court could not start
with a presumption that then would shift the burden to
defendants to come forward and discuss matters related strictly
to the matter of release or detention, but we got into all
these other focuses, it put our case in jeopardy and it put our
agents in jeopardy.
Chairman Kyl. I appreciate that. Let me go back to the
question of constitutional issues that have been raised to ask
both Ms. Brand and Mr. Robinson, are either of you aware of any
case in which the use of administrative subpoenas has been
found a violation of the Fourth Amendment? Does the court
uphold the existence of that authority?
Ms. Brand. Thank you. The Supreme Court has held--I am
forgetting the year of this decision--that administrative
subpoena authorities do not require a probable cause standard,
that a relevance standard is sufficient under the Fourth
Amendment. So, no, the Supreme Court has never held that an
administrative subpoena authority like the one here violates
the Fourth Amendment.
The Sixth Circuit in an opinion specifically discussing 18
U.S.C. 3486, which is the health care fraud/sexual abuse of
children provision, took Supreme Court precedents to hold that
that provision also did not violate the Fourth Amendment with
its relevance standard.
Chairman Kyl. Thank you.
Mr. Robinson, are you aware of any other different case?
Mr. Robinson. No. I think that is right. I am not so sure
you could predict the same result under Congressman Feeney's
proposal necessarily, but it may not get tested in light of
your proposal.
Chairman Kyl. We will hope to make ours the one that works
and then we won't have that constitutional issue to worry
about.
Senator Feingold.
Senator Feingold. Thank you, Mr. Chairman.
Let me just say to Mr. Battle I was going to ask you a
question along those same lines about the Lackawanna Six. You
know, I am listening carefully about the claims you are making
about the problems that this caused for the Government in the
disclosing of information, and so on. But I would simply note
for the record that this proceeding, in part to your skills and
others', was very successful. All the defendants pled guilty
and as a part of the plea agreements, all the defendants agreed
to fully cooperate with the Government. So I can't help but at
least note for the record that the current system seemed to
perform pretty darned well in this circumstance. But I do take
seriously the specific points you made.
Now, let me ask you something different. In both the Senate
and the House legislation on pre-trial detention, the
definition of terrorism includes an offense that, quote,
``appears by its nature or context to be intended to intimidate
or coerce a civilian population, to influence the policy of a
government by intimidation or coercion, or to affect the
conduct of a government by mass destruction,'' unquote.
These definitions seem to be broad enough to include the
types of protests that regularly occur in cities across this
country. For example, many types of loud and angry protests
like those that sometimes occur surrounding WTO meetings,
property damage protests such as those committed by members of
animal rights groups, and right-to-life protests where members
make a human barricade between the street and the abortion
clinic might conceivably be covered by this definition.
The Attorney General would have the final word on which
participants of which political protests could be detained
under this proposal. Does the Justice Department really intend
to cover political protests in this legislation? Do you see any
First Amendment problems with this definition?
Mr. Battle. Thank you, Senator. Senator, in our district
there is a line of cases that we deal with under a project
called EXILE, and that deals with gun prosecutions where we
partner with local law enforcement when we bring cases in the
Federal context to get sort of more bang for our buck because
the statutory scheme allows us to put criminals in jail for
longer periods of time for more serious crimes than some of the
State statutory schemes allow.
In that context, one of the hammers that we have in the
Federal system is that we have a better shot at pre-trial
detention of those defendants than they have had success with
at the State level. But the policy that we have in our office
is never to seek pre-trial detention except in the most
appropriate cases, and what that means is we don't ask for it
in the cases unless, from a factual standpoint, they fit within
what the statute requires in a request for pre-trial detention.
So in response to your question, what I would say is this:
We would ask for pre-trial detention in the appropriate cases
depending on the defendant. The focus in pre-trial detention is
on the defendant and the facts and circumstances that support
such.
You may have a defendant that you have described that falls
under the definition of international terrorist for which we
may move the court for pre-trial detention. We want the ability
to do so because in certain circumstances there may be a risk
of flight and certainly very much a danger to the community.
Senator Feingold. I appreciate the answer, but it struck me
that you seem to be suggesting how you would use the powers
that are given. What I was more getting at is the language
itself and the potential scope of the language in the hands of
those who may not be as responsible. Doesn't that give you some
concern?
Mr. Battle. Well, if I understand your question, I thought
you said that the power would lie in the hands of the Attorney
General. But actually the power to detain would lie in the
hands of the court and the recommendation of whether or not
someone is detained would happen at the earliest stages of a
proceeding when a defendant is charged. The issue of pre-trial
detention is not visited until some time after the arraignment
or the initial appearance.
Senator Feingold. Wouldn't you concede that this is
something of a broadening of the flexibility here, that the AG
would only certify this?
Mr. Battle. I am not sure I understand your question,
Senator.
Senator Feingold. The Attorney General certifies that the
crime is the type for which the presumption is appropriate, but
isn't it somebody else who makes the specific decision about
who could be detained?
Mr. Battle. The specific decision about detention, from my
experience in the field, lies with the magistrate judges and
the judicial officers in the Federal system. The statutory
scheme that covers pre-trial detention covers a broad range of
criminal activity, which we hope will now include statutes that
involve terrorism. We use it for drug dealers, we use it in gun
cases, we use it in violence cases, we use it in child
pornography cases and others of the most serious nature.
Senator Feingold. Mr. Battle, you also cited the case of
Mr. Asi, who was originally arraigned in 1998. I understand
that Mr. Asi turned himself in to Federal authorities last
month. At the more recent 2004 bail hearing when the Government
argued that Mr. Asi should be detained, Mr. Asi agreed.
Are you suggesting that Magistrate Morgan made the wrong
decision in 1998? Do you know if the Government appealed the
detention ruling, and have you personally reviewed the
transcript of the proceeding?
Mr. Battle. Senator, apologetically, I do not have as much
detailed information as it seems you have about that case. I
don't really wish to comment about it at this time.
Senator Feingold. Well, do you have any instances where the
system has failed us involving a pre-trial detention hearing
since Mr. Asi's original pre-trial detention decision in 1998?
Mr. Battle. Was your question do I have any--
Senator Feingold. Do you have any instances where the
system has failed us?
Mr. Battle. None that I am aware of.
Senator Feingold. Thank you, Mr. Chairman.
Chairman Kyl. Mr. Robinson might want to add something.
Senator Feingold. Mr. Robinson?
Mr. Robinson. I was just going to offer a point of very
modest personal privilege that Magistrate Morgan was an
Assistant U.S. Attorney of mine when I was U.S. Attorney and I
just vouch for her. I think she is an outstanding Federal
magistrate judge. I haven't read the transcript of that
proceeding, but I know she is diligent and does an effective
job.
I was going to just offer one point. I have read the bail
decision in Mr. Battle's case and I think it looks to me to be
very carefully and thoughtfully done. I think the one
incidental benefit that is worth keeping in mind in terms of
the integrity of our criminal justice system is for neutral
magistrates to be making decisions in this area.
I don't weigh in on this presumption issue yet and I will
be happy to get back to it, but I do think the fact that our
criminal justice system gives the power to an independent
judiciary to make the bail decision, which is after all a
constitutional right in this country, is worthwhile as we look
around the world. And we can proud of the fact that when we
incarcerate people who are presumed innocent in our system, we
do it through a process. Sometimes, it takes longer than we
might like, and I know the bail process Mr. Battle referred to
was lengthy. But nevertheless I think it is something that we
can point to with pride and we should be mindful of that.
I would also just offer again the notion that in some of
these terrorism cases, there is a problem--and I am sure Mr.
Battle from his former life as a defender will appreciate it--
that much of the evidence in these cases is derived and
procured by the Government. It is classified, and therefore the
Government has most of the information in many of these cases,
which would make it difficult sometimes for lawyers
representing people accused in some of these cases to do an
effective job of dealing with the presumption. It is just a
factor.
As I say, I haven't decided myself because I haven't
studied it carefully enough, but these are just a couple of
thoughts that occurred to me in response to your question,
Senator Kyl.
Chairman Kyl. I just want to reiterate what we are talking
about here in case anybody has missed it. There is a whole list
of crimes in which, when a judge or magistrate makes the
decision of whether to hold the person without bail because the
person is likely to flee, for example, or could pose a danger
to people--there is a whole list of provisions in the Code
today that say the presumption is that because of the nature of
that crime, is the defendant that, in effect, has the burden of
proof that he is not going to flee and therefore shouldn't be
held. In most cases, it is the Government's burden of proof
that he is more likely to flee, and therefore the bail should
be set very high or shouldn't be granted.
All we are doing is adding terrorism to that list in which
the burden shifts. The arguments are still made by lawyers to a
judge, who makes the decision based upon constitutional
principles. And all we are doing is saying that of all crimes
in the world in which there ought to be a presumption that you
might have a problem with this person fleeing or causing a
problem, it is in a terrorist case. That is all this
legislation seeks to do. So I just wanted to make that clear.
I wanted to ask Rachel Brand about the substantive
differences, really, if there are any, between grand jury
subpoenas and administrative subpoenas. In other words,
assuming that the Attorney General develops good guidelines
that apply to the FBI, why should we fear more about an
administrative subpoena issued here than a grand jury subpoena,
which, of course, are issued all the time--I shouldn't say all
the time, but are a frequently issued subpoena.
Ms. Brand. Thank you. The standards are essentially the
same. So, substantively, the two are essentially the same. They
both are based on a relevance standard, both grand jury
subpoenas and almost all administrative subpoenas.
Mr. Robinson suggests that the FBI agents are more suspect,
essentially, than Assistant U.S. Attorneys. I would welcome Mr.
Battle's comments on the relationship between most U.S.
Attorneys' offices and most FBI field offices, but I don't
think most prosecutors hold the view that the FBI lacks the
professionalism required to utilize this authority responsibly.
Like the U.S. Attorney Manual provisions that Mr. Robinson
alludes to, the FBI also has its own internal guidelines for
the use of the existing administrative subpoena authorities
which point out that they should be used sparingly and give
other types of guidance about the legality of their use. So I
don't think there is any substantive difference between the
two.
Chairman Kyl. And the person to whom the subpoena is issued
can hire counsel?
Mr. Brand. The recipient can move to quash or can simply
refuse to comply, right.
Chairman Kyl. Exactly.
Mr. Battle, would you like to comment on this?
Mr. Battle. Senator, if I could just interject, I don't
want to leave this hearing today with the thought that U.S.
Attorneys or Assistant U.S. Attorneys are in any way opposed to
the FBI agents having this subpoena authority that we are
discussing in great detail today.
I can tell you that at one point in the Lackawanna Six
case, as I said, we started out with eight and it was a weekend
when we obtained the complaint from the Federal judge to arrest
them on a Friday evening. On Saturday morning, I was en route
to Washington to engage in some matters related to the case and
I was traveling with the FBI agent in charge of the Buffalo
office. The agents were back in Buffalo attempting to round up
the six that we knew were in the Buffalo area, and we learned
as we boarded the plane that they had five of the six in
custody. Two, we think, were abroad, and one was somewhere; we
didn't know where that person was.
The agents were in the field. It was a Saturday morning. My
office was closed, the courts were closed, and I would like to
think that an FBI agent in the field would have had the
authority, if necessary, to exercise the appropriate power and,
if necessary, have the power to get an administrative subpoena
to gather evidence to find the individual that we could not
find that we believed was still in the States and in our
community. Ultimately, we did find that person because of good
police work, but that is something that could have presented a
problem for us. So I just don't want that to get lost at this
time.
Chairman Kyl. I appreciate it.
Senator Feingold.
Senator Feingold. Mr. Chairman, I just have one more
question today.
Mr. Robinson, the proposals for a new administrative
subpoena and for new pre-trial detention rules would vest more
powers in the hands of the administration and take power from
the courts and grand juries. This seems to be part of a pattern
for this administration.
Do you think that giving the Attorney General and law
enforcement more and more authority at the expense of the
courts is a positive trend and bodes well for the fight against
terrorism and for constitutional protections?
Mr. Robinson. I think I would have to say not necessarily,
and you have to look specifically at the provisions. But let me
take this opportunity to say that I have nothing myself but the
highest regard for FBI agents and have worked closely with
them. Director Mueller was a colleague of mine at the Justice
Department. I have high regard. He held the job that I held
there. One of my colleagues in my current law firm is the
former Deputy General Counsel of the FBI.
It is important to recognize that the roles of FBI agents
and Federal prosecutors are different, and I think the system
recognizes that. I am talking about a cooperative relationship
that is important. Many FBI agents are lawyers; they are
skilled lawyers. Many are not. Many of them are familiar with
Federal criminal law and the provisions of the United States
Attorneys Manual.
As we go forward with looking at these proposals, I think
it is important to have these guidelines in place to make sure
that we don't create a parallel system that doesn't end-around
this process. I don't think it will help law enforcement in the
end. This is an honest disagreement, but I think it is a factor
to be taken into consideration as we move forward in creating
something that could be a very different method of operation
than we have been familiar with.
I know 9/11 has changed everything and it certainly
requires us to consider ideas like this, and I think it is
appropriate. I congratulate the Chairman for making this kind
of a proposal and for the willingness to consider these
competing ideas and coming up with the kind of legislation that
will be a real aid to law enforcement in the fight on
terrorism, which is something that we certainly all share as a
goal.
Senator Feingold. Thank you.
Chairman Kyl. Thank you, and I want to thank all of you.
Would either of the other two witnesses like to make any
comments in closing?
I want to express my appreciation to you for supporting my
legislation, by the way, and expressing that.
Mr. Battle, did you have anything else that you wanted to
add?
Mr. Battle. Mr. Chairman, I would just like to say thank
you for allowing me to testify.
Chairman Kyl. I just want to conclude by making this point.
Senator Feingold and I are in complete agreement on two things;
they are very general propositions. The first is that we have
got to do our best in this war on terror, as well as fighting
other criminals. And we also have to adhere to our Constitution
and ensure that everyone is treated with the utmost of
fairness. Within those two broad agreements, there will
necessarily be some disagreements. We aren't good lawyers if we
wouldn't find some way of disagreeing with each other about
precisely how to go about doing this.
It is my intention in pursuing both of these pieces of
legislation to get it right, but to get it; in other words, to
ensure that we have given every tool that can be given to our
law enforcement authorities, not in any way that it can be
abused, but because of the nature of our enemy.
It just seems to me that when you can get records with an
administrative subpoena in a health fraud case, you ought to be
able to do that in a terrorism case. If you can hold a drug
dealer, you ought to be able to hold a terrorist. So these seem
to me to be pretty minimal approaches that nevertheless could
be helpful.
I think the point was made that it might be relatively
rare, but I remember another case that was rare when Agent
Rowley complained about the fact that she couldn't get the
lawyers back at headquarters to issue a subpoena to go into
Zacarias Moussaoui's computers. I actually had to agree with
those who defended the decision that they didn't want to seek
the FISA warrant because I didn't think they could get it
because he didn't technically meet the definition of a person
against whom such a warrant could be issued.
Now, some people thought otherwise, but I think the law was
clear enough that that would not have been granted, which is
why we here in the Senate passed a fix to that that would have
covered a case like Moussaoui as well. That bill unfortunately
languishes in the House of Representatives right now.
It just seems to me that, therefore, there are consequences
to our actions if we don't use every tool that is available.
And as long as they are constitutional--the courts have
declared these kinds of procedures constitutional--we ought to
be as aggressive as we can in dealing with this particular kind
of enemy, while always asking the tough questions, the double
and triple checking that people like Senator Feingold will
always do to ensure that we do it right.
We are going to hold the record open for questions until
next Tuesday at 5:00 p.m. I would also invite the witnesses, if
they would like to add anything to their testimony, they are
certainly welcome to do that.
Senator Feingold, I really express my appreciation to you
for being able to be here today.
Senator Feingold. Thank you.
Chairman Kyl. Let me just say one other thing. I will make
available for the record, and to give to you, Senator Feingold,
right now, at least 12 hearings covering the PATRIOT Act. We
have tried to hold oversight over that PATRIOT Act, some of
which has been very explicit and thorough. Others have touched
on it in one way or another.
Senator Feingold. Well, Mr. Chairman, let me just say that
I let it go the first time you said it, but I don't believe my
comments had to do with the Committee not holding hearings.
Chairman Kyl. I misunderstood that.
Senator Feingold. My comments had to do with the fact that
the administration has not responded to Senators' letters
requesting information, which I find deeply disturbing.
Chairman Kyl. I apologize. I misunderstood.
Senator Feingold. I am aware of this list and I have
probably been at almost every one of those.
Chairman Kyl. Yes. I misunderstood.
Senator Feingold. I appreciate your efforts and my point
was not directed at you at all.
Chairman Kyl. We will keep holding oversight hearings.
Again, I thank all of the witnesses. This was a very good
hearing because we had very good witnesses, and we appreciate
the interest of all of you in the audience.
The hearing will be adjourned.
[Whereupon, at 4:03 p.m., the Subcommittee was adjourned.]
[Submissions for the record follow.]
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