<DOC>
[108 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:95100.wais]
S. Hrg. 108-918
AIDING TERRORISTS: AN EXAMINATION OF THE MATERIAL SUPPORT STATUTE
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
MAY 5, 2004
__________
Serial No. J-108-72
__________
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
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 17
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 1
prepared statement........................................... 153
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 3
prepared statement........................................... 155
WITNESSES
Bald, Gary M., Assistant Director, Counterterrorism Division,
Federal Bureau of Investigation, Department of Justice,
Washington, D.C................................................ 11
Bryant, Daniel J., Assistant Attorney General, Office of Legal
Policy, Department of Justice, Washington, D.C................. 8
Cole, David, Professor of Law, Georgetown University Law Center,
Washington, D.C................................................ 24
Rosenzweig, Paul, Senior Legal Research Fellow, Center for Legal
and Judicial Studies, The Heritage Foundation, Washington, D.C. 26
Wray, Christopher A., Assistant Attorney General, Criminal
Division, Department of Justice, Washington, D.C............... 6
QUESTIONS AND ANSWERS
Responses of Christopher A. Wray to questions submitted by
Senators Leahy and Grassley.................................... 44
Responses of Daniel J. Bryant to questions submitted by Senator
Feingold....................................................... 78
Responses of Gary M. Bald to questions submitted by Senator
Feingold....................................................... 103
Response of David Cole to a question submitted by Senator Leahy.. 107
SUBMISSIONS FOR THE RECORD
Bald, Gary M., Assistant Director, Counterterrorism Division,
Federal Bureau of Investigation, Department of Justice,
Washington, D.C., prepared statement........................... 108
Bryant, Daniel J., Assistant Attorney General, Office of Legal
Policy, Department of Justice, Washington, D.C. , prepared
statement...................................................... 115
Chesney, Robert M., Assistant Professor of Law, Wake Forest
University School of Law, Winston-Salem, North Carolina,
prepared statement............................................. 127
Cole, David, Professor of Law, Georgetown University Law Center,
Washington, D.C., prepared statement........................... 136
Moschella, William E., Assistant Attorney General, Office of
Legislative Affairs, Department of Justice, Washington, D.C.,
letter......................................................... 150
Rosenzweig, Paul, Senior Legal Research Fellow, Center for Legal
and Judicial Studies, The Heritage Foundation, Washington,
D.C., prepared statement....................................... 159
Wray, Christopher A., Assistant Attorney General, Criminal
Division, Department of Justice, Washington, D.C., prepared
statement...................................................... 175
AIDING TERRORISTS: AN EXAMINATION OF THE MATERIAL SUPPORT STATUTE
----------
WEDNESDAY, MAY 5, 2004
United States Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, pursuant to notice, at 10:08 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Orrin G.
Hatch, Chairman of the Committee, presiding.
Present: Senators Hatch, Craig, Leahy, Durbin, and
Feingold.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
Chairman Hatch. I think we will begin the hearing. I think
every American would agree that our government continues to
face an unprecedented challenge. On September 11, 2001, we
suffered a devastating attack on American soil that resulted in
the unprovoked and tragic death of well over 3,000 of our
fellow citizens. The Bush administration responded in a
decisive and careful manner, as we did here in Congress.
One of the key actions this Committee took was to write,
pass, and oversee the PATRIOT Act and other laws that provide
the tools, information, and resources necessary to combat
terrorist threats. As equally important, this Committee took
the responsibility of overseeing the application of these laws.
This is part of our continuing bipartisan series of
hearings examining the effectiveness of current laws aimed at
protecting America from terrorism. One of this Committee's
challenges is to ask whether additional tools and oversight are
needed as we evaluate the adequacy of current laws, including
the PATRIOT Act's impact on our security, privacy, and civil
liberties. I would like to thank my colleague, Senator Leahy,
as well as other members of this Committee for their
cooperation in conducting these important hearings. I also want
to express my appreciation to the men and women in the Justice
Department who are leading this Nation's vital efforts to
prevent terrorism, and I look forward to hearing the
Department's witnesses today and their views.
Two of the Justice Department's most respected prosecutors
recently represented the Department of Justice at a Judiciary
Committee field hearing in my home State of Utah. Deputy
Attorney General James Comey and U.S. Attorney Paul Warner
provided very thoughtful testimony on how the anti-terrorism
statutes are being implemented.
Prior to the enactment of the 2001 law, uncertainty existed
as to whether the ban on giving material support to terrorists
by U.S. citizens included expert advice and assistance applied
to acts occurring outside the United States. We fixed that
uncertainty with Section 805, which also strengthened the prior
material support ban by, one, adding to the list of underlying
terrorist crimes; two, making it clear that material support
includes all types of monetary instruments and activities; and
three, enhancing penalties for those convicted of providing
material support to terrorists.
The law has enabled prosecutors to stop a number of
terrorist plots, and this law has facilitated the prosecution
and conviction of several terrorist cells and many individuals
throughout our country. In one of the first cases using this
new provision, six U.S. citizens who lived near Buffalo, New
York, were convicted for providing support or resources to
terrorists by participating in a weapons training camp at an Al
Qaeda terrorist training camp in Afghanistan. In March, Section
805 enabled the successful convictions of terrorists in
Virginia who aided the Taliban. And currently, Section 805 is
allowing the prosecution of a graduate student in Idaho charged
with aiding terrorist groups devoted to waging jihad against
Russia and Israel. I think this Committee can be justifiably
proud of writing and passing Section 805.
Of course, I am aware that some people are concerned that,
at some point in the future, one of the as-yet-unused material
support provisions might be misused. I am opposed to any misuse
of the provisions, as anyone else.
I am also mindful that on two separate occasions, once in
the Ninth Circuit and most recently in a California district
court, this statute has been found to be vague. It is
unfortunately the case the courts in the Ninth Circuit are
often not the best barometer of constitutionality. I look
forward to learning more about this litigation today and I am
pleased to read that the Department is open to making any
necessary refinements or additions to this particular section
of the statute.
I hope that this hearing will both bring to light the very
real successes stemming from the PATRIOT Act's terror-fighting
tools as well as to provide the Committee an opportunity to
share constructive suggestions for clarifying the Act, if
necessary, and I know that our witnesses will share those
things with us today.
I know that everyone on this Committee shares the common
goal of protecting our country from additional terrorist
attacks, and I believe we are all committed to achieving that
goal with complete respect for the fundamental freedoms that
all of us as American people come to appreciate and to expect.
This Committee has an historical tradition of examining,
debating, and resolving some of the most important legal and
policy issues that have been presented to Congress. We are once
again faced with an important task that will have a profound
effect on our country's security and liberty. As we face the
reauthorization of the PATRIOT Act next year, by the end of
next year, I know we will be up to the task, and it is going to
be because of excellent witnesses like we have today who will
help us to understand these things more. We appreciate your
taking time. We appreciate your being here and we look forward
to your testimony.
[The prepared statement of Senator Hatch appears as a
submission for the record.]
With that, I will turn to our Democrat leader on the
Committee, Senator Leahy.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Thank you, Mr. Chairman. I am glad to have
this long-awaited continuation of the series of oversight
hearings that we started last year on the USA PATRIOT Act. It
is the first, really, oversight hearing of any kind we have had
this year and I welcome it and I welcome our distinguished
witnesses.
I thank the Chairman for scheduling this at a time when
witnesses on all sides could be heard. This is a complex issue
and sometimes we have a time when we can hear one side or the
other. Of course, it is a lot better if we can hear all the
sides.
We are still waiting for Attorney General Ashcroft to
appear before this Committee. He made a brief appearance and
told us it could only be brief on March 4 of last year. I know
he has been hospitalized, but I think of how this Committee
used to bring his predecessor up here and see her almost every
other day because one or another member of the Committee,
including, at that time, then-Senator Ashcroft, wanted to ask
her questions, ask the AG questions. I know the Attorney
General was hospitalized for a medical condition, but he did
return to work 2 months ago. He has had a number of press
conferences around the country, and I wish he would find time
to come by this Committee, so we could at least give Americans
the impression that we really are carrying out our oversight
duties.
In that regard, if there is anybody here from the Justice
Department other than our distinguished witnesses, if you
might, I am sure you still have the same address down there.
Check on some of the dozens of letters that have been sent to
you by myself and by Republican members and other Democratic
members of this Committee that seem to go into the lost letter
division down there. Feel free to answer them. Our address
remains the same, U.S. Senate, Washington, D.C. I have a listed
number. Feel free to call if you would like to answer. I would
love to do it while the administration is still here.
We are also still working on a time to hear FBI Director
Mueller. I understand that he was available to testify next
Wednesday, but we cannot do it that day because Secretary Ridge
is unavailable. I would like to hear from the FBI Director:
after all, we have direct oversight over his agency. Let us
hear from him. There seems to be this feeling that you have to
have people testify in tandem. The FBI Director is the FBI
Director. He is not Director of Homeland Security. The Homeland
Security Director is the Homeland Security Director, he is not
the Director of the FBI. We should not have to wait until they
can both be here like ventriloquists or something. We ought to
be able to hear them separately.
If we cannot have a hearing next week with the FBI Director
because the Homeland Security Director is not available, then
maybe we could hold a hearing on the administration's claim
that it can designate United States citizens as enemy
combatants and hold them incommunicado without charges. We see
the Hamdi and Padilla cases working themselves all the way up
to the Supreme Court--they will be decided by that Court within
the next two months and we have not found time to do any
oversight on the issue ourselves.
I have also asked the Chairman to hold a hearing on the
reported abuse of prisoners by Americans in Iraq. Given the
wide-ranging jurisdiction of this Committee over civil
liberties and prisons, the reported role of civilian
contractors, our role in enactment of the Military
Extraterritorial Jurisdiction Act, and the lack of
Congressional oversight, I think we need to act.
It is amazing to me that the Bush administration has known
about these atrocious things in the prisons of Iraq for 5
months and never said a word to either the Republican
leadership or the Democratic leadership of the House or the
Senate. They knew about it for 5 months, and then when the
press reports it, they said they are shocked. They are
appalled. Well, I think all Americans are shocked and appalled
and the very, very brave American men and women who are
fighting in Iraq and following the rules, and following our
traditions and doing what they are supposed to do are equally
shocked and appalled.
But the administration has known about this for 5 months
and they only become shocked when the press reports it. In
fact, they asked the press to hold off reporting it for a
couple of weeks. Now, I realize by not allowing it to come out
until the time they did, it did not interrupt campaign
schedules. But this should go way beyond campaign schedules. We
have created a horrendous problem for ourselves in the Middle
East and a horrendous problem for the next time, God forbid, an
American soldier is captured.
And to keep it well hidden from everybody, including--and
maybe it is an example of what happens in this Congress--we
don't do oversight and maybe the White House knows they have
such a complacent Congress that we will never ask questions, so
why bother to volunteer any answers?
But it is the height of hypocrisy for anybody in the chain
of command in this administration to stand up and say they are
shocked because it became public when it is something they have
known about for 5 months, and never once did they express that
shock to the people they are supposed to respond to.
Now, back to the focus of this morning's hearing. We have
two criminal statutes that have come under fire in the Federal
courts. Sections 2339A and 2339B of title 18 prohibit the
provision of material support to terrorists and to designated
foreign terrorist organizations. Since the 9/11 attacks, these
statutes have become the weapon of choice for domestic anti-
terrorism prosecution efforts. But with the increased use of
these statutes, some problems have come to light.
For example, several courts have held parts of the
definition of material support to be unconstitutionally vague,
and the Chairman has referred to that. Other courts have raised
questions about the level of intent required to obtain a
conviction. Many have expressed justifiable concern that the
statutes impose guilt by association. We all know that was
rejected by the Supreme Court decades ago during the McCarthy
era.
There have been other problems raised, as well. Former
Assistant Attorney General Viet Dinh, who has been a staunch
defender of the PATRIOT Act, has recognized a need to clarify
the material support laws to avoid government overreaching. In
January 2004, he said, quote, ``I think we can all agree that
there are certain core activities that constitute material
support for terrorists which should be prohibited and others
which would not be prohibited. Congress needs to take a hard
look and draw the lines very clearly to make sure that we do
not throw out the baby with the bathwater,'' close quote. This
hearing should give us a chance to discuss where those lines
should be drawn.
Thank you, Mr. Chairman.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Chairman Hatch. Thank you, Senator.
I, too, have been very upset and disturbed by what has
happened over in Iraq and am happy that the Intelligence
Committee is holding a hearing today that I will attend.
Senator Leahy. A closed-door hearing.
Chairman Hatch. Well, I agree, but it is a very important
hearing. And then the Armed Services Committee is very strongly
looking into it and I think will hold hearings on this. I am
not objecting to hearings in this Committee, but we are going
to have to see what our jurisdiction is before--I have to be
satisfied to that before we do anything along those lines. But
I am hopeful that at least those two Committees in the Senate
will get to the bottom of this, and I hope that the people who
committed these atrocities will be punished severely for them.
Senator Leahy. If I might, Mr. Chairman, I absolutely agree
with you in saying the people who did this should be punished,
because the vast majority of the American men and women who are
over there putting their lives on the line do follow the rules.
What bothered me is that this Congress, both the Republican and
Democratic leadership, was never told about something that we
should have been told about. The question comes to my mind, are
there other things we haven't been told about? And I have a
terrifying suspicion that what we have seen is only the tip of
the iceberg and the rest has been held back.
Chairman Hatch. I hope you are wrong, Senator--
Senator Leahy. I do, too.
Chairman Hatch. --but assuming that you are wrong, what has
happened is unjustifiable under any circumstances. Americans
and our military are certainly not the type of people who would
do things like this ordinarily. So this has been a terrible,
terrible chapter and a very difficult time for, I think, the
world and our country, as well. I think we have got to get to
the bottom of it and we will.
I am pleased to have our first panel of witnesses here
today. I am pleased to have Christopher Wray, who is the
Assistant Attorney General of the Criminal Division in the
Department of justice; Hon. Dan Bryant, who is the Assistant
Attorney General of the Office of Legal Policy at the
Department of Justice; and finally we are going to hear from
Gary Bald, Assistant Director of the Counterterrorism Division
at the Federal Bureau of Investigation.
We really appreciate all three of you being here and
appreciate the Department of Justice in sending so many of its
representatives to join us today, those who really do have
expert opinions and information on this matter and we look
forward to hearing your testimony today.
We will start with you, Mr. Wray.
STATEMENT OF CHRISTOPHER A. WRAY, ASSISTANT ATTORNEY GENERAL,
CRIMINAL DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Mr. Wray. Mr. Chairman, Senator Leahy, members of the
Committee, thank you for asking the three of us here today. I
am pleased to discuss with you the importance of the material
support statutes in our efforts to prevent future terrorist
attacks.
We have scored key victories. Since September 11, we have
charged 310 defendants with criminal offenses as a result of
terrorism investigations. One hundred seventy-nine of those
have already been convicted. We have broken up terrorist cells
in Buffalo--
Chairman Hatch. How many did you say you have charged?
Mr. Wray. We have charged 310 with criminal offenses that
arise directly out of terrorism investigations.
Chairman Hatch. And 170--
Mr. Wray. And 179 have been convicted thus far.
Chairman Hatch. They have actually been convicted of
terrorist activities?
Mr. Wray. Yes, sir, and we have--a number of the other
cases are, of course, pending at this time. We also have a wide
geographic scope. We have broken up terrorist cells in Buffalo,
Charlotte, Portland, and Northern Virginia. We are dismantling
the terrorists' financial network. One hundred thirty-six
million dollars have been frozen in 660 accounts around the
world.
But the recent tragedy in Madrid was yet another grim
reminder that our enemies continue to plot catastrophic
attacks. Several weeks after that, British authorities arrested
nine suspects and seized half a ton of ammonium nitrate
fertilizer. And just a few weeks ago, Osama bin Laden urged Al
Qaeda and its supporters to continue their terrorist attacks
against the United States.
The Department's top priority is to prevent terrorist
attacks. Because our adversaries not only accept, but glorify
killing themselves in the course of attacking innocent people,
we cannot and will not limit our role to simply picking up the
pieces after terrorist attacks. Our offensive strategy targets
both the perpetrators of violence and those who give them
material support.
The chronology of a terrorist plot, I think, is best
understood as a continuum from idea to planning to preparation
to execution and attack, and the material support statutes
enable us to strike earlier and earlier on that continuum. We
would much rather catch a terrorist with his hands on a check
than on a bomb.
The statutory definition of material support indicates the
breadth of resources that terrorists need. They need weapons,
obviously, but they also need the money to buy them, the
training to use them, and the personnel to wield them.
Furthermore, while planning their attacks, they need housing,
expert advice on targets and methods, means of transportation,
and documents to cross borders.
Of course, the material support statutes also allow us to
prosecute those who actually seek to commit violence. Members
of a cell in Lackawanna, New York, as you mentioned, Mr.
Chairman, attended a terrorist training camp in Afghanistan and
pleaded guilty to material support charges and have all agreed
to cooperate. They are serving prison terms ranging from eight
to 10 years. Members of another cell in Portland, Oregon, tried
to travel to Afghanistan after September 11 to fight with the
Taliban, and after being charged with conspiring to provide
material support, they pleaded guilty to seditious conspiracy
and IEEPA violations and were sentenced to terms ranging from
seven to 18 years.
Tens of thousands have attended camps to learn skills like
bomb-making and covert communications, and it is very difficult
to know when and how they may go operational. Nor should we
wait to find out. The material support statutes enable us to
take these defendants off the streets, into court, and on to
prison. These statutes also allow us to disrupt earlier stages
of terrorist plots by pursuing those who support the front-line
killers.
For example, Iyman Faris extended airline tickets and
surveyed a potential target for Al Qaeda. He was recently
sentenced to 20 years for providing material support. In March
in San Diego, two other men plead guilty to providing material
support to Al Qaeda. They sought to buy missiles to sell in
turn to Al Qaeda associates. Each of them faces up to 15 years
in prison for this offense.
And, of course, terrorist supporters can also provide money
itself. For example, we uncovered a group in Charlotte, North
Carolina, that used the proceeds of a cigarette smuggling ring
to fund Hezbollah. The lead defendant in that case was
convicted of 16 counts, including material support, and was
sentenced to 155 years in prison.
Terrorist financiers also conceal their activity through
front organizations. For example, in Tampa, former professor
Sami Al-Arian faces material support charges for allegedly
serving as a leader of the Palestinian Islamic Jihad, sometimes
called PIJ, and PIJ, as the Committee may know, has killed over
100 people, including U.S. citizens.
Terrorists themselves have voiced frustration at the
success of our efforts thus far to cut off their funds. I keep
coming back to the example of Jeffrey Battle, who is a member
of the Portland cell, who in a recorded conversation that Mr.
Bald's colleagues at the FBI picked up, complained, and I am
quoting now, ``We don't have support. Everybody is scared to
give up any money to help us because that law that Bush wrote
about, everybody is scared. He made a law that says, for
instance, I left out of the country and I fought, right, but I
wasn't able to afford a ticket but you bought my plane ticket.
You gave me the money to do it, and by me going and me
fighting, by this new law, they can come and take you and put
you in jail.''
Battle was right. His ex-wife, who knowingly helped fund
his travel to fight in Afghanistan, was prosecuted, pleaded
guilty, and is now in prison, like Battle himself.
We also know that our pursuit of terrorist financiers can
lead to the conviction of the violent terrorists themselves. As
I noted earlier, members of a cell just across the river in
Northern Virginia were recently convicted of providing material
support. In her opinion, Judge Brinkema quoted a report
admitted into evidence that was written by a fundraiser for
Benevolence International Foundation, or BIF, which I think, as
Senator Durbin knows, is an Islamic charity in Chicago. This
fundraiser had been invited, the evidence showed, to observe
the Virginia cell members' military-style training, and he
praised their fervor and their training in his report.
This report first came to the attention of investigators in
Chicago, who suspected BIF of diverting charitable
contributions to terrorist organizations. They forwarded the
report to the Department and to Federal prosecutors in
Virginia. The result is that in Chicago, the BIF director
pleaded guilty to racketeering conspiracy, admitting that
donors were misled into believing that their donations would be
supporting peaceful causes when they weren't. He was sentenced
to over 11 years in prison.
In Virginia, nine defendants on the other end have been
convicted of offenses arising out of their jihad training. The
relationship between these two cases and between these two
investigations illustrates the proactive strategy that the
Department is pursuing and needs to pursue to win the war on
terror.
Mr. Chairman, I thank you again for inviting us here and
giving us the opportunity to discuss how the material support
statutes are being used to fight terrorism, and after you hear
from my colleagues, Mr. Bryant and Mr. Bald, I would be happy
to respond to any questions you or the other members may have.
Chairman Hatch. Thank you, Mr. Wray.
[The prepared statement of Mr. Wray appears as a submission
for the record.]
Chairman Hatch. We will turn to Mr. Bryant now.
STATEMENT OF DANIEL J. BRYANT, ASSISTANT ATTORNEY GENERAL,
OFFICE OF LEGAL POLICY, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Mr. Bryant. Good morning, Mr. Chairman and distinguished
members of the Committee. Thank you for the opportunity to join
you to discuss recent court decisions concerning the material
support statutes and to offer some ideas for improving those
important statutes.
A critical aspect of the Department's strategy for fighting
and winning the war against terrorism is preventing and
disrupting terrorist attacks before they occur, and the
material support statutes are an invaluable tool for
prosecutors seeking to bring charges against and incapacitate
terrorists before they are able to cause death and destruction.
As this Committee is well aware, there has been recent
litigation involving certain provisions of the material support
statutes. In my testimony today, I will review some concerns
expressed by courts a bout various aspects of the material
support statutes, concerns that, unfortunately, may interfere
in the future with the Department's ability to prosecute those
providing vital assistance to terrorists and terrorist
organizations. I will then discuss the Department's response to
these concerns and some ways that Congress might consider
addressing them. Finally, I will briefly suggest a couple of
other ideas for improving the material support statutes.
Some courts have found key terms in the material support
statutes' definition of material support or resources to be
unconstitutionally vague, potentially undermining the
Department's ability to prosecute those supplying assistance to
terrorists or terrorist organizations.
The Ninth Circuit, for instance, has held that the terms
``personnel'' and ``training'' in the definition of material
support or resources are void for vagueness under the First and
Fifth Amendments because they bring within their ambit
constitutionally protected speech and advocacy. The Ninth
Circuit has specifically expressed the concern that an
individual who independently advocates the cause of a terrorist
organization could be seen as supplying that organization with
personnel, and thus has concluded that the term ``personnel''
could be construed to include unequivocally pure speech and
advocacy protected by the First Amendment.
Likewise, the Ninth Circuit has asserted that the term
``training'' could be interpreted by reasonable people to
encompass First Amendment protected activities, such as
instructing members of foreign terrorist organizations on how
to use humanitarian and international human rights laws to seek
the peaceful resolution of conflicts. Applying this Ninth
Circuit precedent, the United States District Court for the
Central District of California recently held the term ``expert
advice or assistance'' in the definition of material support or
resources to be impermissibly vague.
The Justice Department respectfully disagrees with these
decisions holding key terms in the definition of material
support or resources to be unconstitutionally vague, and is
either pursuing or contemplating whether to pursue further
judicial review in these cases.
The Department, for example, has filed a petition for
rehearing en banc with the Ninth Circuit, asking that the court
reconsider the decision of the three-judge panel finding the
terms ``personnel'' and ``training'' to be unconstitutionally
vague. In its petition, the Department has pointed out that the
term ``personnel'' has a discernible and specific meaning found
in basic dictionary definitions of the word. It describes those
working under the direction or control of a specific entity.
As a result, independent advocacy of a designated foreign
terrorist organization's interests or agenda falls outside the
scope of the statutes' coverage. Just as one independently
extolling the virtues of McDonald's hamburgers is not supplying
personnel to the restaurant chain, neither is one independently
advocating on behalf of a foreign terrorist organization
supplying personnel to the organization.
Likewise, the Department has argued in its petition for
rehearing en banc that the term ``training'' is not
unconstitutionally vague. The material support statutes
unequivocally prohibit persons within the United States or
subject to its jurisdiction from providing any form of training
to terrorists or to designated foreign terrorist organizations,
and again, the word ``training'' is a common term in the
English language, a clear definition of which can be found in
any dictionary.
The Department is also currently considering whether to
appeal to the Ninth Circuit the Central District of
California's decision holding the term ``expert advice or
assistance'' to be impermissibly vague. As the Department
argued in the district court in that case, the Department does
not believe that the meaning of the term ``expert advice or
assistance'' is insufficiently clear. Expertise is a familiar
concept both in the law and to those outside of the legal
profession. Rule 702 of the Federal Rules of Evidence, for
example, defines ``expert testimony'' to be testimony based on
scientific, technical, or other specialized knowledge.
To be absolutely clear, the Department believes that the
terms ``personnel,'' ``training,'' and ``expert advice or
assistance,'' as they are used in the material support
statutes, are not unconstitutionally vague and should not need
further clarification in order to withstand constitutional
scrutiny. Even so, given the court decisions reviewed above,
which, if not overturned, threaten to hamper the Department's
ability to prosecute those who provide assistance to foreign
terrorist organizations, Congress may wish to consider amending
the material support statute to provide more specific
definitions of ``personnel,'' ``training,'' and ``expert advice
or assistance.''
Similarly, in light of the reservations expressed by some
courts that the material support statutes could be interpreted
to prohibit activities protected by the First Amendment,
Congress may wish to consider amending the statute to make it
absolutely clear that the statute should not be construed so as
to abridge the exercise of First Amendment rights.
In addition, if Congress were to revise the material
support statutes to respond to these court decisions, there are
at least two deficiencies with the current statutory language
that Congress might also well consider addressing. First, at
present, the material support statutes reach a limited number
of situations where material support or resources are provided
to facilitate the commission of terrorism. Title 18 U.S.C.
Sec. 2339A currently forbids the provision of material support
or resources for only certain Federal crimes likely to be
committed by terrorists, but not others. Consequently, the
Department would support clarifying the scope of the statute to
ensure that all terrorist attacks are covered, and we would be
happy to work with Congress toward that end.
In addition, Congress may wish to consider revising the
definition of material support or resources. The types of
property and services specifically enumerated in this
definition potentially may not include all of the possible
types and forms of support that could be given to terrorists or
to foreign terrorist organizations.
For this reason, the Department would support refining the
definition to encompass any tangible or intangible property, or
service, while at the same time maintaining the current
statutory exemptions for medicine and religious materials. Such
a refinement would heighten the efficacy of the material
support statutes and make it less likely that an individual
prosecuted in the future for providing property or services to
a terrorist or a foreign terrorist organization would be able
to take advantage of any lack of clarity in the statutes.
Thank you, Mr. Chairman and members of the Committee, and I
look forward to answering your questions.
Chairman Hatch. Thank you, Mr. Bryant.
[The prepared statement of Mr. Bryant appears as a
submission for the record.]
Chairman Hatch. Mr. Bald, we will turn to you.
STATEMENT OF GARY M. BALD, ASSISTANT DIRECTOR, COUNTERTERRORISM
DIVISION, FEDERAL BUREAU OF INVESTIGATION, DEPARTMENT OF
JUSTICE, WASHINGTON, D.C.
Mr. Bald. Good morning and thank you, Mr. Chairman, Senator
Leahy, for inviting me here to speak to you today on the
importance of the material support statutes to the FBI's
investigative efforts in the counterterrorism program.
Since 9/11, the FBI's counterterrorism program has made
comprehensive changes to meet its primary mission of detecting,
disrupting, and defeating terrorist operations before they
occur. We have spent the last two-and-a-half years transforming
operations and realigning resources to meet the threats of the
post-September 11 environment.
As a part of this transformation, the FBI has undertaken a
number of initiatives to improve information sharing and
coordination with our National and international partners. We
are committed to the interagency partnerships we have forged
through our Joint Terrorism Task Forces. Likewise, we are
committed to fostering international partnerships and recognize
the critical role that they play in our ability to develop
actionable intelligence. To be fully successful, however, these
partnerships must have the legal tools necessary to investigate
the entire range of terrorist activities, including the
provision of material support.
To prevent terrorist attacks, we need to be able to
dismantle the entire terrorist network, from those that
actually pull the cord on a suicide vest, to those who train
the person making the bomb, to those who raise the money and
facilitated the planning of the attack. By aggressively
attacking the entire network, we maximize our ability to
disable the networks on which successful terrorist operations
depend.
To accomplish this goal, we need the means to neutralize
persons who occupy positions within the terrorist
organizational structure but are also at a distance from the
actual terrorist attacks themselves. The material support
statutes, as broadened by the USA PATRIOT Act, are a vital
component of our investigative and preventative efforts,
targeting the support and resource needs of terrorist networks.
Post-9/11, the FBI's main focus has been on preventing the
next attack. In order to accomplish this mission, we must be
able to identify and disrupt and dismantle what we refer to as
``sleeper cells'' present in the United States. Once we
identify these groups and their members, we must be able to
take proactive measures to ensure that their future plans are
no longer viable. We must be able to take appropriate law
enforcement action to put them out of commission, either
through the appropriate material support statutes or other
criminal violations or by using immigration laws to deport
them.
The terrorists who pose the most imminent danger to the
United States today are those that facilitate financial
transactions through clean bank accounts and other monetary
systems, those that provide weapons and tactical training,
those that recruit new members for terrorist organizations,
those that set up safe and secure Internet accounts for
facilitation of communication, those that provide safe havens
to other terrorists, those that provide expert advice on U.S.
targets and how to attack those targets, those that manufacture
and procure identity documents, those that facilitate and
provide transportation and other logistical duties, and
finally, those individuals who have actually traveled overseas
to attend Al Qaeda and other terrorist training camps and
provide instruction on how to make bombs, surveil a target, and
other terrorist trade craft, and have returned now to the
United States to await further operational direction.
Mr. Chairman, I will skip the portions of my written for-
the-record statement that deal with specific successes that we
have had, many of which were detailed by Mr. Wray previously,
and I will be happy to answer any questions that you might
have.
Chairman Hatch. Thank you, and we will put all full
statements in the record as if delivered.
[The prepared statement of Mr. Bald appears as a submission
for the record.]
Chairman Hatch. Let me begin with you, Mr. Wray. In your
written testimony, you describe the danger we face from sleeper
agents, individuals who attended terrorist training camps and
then entered our country where they keep a low profile until
the day that they become operational. In light of the fact that
there may have been tens of thousands around the world who
received such training in the camps, I am deeply concerned that
there may be a number of sleepers in the United States right
now.
If you were to locate a person who had traveled from some
other country to a terrorist camp where he received months, if
not years of training in things like bombs, bioterror, and
conducting terrorist operations and then took up residence in
the United States, and even if he made no explicit threats
against our country, do the statutes we have been discussing
today provide law enforcement with all the legal tools that are
necessary in order to incapacitate such a person?
Mr. Wray. Mr. Chairman, I think you have kind of put your
finger on a significant concern that I think we all have. I
think that my guess is that most Americans would think that an
individual found within the United States fitting the profile
that you have described should be behind bars. The truth is, it
may be harder than most people would expect for us to put him
there.
And while the sort of person you describe is regarded as
extremely dangerous and not someone we would want walking the
streets, it may be more difficult than people would expect or
that I believe Congress intended for us to make a case against
such a person, because training to commit terror under certain
circumstances may not be a crime, which just stands logic on
its head.
And, of course, a sleeper by definition is someone who has,
in effect, gone to sleep, is in a sort of dormant wait-and-see
kind of mode, and if the person has been well trained in covert
communications and operational discipline, it may be very hard
to--even if we know the person, for example, has been in a
terrorist training camp in the past, to identify something
right here, right now that the person is actually doing. They
may be waiting for a message, for a signal, that kind of thing.
Analyzing our options, our starting point would always be
the material support statutes, in particular whether the camp
that that person might have been at was associated with
something like Al Qaeda and whether we might be able to charge
2239B, providing material support to a foreign terrorist
organization.
But we still have to prove that the sleeper did something
that qualified as providing material support, and usually, we
would go in the direction of showing that the person provided
himself as personnel. The person went and trained in a
terrorist training camp, intending to conduct terrorist
activities. But even in the Ninth Circuit, especially in the
Ninth Circuit, that and all the people who live in that
circuit, that is a risky option now in light of some of these
court cases. We think the court got it wrong, but that is a
problem in that district, I mean, that circuit now.
Assuming we got over those hurdles, though, we still have
the issue of looking for--it may often be that the information
that links the person to the kinds of acts that would get us
over the hump are often foreign intelligence information that
is of such a sensitivity that even with the protections of
CIPA, the Classified Information Procedures Act, we can't use
it because of agreements with the Foreign Intelligence Service
and that sort of thing.
So even leaving all those aside, we may be able to deport
the person under the immigration laws, and while that should
give us some comfort, the fact is, if we go that route, the
person is removed to another country and turned loose there and
we have no ability to make sure that they are not engaged in
further terrorist activity.
Chairman Hatch. Thank you. Mr. Bryant, let me just ask you
this question. Some people are concerned that prosecutors might
use this section against completely innocent people who,
through no fault of their own, donate money or other resources
to an organization they would have no reason to believe is a
foreign terrorist organization.
The Ninth Circuit's opinion quoted my statement upon
introduction of the Senate conference report as proof that
Congress intended that there be a scienter requirement in the
statute. The court defined the term, quote, ``knowingly'' in 18
U.S.C. 2239B to mean that the government must prove that the
defendant either, one, knew of the organization's designation
as a terrorist organization, or two, knew of the unlawful
activities of that organization.
Do you think that Congress needs to clarify the scienter
requirement in the statute, and if so, do you think that the
Ninth Circuit's approach is the correct way to define the
scienter requirement?
Mr. Bryant. Thank you, Senator. We think that Congress may
do well to clarify the scienter requirement after the Ninth
Circuit's decision in Humanitarian Law Project v. Department of
Justice in December of last year. The reason for that, as you
have laid out, is that the scienter requirement articulated by
the court in that case is not what we think is appropriate
under Section 2239B. That is, the court there held that a
defendant either needed to know of the designation of the
foreign terrorist organization, or have knowledge of the
underlying activities that gave rise to the designation made by
the Secretary of State.
Those underlying activities are often classified, known
only to a small number of people that participate with the
Secretary in the designation order. As a consequence, we think
that is an unduly burdensome scienter requirement that the
government would be hard-pressed to meet.
As a consequence, we think, and we have argued as such in
our petition for rehearing en banc in the Ninth Circuit, that
the scienter requirement should be understood to require either
knowledge of the designation of the foreign terrorist
organization or knowledge that that organization participates
in terrorist activities.
Chairman Hatch. Thank you. Senator Leahy, my time is up.
Senator Leahy. Thank you, Mr. Chairman.
We had extensive notice of this hearing, actually not just
for weeks but for months, but for some reason, we didn't
receive the administration's testimony until late last night.
We would be happy to drive down and pick up these things if you
are having trouble getting stuff through the mail, or we also
have fax machines, too. So I will send--this seems to be the
rule, not the exception for the Department of Justice. I will
send you detailed questions on that, but let me ask you a
couple of questions.
Mr. Wray, perhaps you can answer this. What actions has the
Department of Justice taken with respect to investigating and
possibly prosecuting criminal conduct by American civilians at
the Abu Ghraib prison in Iraq or at any of the other places
where the administration has evidence, and the administration
does have evidence, of other torture that has not been made
public yet? What actions have you taken?
Mr. Wray. Senator Leahy, my principal awareness of the
abuse that you are describing, that you are referring to, is
through the news media, and like you and like so many others,
obviously I deplore any mistreatment--
Senator Leahy. Sure. I know you do, and I don't question
that.
Mr. Wray. I just think it is--
Senator Leahy. What steps have you taken since you heard
about it?
Mr. Wray. Since we have heard about it, we have attempted
to determine whether--what sort of Federal jurisdictional
requirements apply to the Justice Department as opposed to the
Department of Defense. As you may know, there is a fairly
intricate framework of statutes and MOUs that apply to dividing
up responsibility and jurisdiction between--
Senator Leahy. Would the Military Extraterritorial
Jurisdiction Act of 2000, would that not give you jurisdiction?
Mr. Wray. The Military Extraterritorial Jurisdiction Act,
or MEJA, applies to certain kinds of offenses and provides us
with jurisdiction over certain kinds of people when evidence
has been referred to us of a possible Federal crime. In the
instance that we are discussing right now, I gather that the
Department of Defense has been conducting an investigation for
some time and the normal practice would be for, as the
Department of Defense is conducting an investigation--which I
have reason to believe and every confidence that they are
conducting thoroughly and fairly--if they come across evidence
that a Federal crime may have been committed over which we
would have jurisdiction and they would not, the normal practice
would be for them to refer that matter or report that matter to
us.
I am not aware of any referral from the Department of
Defense to the Justice Department or the FBI relating to these
matters.
Senator Leahy. I want to make sure I understand that. Even
though you would have jurisdiction, for example, over criminal
acts of civilians who are accompanying U.S. Armed Forces, the
Department of Justice waits for the Department of Defense to
determine whether you have jurisdiction and something should be
referred? Are you doing any proactive investigation of your
own? That is basically my question.
Mr. Wray. We have begun reviewing the information that we
have received. As I said, there has been a longstanding Defense
Department investigation, and as a professional investigator
and prosecutor myself, when there is an ongoing longstanding
investigation, I have always believed that it is very important
to proceed carefully so that we don't disrupt the existing
investigation to which they clearly have devoted a significant
amount of attention and time.
And so while I am not suggesting that we should sit still
or anything like that, I am suggesting that because there has
been, in this instance, a longstanding investigation by another
agency, consistent with our usual practice, even in matters of
this significance, we need to proceed very carefully so that we
don't disrupt their investigation.
Senator Leahy. Do you think there is any possibility the
Department of Justice could keep the Chairman, at least, and
following the procedure of certainly the 30 years I have been
here, the Chairman and the Ranking Member apprised of your
proceedings?
Mr. Wray. Consistent with whatever professional obligations
and legal and ethical obligations we have, I think it is
certainly appropriate that we work closely with the Committee
in its oversight responsibility.
Senator Leahy. That would be a welcome change.
My other question is, Mr. Wray, you said that the
Department should be able to prosecute a person for training at
a terrorist camp to become a sleeper agent on the theory that
the person, and I believe I am restating this, the person gave
his own services as personnel to the terrorist organization.
Why couldn't you just simply use the conspiracy laws that
have been on the books for decades? You are a prosecutor. I was
a prosecutor. I know my experience as a prosecutor was always
to use something that had been on the books for some time
because you have built up stare decisis and you are less apt to
make a mistake. Why not just use those conspiracy laws?
Mr. Wray. We do often charge and use the conspiracy
provisions, both separately in Title 18 and in the material
support statutes themselves. However, as you know from your
prior experience, sometimes you get into issues with the court
and the defense about whether you have got a single conspiracy
or multiple conspiracies. There may be disputes or evidentiary
problems over whether or not the scope of the agreement between
our proposed defendant and his co-conspirators is over the same
objective. That can get complicated.
We prefer to be able to charge material support because,
frankly, when we don't have the problems that Mr. Bryant and I
have gone through, it is actually a more user-friendly statute
for the kinds of scenarios that we are coming across. These
terrorist training camps churn out huge numbers of people who
are often going in different directions for different plots,
and so sometimes that makes--your question is a good one, but
sometimes that is, for prosecutorial consideration, it makes
using that theory more complicated than it might at first blush
appear.
Senator Leahy. Thank you. Thank you, Mr. Chairman. I will
have other questions.
Chairman Hatch. Thank you, Senator Leahy.
We will turn to Senator Craig.
Senator Craig. Mr. Chairman, thank you very much. I might
say to the Ranking Member, I had the opportunity to have dinner
the other night with the Attorney General. He grows
increasingly robust and strong and I would guess there would be
a time when he would want to come before the Committee again.
But he sends his high regards.
Senator Leahy. I am sure he does. After a year and a half,
I would hope that he would be strong enough to come up here for
more than a couple hours.
Chairman Hatch. I don't blame anybody for not wanting to
come before this Committee.
[Laughter.]
Senator Leahy. He probably, having been a member of this
Committee for a number of years and seeing how we used to have
his predecessor up here almost every week, he probably wants to
make sure that doesn't happen to him.
Senator Craig. In other words, you are suggesting he knows
better? Well, anyway--
Senator Leahy. He knows how he treated her and he probably
doesn't want the same treatment.
Senator Craig. Let me turn to the gentlemen on the panel,
and thank you for being here today. I, like all of us on this
Committee, feel that oversight and extensive oversight on the
PATRIOT Act is necessary and appropriate and will continue to
be so as we move toward the reauthorization of it.
One of the reasons the oversight is important and one of
the reasons most of us are extremely concerned about the way it
is being administered, I think, is reflective of the
circumstance and situation and the tragedy oftentimes that
occurs under given circumstances. We are now faced with what
appears to be one coming out of Iraq. Man's inhumanity to man
simply goes on, tragically enough, and if this Committee and
others don't do extensive oversight, under the best of
intentions, sometimes structures break down and civility breaks
down.
But I must tell you that I am pleased you are here, and I
am also pleased that you are recognizing, as some would not
suggest, that there may be need to fine-tune the PATRIOT Act.
In the area of material support, I think we have a case
going on in Idaho right now, and we will find out how far that
can be taken under the statute, because I want to make sure
that this is an effective law and that if there are areas of
ambiguity, as the Ninth Circuit might propose, then I am
pleased you are willing to come before us and say, here are
ways to correct it.
I notice in doing so, at least I hope in doing so, you will
not be called less than patriotic or less than diligent in your
job, because I am one who believes the PATRIOT Act is a
necessary law, and I support it. But now I am being accused of
being less than patriotic when I propose changes to it. So I am
glad to see the administration coming forward and proposing
changes, also.
It is necessary and important. This is work in progress. We
have got to get it right, and I think we will, because the end
result in getting it right is making sure that this country is
a safer place for all of us, and, at the same time, that we are
not willing to allow the environment of terrorism in this
country to take away from us our civil liberties.
That is a fine line that we are now walking, and I am
extremely pleased, Dan, that you would come forward to suggest
that there are areas that we need to look at that might
disallow what I sometimes call the most dysfunctional circuit
in the nation from misjudging the intent of the Act. If they
misjudge it or if they view it in a certain way, others may do
the same, and if that is the case and if we can clarify that,
then let us do that.
You are proposing changes. The President has proposed
changes. And I must tell you, I am proposing some changes.
Other colleagues on this Committee are proposing changes, as
well. And that is why, Mr. Chairman, it is so darned important
that we do a very thorough oversight process as we move toward
reauthorization.
I want to vote again for the PATRIOT Act, but I want to
vote for it again knowing that we have corrected some areas,
adjusted some areas, that it is a finer-tuned law that can get
at the heart of any terrorist activity or organized effort in
this country to perpetrate wrongdoing against the American
citizens.
So I thank you gentlemen for being here today. I have no
specific questions. I do appreciate your dedication and your
successes. I think we are a safer country today, although some
would allege that is not the case, because of your diligence
and because of this law. So let us move forward, Mr. Chairman,
with a very thorough oversight prior to our effort to
reauthorize. Thank you for being here.
Chairman Hatch. Thank you, Senator Craig.
Senator Feingold?
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman. Thank you for
holding this hearing.
Let me first just compliment Senator Craig for his
leadership and bipartisanship in trying to do what he just
said, getting this thing right. It is a difficult environment
in which to raise these issues, but I am extremely proud of his
courage in indicating to the American people that this is about
Republicans and Democrats together, particularly on this
Committee, working together to make the changes that need to be
made to make the PATRIOT Act legislation that Americans can be
comfortable with, so I thank you for that.
Mr. Chairman, I was pleased when you announced last fall
that you would hold a series of oversight hearings on the
administration's anti-terrorism efforts. I am glad that the
Committee is resuming this task. I certainly hope we will have
the additional hearings that you planned soon, including, as
the Ranking Member indicated, a chance to discuss these issues
with the Attorney General, who has not appeared before the
Committee in over a year.
Mr. Chairman, as you know, the President recently made a
number of speeches calling on Congress to renew the PATRIOT Act
now. Most of the PATRIOT Act is, of course, already permanent
law. Of the over 150 provisions in the law, only 16 provisions
are due to expire at the end of 2005. There is, I think, a
public misconception that the whole bill is set to expire. That
simply isn't true.
The sunset provision was a recognition by Congress in
October 2001 that it was acting without the kind of
deliberation that such an important piece of legislation would
normally receive, especially in the area of surveillance.
Significant changes in the law were enacted without the kind of
close scrutiny that provisions that touch on delicate
constitutional balances deserve.
The sunset was an important and crucial provision. It would
allow Congress to revisit some of the more controversial
provisions with more care and with more information on which to
base its judgment.
Mr. Chairman, between now and December 2005, I urge you to
hold hearings on how the administration has used the powers
granted by the PATRIOT Act. I also urge you to hold hearings on
reasonable proposals to address concerns raised by the PATRIOT
Act, such as the SAFE Act, which Senator Craig and I both have
cosponsored and which has been introduced by Senator Durbin, as
well, and which I strongly support.
Mr. Bryant, Mr. Wray, as you know, in January, a Federal
judge in California ruled that a provision of the PATRIOT Act
criminalizing the provision of expert advice and assistance to
a terrorist organization was vague and, therefore,
unconstitutional. The judge found that the term ``expert advice
and assistance'' could be interpreted to include unequivocally
pure speech and advocacy protected by the First Amendment. The
judge found that the PATRIOT Act bans all expert advice and
assistance and places no limit on the type of expert advice and
assistant that is banned.
The Justice Department has argued to the court that the
PATRIOT Act does not criminalize advocacy, association, or
other activities protected by the First Amendment. Does the
Department believe that providing peacemaking and conflict
resolution advice is barred by the PATRIOT Act, and what other
kinds of advocacy or associational activity does the Department
believe is not barred by the PATRIOT Act? Mr. Wray?
Mr. Wray. Senator, I think the Department has tried to
construe and apply the provisions at issue judiciously. I
wouldn't want to--I don't think I am in a position to sort of
sit here and describe every form of activity that I think would
not be covered. I do believe that Congress, I think intended,
and we would all want for the material support statutes to
reach every form of support to terrorism that does not run
afoul of constitutional limitations.
In other words, I would think that the appropriate
objective of Congress--and we believe it is reflected in the
statute, but obviously the Ninth Circuit disagreed--is to reach
all forms of support other than those protected by the
Constitution.
Senator Feingold. It sounds like you would not want to
bring into the sweep of that, then, peacemaking and conflict
resolution advice, would you?
Mr. Wray. Well, the reason I am hesitating is the
following. You may be familiar with, and I want to be careful
about how far I go into this just because it is a pending case,
but you may be familiar with the case in the Southern District
of New York, the Sattar case. I am not sure how you pronounce
the defendant's last name, but it involves Lynne Stewart and
others and relates to their assistance to the so-called ``Blind
Sheikh''. And underlying the allegations in that case, as
described in, I believe, public record information is the
Sheikh's imposition and then withdrawal of support for a cease
fire.
So that may not be--I assume that is not the kind of
peacemaking that you are describing, but you could see why
that, under certain definitions, that could be a kind of
peacemaking in the sense that he says to his followers, ``stop
attacking,'' and then withdraws his support, which in effect
says ``resume attacking.'' So in that situation, we would--
Senator Feingold. I appreciate that answer. I think it is a
little different than what I was referring to, but I look
forward to further refining this issue.
Mr. Wray. I don't know if Mr. Bryant may have a--
Senator Feingold. Mr. Bryant, do you have something to add
on this?
Mr. Bryant. Only that, as Chris has indicated, we
respectfully disagree with the Central District's finding that
the term ``expert advice or assistance'' is unconstitutionally
vague. We think it is a term that has a common meaning.
Certainly the notion of expertise is well known within the law
and outside of the law. Federal Rule of Evidence 702 provides a
useful definition which involves defining expert testimony as
testimony based on scientific, technical, or other specialized
knowledge.
So I think the answer to your question would turn on
whether or not the nature of the assistance provided was
assistance based on scientific, technical, or other specialized
knowledge, which then assisted the foreign terrorist
organization in question.
Senator Feingold. Mr. Bryant, last September, after much
public outcry about the potential abuse of Section 215, the
business records provision of the PATRIOT Act, the Department
disclosed that it had not yet used this provision. But since
that time, Department officials have been cagey about whether
they have used this section since September.
In March, I sent a letter to the Attorney General asking to
clarify whether Section 215 has been used since September 18,
2003. Mr. Bryant, I have not received a response to that
letter. Can you tell me whether the Department has used Section
215 of the PATRIOT Act since September 18, 2003, and will you
make sure that my questions about the use of these provisions
are answered properly?
Mr. Bryant. I will do what I can with respect to seeing
that you receive an answer to your letter, Senator. I am not in
a position to tell you whether or not that section has been
used since September when the number was declassified because I
don't know the number. Moreover, as you know, it is a
classified number. The number itself is classified unless
unclassified, so we would need to discuss it in a different
setting.
Senator Feingold. So when the statement was made to the
Committee previously that it had not been used, that fact had
to be declassified, is that correct?
Mr. Bryant. That is correct.
Senator Feingold. So you have to go through that process
again?
Mr. Bryant. That is correct.
Senator Feingold. Well, I would urge you to do so quickly
in light of my request, and in light of the fact that you gave
this information before, I think it would only make sense that
it would be declassified again so that we can know what is
happening with this provision.
Mr. Chairman, is my time up on this round?
Chairman Hatch. Yes, but I am not going to go another
round, so if you have--
Senator Feingold. Could I ask one more question, if I may?
Chairman Hatch. Sure.
Senator Feingold. I thank you, Mr. Chairman.
Mr. Wray, prior to the PATRIOT Act, the legal standards for
delayed notification or ``sneak and peek'' search warrants were
set by the courts. Section 213 of the PATRIOT Act has been
characterized of the Second Circuit decisions on the delayed
notification warrants. Section 213 allows sneak and peek
searches where the court finds reasonable cause to believe that
notification would have certain adverse results. Adverse
results are defined to include not only instances where
notification would threaten human life or the destruction of
evidence, but also any situation that might otherwise, quote,
``seriously jeopardize an investigation or unduly delay a
trial.''
I am concerned about this catch-all provision for delayed
notification warrants. I am concerned that it could swallow the
rule, because notification of almost any search warrant
arguably jeopardizes the criminal investigation. Last October,
the Department reported that as of April 1, 2003, it had sought
and courts had ordered delayed notice warrants 47 times. That
was over a year ago and I am sure that the number is much
higher now.
How many times has the Department sought and received
authorization to execute a delayed notification search since
enactment of the PATRIOT Act, and obviously you can provide
this in writing if you prefer, but if you could give us a
ballpark figure now of the number of such searches since April
1, 2003, it would be very useful.
Mr. Wray. Senator Feingold, I don't have an updated number
for you. The 47 number was the number that I had the last time
I collected the number, so I wouldn't want to try to
guesstimate here just because I think I would be doing you and
the Committee a disservice by doing so. But I would be happy to
take a look at that and see what information we can provide to
supplement my testimony on the number issue.
I do think it is important to point out that a court--not
the government unilaterally--decides not only whether or not
there is probable cause for the warrant in the first place, but
also whether or not it is appropriate to delay notice--not deny
notice--but delay notice for the various reasons set forth. So
a court has to agree and accept the government's reasons for
that. We have high faith in the integrity and the independence
and the good judgment of the courts in this country and I think
the fact that the 47 times we sought delayed-notice approval by
a court for a search, the courts agreed with and accepted our
reasoning in those cases.
So I certainly take your concern. We try to be very careful
and judicious in our pursuit of that particular technique, but
as you know, it has been in the law for a long time and it is a
very important tool for us to ensure that, especially as we are
acting more and more proactively, terrorists aren't able to be
tipped off and essentially jump the gun in particularly
critical investigations.
Senator Feingold. I know I am over my time, but let me just
say in response that this particular variation on sneak and
peek has not been in the law for a long time. In fact, Senator
Craig and I and others have proposed in the SAFE Act that there
be a renewal process, that the delayed notice not be
indefinite. The only way we are going to be able to evaluate
with our colleagues whether we are right or you are right or
what we should do is by getting this information.
So I am going to urge you to give us this information, and
Mr. Bryant, as soon as possible. I would just remind you, the
President of the United States in his State of the Union
demanded that these provisions be renewed now. For this
Committee to be asked to act in response to the President's
request without this fundamental information is unreasonable.
We need this information at this time.
So I am making that request as strongly as I can and I
would appreciate the information as soon as possible so this
Committee can evaluate it.
Thank you, Mr. Chairman, for the extra time.
Chairman Hatch. Thank you, Senator.
Just one question so we don't ignore Mr. Bald. I understand
that the Department of Justice has brought approximately 60
prosecutions involving the material support statute. Can you
please explain to us how this statute has changed the handling
of terrorism investigations at the Bureau, the FBI?
Mr. Bald. Thank you, Mr. Chairman. The material support
statutes provide us the opportunity to get involved and take
action earlier in an investigation than we typically would be
able to. Some of the facilitating actions that we are
investigating may fall outside of other criminal statutes. For
example, we may have a particular scientist that is providing
advice, guidance, or training to terrorists on how to weaponize
a particular type of biological weapon, that in and of itself,
the providing of training might not be illegal. However, with
the material support statutes, it does allow us to address
those kinds of very serious weapons of mass destruction
terrorist support actions that we face.
So I appreciate your question and I appreciate the
Committee's work on the material support statutes. It is a very
vital tool for us.
Chairman Hatch. Thank you. I do encourage you to help us on
the Committee to understand this as well as we can, because we
do have some objections to the PATRIOT Act. I haven't seen any
really legitimate objections, in other words, where the Act has
been misused. But we want to get it right when we reauthorize
it next year and I would like to see that it is done in the
best possible way we can so that you can continue to use this
very, very important Act to protect our citizens. I want to
compliment each of you for doing exactly that.
Did you have another question, Senator?
Senator Leahy. I was just curious. There is one, and I am
not asking you to talk about an ongoing case, but what prompted
my attention, there is an article in the paper that the
Department is using the material support statute to prosecute a
Saudi graduate student, basically charged, as I understand it,
with serving as a webmaster, a discussion group moderator. He
is not writing anything, but he is the webmaster, and the
theory of the prosecution seems to be that he helped to create
and maintain websites for various Islamic groups that publish
content advocating jihad and provided, quote, ``expert advice
and assistance'' to those groups.
Now, as I say, I don't want to talk about an ongoing case,
but what would prevent the Department from using the same
theory to go after an Internet service provider. They often
give technical assistance if you want to set up a website. You
might want to set up a website, ``Tours of the Middle East,''
for example. They could set that up and then as you get into
that, people are using the chat room or whatever to send things
back and forth. Could you not go after that, the same theory,
could you not go after the Internet service provider? Could you
go after a repairman who came by to work on the computer?
Mr. Wray. Senator Leahy, I appreciate your concern, which I
share, about speaking too precisely about a case that is
pending, and not only is it pending, but the case in question,
as Senator Craig knows, is pending in front of a District judge
and a jury in his State, and out of respect for them, I want to
be very careful not to do anything--
Senator Leahy. I don't want to go into that.
Mr. Wray. Okay.
Senator Leahy. That was what prompted my attention, but I
am just asking, what about my hypothetical?
Mr. Wray. Sure.
Senator Leahy. Christopher Wray helps set up the ``Tours of
the Middle East'' web site and you are the Internet service
provider and then it is used from then on, or a lot of the use
of it is a chat room to talk about these various issues.
Mr. Wray. Again, not speaking about a particular case, but
since we are talking in general terms, the key to the kinds of
scenarios that you are alluding to is the intent requirement of
the statute.
So take the repairman that you mentioned, for example. If
he goes to someone's house and repairs the guy's telephone or
his computer and it happens that the person whose house he went
to is one of these sleepers that we were talking about before,
but he doesn't know the guy is a sleeper or has no idea that
the guy is going to be using the phone or the computer for
terrorist activity, then there would be a significant issue, to
say the least, as to his intent.
On the other hand, if the sleeper needed his phone fixed so
he could communicate with his accomplices and called an
associate who happens to be a repairman and says, ``You need to
come over and fix my phone and computer so I can communicate
with the other Al Qaeda associates with whom I am working,''
and the guy says, ``I will come over and fix the phone to help
you do just that,'' then I think we might be in a situation
where he was providing services to assist in terrorist activity
and there would be an intent issue that would be satisfied.
Senator Leahy. Let me take another step. We put a criminal
prohibition in the PATRIOT Act, a prohibition on providing
expert advice and assistance. Can that be applied to a lawyer
who is representing a designated terrorist group and
challenging the group's designation? I understand the
Department has given licenses to lawyers to represent groups in
such challenges, but suppose they said, no, we are not going to
give a license. They say to the group, you are on your own. We
are not going to license an attorney for you. Would then, if
the attorney went and challenged the designation, would that be
criminally prescribed?
Mr. Wray. Well, obviously, whatever we did in connection
with a lawyer's services would have to be done in a manner
consistent with the Constitution and the rights to effective
assistance and counsel and so forth that are provided therein.
There are, of course, instances, including one pending case, in
which a lawyer provided her services specifically to
facilitate, as we allege, a terrorist activity, and that is a
pending case in New York right now, so--
Senator Leahy. I am well aware of that case. I am trying to
stay away from that one.
Mr. Wray. So I think it depends a lot, again, on the
question of intent, on exactly what the activity was that the
lawyer was engaged in. Certainly, we would not suggest that a
lawyer who is, for example, defending his client in a terrorism
case is in itself providing material support to terrorist
activity.
If you start getting into situations where lawyers are
effectively like in-house counsel, sort of like the old mob
analogies to a terrorist organization, then there might be
situations in which the statute could be constitutionally
applied.
Senator Leahy. How do you determine this license?
Mr. Wray. I am not in a position to address the licensing
issue. I would be happy to try to follow up in writing if that
would be helpful, but--
Senator Leahy. You have argued, I am told, that the
Department charged under 2239B a defendant who may not have
intended to further terrorist activities, just it needs to know
that it was a terrorist organization, is that correct?
Mr. Wray. I believe the--
Senator Leahy. So to use the mob analogy, here comes--the
capo di capi comes down the road in his car and you put
gasoline in it because he is low on gasoline, do you get
charged? If these are terrorist organizations and you don't
intend to further any of their activities, but you knew it was
a terrorist organization and you served a meal to them, can you
be charged?
Mr. Wray. I think the position that we have consistently
taken is that the defendant must know the identity of the
foreign terrorist organization recipient and either one of two
things, that the recipient of the support was a designated
foreign terrorist organization, or that the organization was
engaged in violence and terrorist-type activity.
Senator Leahy. I have another question, and I may want to
follow up on this with you. I will try and do this, but I will
go into specific cases. Maybe you and I should just have a
conversation, because I do know the Idaho case, of course, and
New York case and I do not want to ask questions here to
compromise an ongoing case, but I think we should have a
further discussion of this, Mr. Wray, perhaps privately.
Thank you, Mr. Chairman.
Chairman Hatch. Thank you, Senator.
We appreciate you gentlemen coming today and we appreciate
the advice that you have given to the Committee and we will try
to heed it. Thanks so much for being here.
We welcome our second panel of witnesses. We will first
hear from David Cole, Professor of Law at the Georgetown
University Law Center. Mr. Cole has been involved in numerous
cases involving the material support provision.
Following Mr. Cole will be Paul Rosenzweig, the Senior
Legal Research Fellow at the Heritage Foundation. Mr.
Rosenzweig is an adjunct professor of law at George Mason
University.
We want to thank both of you for being with us today and we
look forward to hearing your testimony and any suggestions you
can make for us. Mr. Cole?
STATEMENT OF DAVID COLE, PROFESSOR OF LAW, GEORGETOWN
UNIVERSITY LAW CENTER, WASHINGTON, D.C.
Mr. Cole. Thank you, Senator Hatch. Thank you for inviting
me to testify, and I ask that my written remarks be
incorporated into the record.
Chairman Hatch. Without objection, we will put all written
remarks into the record as written.
Mr. Cole. There is no doubt that cutting off funding for
terrorist activity is an important and legitimate government
objective, but Congress and the executive have pursued it
through unlawful means.
There are, in fact, three statutes that impose penalties on
people for their associational support of organizations that
have been designated as terrorists. One is 2339B that is the
principal focus of this hearing.
Another is IEEPA, the International Emergency Economic
Powers Act, which allows the government to designate anyone--
citizen, foreign national, U.S. corporation, nonprofit, or
foreign organization--as a terrorist using a definition that is
nowhere provided in any statute or any regulation and then make
it a crime for people to support that individual or group.
And the Immigration Act, as amended by the PATRIOT Act,
authorizes the government to deport foreign nationals for
providing support, whether or not it is wholly innocent or not,
to any organization that the Attorney General and the Secretary
of State have designated as terrorists under a definition so
broad that it would literally include the Department of
Homeland Security. That is how broad the definition is.
There are three problems with these statutes, generically
speaking. First, they impose guilt by association. They
penalize not material support for terrorist activity. That is
2339A. There is no problem with that statute. But instead, they
penalize support for blacklisted organizations, organizations
that have been labeled terrorist regardless of whether the
support has anything whatsoever to do with the terrorist
activity of that group.
So, for example, in the case I am litigating in California,
the Humanitarian Law Project, the government has maintained
that our client, who is providing--was providing human rights
advocacy training to a group in Turkey that represents the
Kurds to encourage it to pursue its means through lawful,
nonviolent means, is covered by this statute and would be
prosecutable if they continued to urge this group to stop
engaging in terrorism and to engage in lawful, nonviolent
means.
Second, the statute is vague and over-broad. It would
include the person who gives gas to a person who--knowing that
the person is a leader of a foreign terrorist organization. It
would, as a Federal judge in Miami recently wrote, it would
include a cab driver who gave a ride to the leader of a foreign
terrorist organization who was here to testify at the U.N. All
the government would have to prove is that the cab driver knew
that the person was a leader of this terrorist organization and
that the organization was designated. There would be no
requirement that the cab driver's ride in any way facilitated
any kind of criminal activity.
Third, these statutes afford the executive branch
unfettered discretion in labeling political groups as terrorist
groups. They either provide no review of the labeling process
or meaningless review. Under the International Emergency
Economic Powers Act, as I referred to before, there is
literally no definition of what a specially designated
terrorist is.
Yet President Clinton named a U.S. citizen, Mohammed Salah,
a specially designated terrorist. That means that it is now a
crime for anyone to provide Mr. Salah with any support
whatsoever, whether it be a piece of bread, whether it be a
newspaper, whether it be medical services, whether it be legal
services. The statute makes it a crime to provide support to
him in any way, shape, or form. He is essentially subject to
internal banishment, and if this were enforced literally, he
would starve to death.
Yet he has never been provided a hearing. There has been no
grand jury. There is no jury trial whatsoever. And there is no
definition of the label that President Clinton affixed to him,
specially designated terrorist. I submit that that is a statute
which is written far too broadly to deal with the legitimate
objective of cutting off support for terrorist activity.
We have seen this kind of government response before. In
the Cold War, we were concerned about a foreign organization,
the Communist Party, that had illegal ends, that Congress found
engaged in terrorist means to further those ends. And the
argument was, we need to cut off all support to that group and
we need to facilitate investigation of communists whether or
not they are supporting the illegal activities of the group.
The Supreme Court accepted the factual assertion that the
Communist Party engaged in illegal ends, used terrorist means
to further those ends. But it nonetheless held that it was
unconstitutional to punish someone for support or membership of
that group, the Communist Party, without proof of specific
intent to further the terrorist activity or the illegal
activity of the Communist Party, and it held that in a series
of cases.
Section 2239B, if construed not to require that kind of
specific intent to further the terrorist activity of the group,
imposes guilt by association in violation of the First
Amendment and in violation of the Fifth Amendment. Thank you
very much.
Chairman Hatch. Thank you. We appreciate having you here.
[The prepared statement of Mr. Cole appears as a submission
for the record.]
Chairman Hatch. Mr. Rosenzweig, we will take your
testimony.
STATEMENT OF PAUL ROSENZWEIG, SENIOR LEGAL RESEARCH FELLOW,
CENTER FOR LEGAL AND JUDICIAL STUDIES, THE HERITAGE FOUNDATION,
WASHINGTON, D.C.
Mr. Rosenzweig. Thank you very much, Mr. Chairman, members
of the Committee. Thank you very much for inviting me to come
to be with you today.
I join with everybody else who has appeared today in
agreeing that thoughtful consideration of the provisions of the
PATRIOT Act is an important and ongoing obligation of this
Committee, and as the Act comes up for reenactment next year,
it will no doubt occupy far more of your time.
I think, also, that it is important to note that there
seems almost uniform agreement as to some aspects of the
material support provisions that are the immediate subject of
your discussion amongst all the panelists, from the Department
and Professor Cole and I, which is that the key, or the single
most significant way in which we can cabin the potential for
prosecutorial abuse, which there is a real potential in any
system of laws, the key is proper construction of the scienter
requirements.
I agree, by and large, with the Ninth Circuit's
construction of the statute requiring some showing of
specificity, some showing of specific intent to actively
support an organization, knowing either the organization has
been designated by the executive branch as a terrorist
organization, or knowing the true nature of the conduct which
the organization is engaged in. I think we could all agree that
the knowing support in advancing terrorist activity is wrongful
conduct that can and should be punishable.
Where I think the courts in the Ninth Circuit and the
District Court in California have gone slightly off the rails
is in misusing the vagueness doctrine where what I think they
are really talking about, or what they ought to have been
talking about is the question of over-breadth.
There is, in my judgment, nothing vague in the statutory
terms used by this Congress. It may prove necessary for you to
clarify them if the Ninth Circuit decisions become more widely
adopted, but verbs like ``to train,'' as in training, are
commonly used in all sorts of provisions. We use ``cell,'' we
use ``pollute,'' we use ``harass.'' All of them are simple
verbs of conduct addressing particular things that an
individual is engaged in and are commonly understood by those
natural meanings. If the verb ``to train'' and ``training,''
its related cognate, are unclear and vague, then so, too, is
selling drugs. So, too, is polluting, and I think that that is
wrong.
Similarly for personnel. If the idea of a personnel is
vague, then the Office of Personnel Management doesn't know
what it is doing in our executive branch. It is clearly
intended to encompass not independent advocacy, but the
provision so employee-type services, agency relationship under
somebody's direction and control. I have similar reservations
about the understanding of expert advice given by this Central
District of California.
What is really at issue here, however, is over-breadth,
that is, the potential application of these clear terms to
protected core First Amendment or Sixth Amendment activity, and
I will answer your question, Senator Leahy. I would be quite
confident and would urge a court that if the Department of
Justice were to try and deny a license and thereby deny
somebody their attorney, that interpretation of the material
support provisions would be, as applied in that particular
instance, unconstitutional and over-broad, and I would urge
that position on any court in the land.
I think what we need to talk about here, or where the
courts have gone wrong, is whether or not over-breadth
challenges should be made on a complete facial basis, thereby
invalidating an entire statute and all of its potential uses,
including the core uses that everybody would seem to agree are
appropriate uses, or whether or not those over-breadth
challenges should come as applied in individual cases.
If the Department of Justice were to go crazy and seek to
prevent people from having lawyers, or, as Senator Feingold
mentioned, seek to prosecute somebody for giving legitimate
training in peace advocacy to an organization, that is right at
the core of your First Amendment concerns. I would assume that,
first off, it would never get out of the Department of Justice,
but if it did, that the District courts would rightly shut it
down. But that is not a reason, in my judgment to invalidate
the entire statute as facially vague or over-broad and thereby
disable the completely legitimate and appropriate uses of the
statute at the core that everybody agrees are the right things
to be prosecuted.
I see my time is up, so I will be happy to answer your
questions.
Chairman Hatch. Thank you so much.
[The prepared statement of Mr. Rosenzweig appears as a
submission for the record.]
Chairman Hatch. Professor Cole, I have read your statement
and I find it intriguing. It is an interesting and very well
thought out statement. I don't agree with it all, but I am open
to some of the suggestions you make.
You take the position that the current material support
statutes unwisely and unconstitutionally, that this statute
unwisely and unconstitutionally penalizes innocent association
activity. What I am going to challenge you and Mr. Rosenzweig
to do for us, because we are going to rewrite this bill next
year and we may reauthorize, I think, almost all of it, but
this is a particularly important section. What I would like you
to help us to decide is where we draw the line between innocent
association and culpable conduct. This is important that you
help us with this, and we are open to your suggestions. I want
them to be valid suggestions and I would expect no less from
you.
Now, I will ask both you and Mr. Rosenzweig to provide us
for the record a marked-up version of the current statute with
your suggested changes and, of course, your rationale for
making those changes. That would be very helpful to the
Committee. I think we would love to have you do that, if you
would.
Senator Leahy. Lucky guys.
Chairman Hatch. What?
Senator Leahy. I said, lucky guys.
Mr. Cole. Could I address that orally, just very briefly?
Chairman Hatch. Well, you have taken a great interest in
this, as I do and as many others do, and I think it would be
very helpful to us if, with your wisdom, you could give us some
assistance here, so sure.
Mr. Cole. I think that there is a way to solve the problem
and that is essentially to impose a scienter requirement, as
Mr. Rosenzweig has suggested, but a different scienter
requirement from the one that he suggests. Mainly, the scienter
requirement that should be imposed is the one that the Supreme
Court said is constitutionally required with respect to all the
Communist Party cases, and that is that you can penalize
someone for supporting a terrorist organization if you show
that his purpose in doing so was to further its terrorist
activities.
But if you show that his purpose in doing so was to further
its lawful activities or to discourage its terrorist
activities, you cannot punish that person. In fact, that is the
line that Congress itself thought it was adopting in the
PATRIOT Act when it adopted expert advice and assistance.
Chairman Hatch. I would be very interested in getting your
suggestions on that.
Mr. Cole. But the way Congress--if you look in my testimony
on page 12, I quote the House report and the section-by-section
analysis of the PATRIOT Act that was offered in the Senate,
both of which say that expert advice or assistance would be a
crime only if it is provided knowing or intending that the
assistance will be used in preparation for or in carrying out
any Federal terrorism offense.
That was Congress's understanding. The problem is, the
drafters wrote it--the drafters, the Justice Department--wrote
it more broadly so that it includes not only supporting--
providing expert assistance and knowing that it is going to
further a terrorist expense, but also any expert advice or
assistance provided to any organization that has been labeled,
even if that expert advice or assistance is designed to
discourage terrorism, as is the case in--
Chairman Hatch. The way for somebody to interpret what you
are suggesting here, and what your testimony seems to suggest
to me, as well, is that Congress can avoid vagueness issues by
merely listing the crimes that we intend to prohibit. Now, that
solution itself would concern me as it would, I think, be
nearly impossible to anticipate the myriad ways that terrorists
could receive material support. Furthermore, I think it may
very well give the terrorists a road map of how to comply with
the letter of the law and still achieving their goals.
So again, I am not confronting you. I am saying, help us.
Help us with this so that we can accomplish our goals to
protect the American people but not hamstring law enforcement
so much, overly hamstring them to the point where we can't
prevent the terrorist activities that are about to occur.
Mr. Rosenzweig, I found your statement particularly
persuasive with regard to the term ``personnel,'' that the term
``personnel'' was not unconstitutionally vague because it can
be easily defined by just looking in the dictionary. In fact,
as you note, the term has been used in a variety of other
statutory contexts.
Would you please tell the Committee what other contexts, if
you can right off the top of your head, what other areas that
term has been used and how long these statutes have been on the
books, and as far as you know, have any of those other statutes
that use the term ``personnel'' been determined to be
unconstitutionally vague?
Mr. Rosenzweig. Mr. Chairman, I listed several instances in
which the term ``personnel'' was used on page nine of my
testimony. There were one, two, three, four, five, six, seven
different instances, all in title 18--
Chairman Hatch. Have any of those been declared
unconstitutional?
Mr. Rosenzweig. I have found--I was once advised never to
say never, but I have found no such instances. I confess I do
not know how long any of those statutes have been on the books.
I do hazard the guess that all of them predate the AEDPA in
1996, though I am not even 100 percent certain of that.
Chairman Hatch. Okay. Again, I am going to challenge you,
as well, to give us legitimate suggestions as to how we might
improve this bill, because my goal here is not to uphold the
PATRIOT Act regardless of what anybody says. We want to improve
it if we can. No statute, to my knowledge, is absolutely
perfect unless it is a one-liner, maybe. I might be able to
come up with some that are perfect, but there aren't very many
that are because we have got to get too many people to agree in
this 535-dual-member body.
Mr. Rosenzweig, let me ask you this. Mr. Bryant has
suggested in his testimony that we consider clarifying the
definitions of the terms ``personnel,'' ``training,'' ``expert
advice or assistance.'' We would also like to have both of your
advice, if you can, on how we might better define them. You
have heard Mr. Bryant's testimony of how he would further
redefine. We would like you to look at that testimony and give
us your best suggestions as to how we might further improve on
the language of the PATRIOT Act in these areas.
Now, they made the case that they did not think that the
Ninth Circuit is right or that the District court out there is
right in these cases. But they also have indicated a
willingness to consider stronger language. But where the balk,
and I think rightly so, is are we going to put language in that
makes it even more difficult to interdict and stop the
terrorists, for instance, the 310 that we have already stopped
and 179 that have been convicted. If we are going to make it
more difficult to accomplish those very important goals, then
let us find a way of doing it within the law and within the
definitions of the law that hopefully can be improved through
your suggestions to the Committee.
I am offering to both of you and other, for those who are
watching, other constitutional experts, as well, to help us to
write the provisions so that they are written better. Nobody
here--I believe the PATRIOT Act has done a terrific job for
this country and I think most people do believe that and it is
absolutely true. But that doesn't mean it is perfect. It
doesn't mean we can't perfect it. It doesn't mean we can't make
it better.
So we are looking forward to reading whatever you two
submit to the Committee and others, as well. We challenge all
constitutional experts to help us to understand this better,
how we might better do our job here in the Senate Judiciary
Committee.
I will turn to Senator Leahy at this time.
Senator Leahy. Thank you. He has not enthusiastically
supported the sunset provisions that Dick Armey and I put in.
Chairman Hatch. I don't support that.
Senator Leahy. Interesting philosophical coalition, if you
don't have one.
Chairman Hatch. It shows the two extremes can get together.
[Laughter.]
Senator Leahy. I do appreciate the testimony I have heard
here. Mr. Rosenzweig, I absolutely agree with you on the
question of counsel. I can't--I remember different times when I
was a prosecutor, we had some heinous crime and somebody said,
``Isn't it awful that John Smith or Mary Jones is defending
that terrible person,'' and I said, ``Why? How can you possibly
say that?'' I am doing my job to prosecute the terrible person
and I hope I will get a conviction. But I would hate to think
that they didn't have strong defense because the next day it
may be me, or it may be you or anybody else.
I know from your own writings and your own statements that
you have always been consistent in that and I applaud you for
it. It doesn't mean, and again, as defense counsel, we like the
people or support the people or agree with the people that are
being defended, but we are going to protect all of us in doing
that.
Mr. Rosenzweig. I certainly hope that is the case. One of
my current clients is doing nine life terms for nine serial--
nine alleged--well, he has been convicted--nine murders. His
case is on appeal. So I wouldn't want it to be the case that my
representation of him necessarily affiliated me with his acts
and I don't think that is a fair thing to say.
Senator Leahy. No, and as I said, I know the more heinous
the crime that I prosecuted, especially if there is assigned
counsel, the more I would urge the court to assign very good
counsel. For one thing, it made it not only a better trial but
you didn't have to worry about, if you did get a conviction, it
getting overturned based on incompetent counsel. With you, they
would not have incompetent counsel.
Professor Cole, I am delighted to see somebody here from my
alma mater, Georgetown, and I appreciate your willingness, and
both Mr. Rosenzweig's willingness, to give your section-by-
section comments.
In his written testimony, Assistant Attorney General Bryant
proposed several amendments of the material support laws,
including expanding the list of predicate offenses. He wants to
include all Federal crimes of terrorism. He wants to specify
that material support can include both tangible and intangible
property or services. Do you have a comment on those proposals?
Mr. Cole. Well, with respect to the first, it depends on
what ``all Federal terrorism offenses'' mean. I don't generally
have a problem with Section 2339A because it requires proof
that someone provided material support to a specific terrorist
act and there is no constitutional right to provide support of
any kind to a terrorist act. It, of course, depends on what you
mean by Federal terrorism offenses, because one of the statutes
that the Justice Department refers to as a Federal terrorism
offense is, of course, 2239B, which permits convictions without
any connection to any kind of terrorist act. So if it included
2339B, it would obviously cause problems. But with respect to
others, I don't think that would be a problem.
With respect to adding tangible and intangible property or
services to the definition of material support, the Justice
Department has just lost cases involving personnel, involving
training, and involving expert advice or assistance. Now they
want to expand it further to something that includes intangible
services. If expert advice and assistance, personnel, and
training are too vague and over-broad, intangible--I don't even
know what intangible services are.
So I think that would raise many of the same concerns. It
would presumably--it could certainly conceivably include all
sorts of speech, just as personnel, training, and expert advice
or assistance do, and, therefore, raise very serious First
Amendment concerns, as outlined in my testimony.
Senator Leahy. Mr. Rosenzweig?
Mr. Rosenzweig. While I think I disagree with Professor
Cole about training, personnel, and expert advice, and I think
I probably would disagree about tangible property--I think I
know what that means and I think that that is pretty clearly
defined--I, too, was struck by the idea of an intangible
service, and perhaps that was just a drafting error and they
didn't mean it. I can't even think of what that is, and if I
can't think of what that is, then it may very well be a bit
vague, though I am obviously not the test.
Senator Leahy. I am glad to hear that, because I couldn't
figure out what it meant, either, and I thought I would go to
guys like you who are far more knowledgeable to see what you
thought.
Mr. Rosenzweig. We do have a concept of intangible
property, I mean, tangible and intangible property, but
intangible services is new.
Senator Leahy. Let me ask just one more question, and I
apologize to Senator Craig for taking time on this, but the
government has argued that money is fungible and so it should
be able to cut off all funds to any group that engages in
terrorism, whether the group also supports vital social
services. What is wrong with that rationale?
Mr. Cole. Well, this is--
Senator Leahy. Is there any constitutional difference
between a prohibition on providing funds to a terrorist
organization and a prohibition on providing other sorts of
physical assets and services?
Mr. Cole. This is the government's principal argument.
Money is fungible and, therefore, the cab driver who gives the
ride to the leader of the foreign terrorist organization is
somehow providing some support that even if it doesn't lead to
a terrorist act would free up some other individual who
otherwise would have given him the ride to the U.N., and
therefore--and that individual might then engage in terrorism
and therefore we should be able to criminalize the cab driver.
What is wrong with that is that it goes way too far, and I
would suggest that we don't believe--
Senator Leahy. Isn't that a little bit more specific,
Professor, than the question of money? If I am going to send--
Mr. Cole. Right.
Senator Leahy. --ten thousand dollars to a known terrorist
organization because I do like the fact that they also have a
school lunch program, and I think, gee, that is nice to have
the school lunch program so here, guys, here is ten grand. Gee,
I really hope you put it in the school lunch program. Isn't
that a little bit different than the cab driver?
Mr. Cole. I am not sure that it is. The government
certainly argues that it isn't. That is why they define
material support to include not just money but all services,
all sorts of personnel, training, and the like. But even with
respect to money, I don't believe we as an American people
believe that you are personally liable because you have paid
money that has then been used by someone else.
I pay taxes, but I don't think anyone would suggest that
because my taxes support the U.S. military, I am personally
liable for the torture inflicted on Iraqi prisoners. We don't
believe that because money is fungible, it is unconstitutional
for the State to provide subsidized transportation and
subsidized textbooks to children in religious schools. If the
argument was money was fungible was accepted, then that would
be an establishment of religion. But no, that is not an
establishment of religion.
We don't believe that everyone who donates to the anti-
abortion group Operation Rescue is personally liable because
Operation Rescue has violated criminal laws. Those in Operation
Rescue who have violated criminal laws are personally liable,
but those who have made a donation to this organization are
not, by virtue of that donation, liable.
We don't believe that every person who donated to President
Nixon's Committee to Re-Elect the President is personally
liable for the Watergate burglaries. We believe that the people
who committed those burglaries and who authorized them and who
supported those burglaries are liable, but not every person who
made a donation to the Committee to Re-Elect the President.
So I think we have historically drawn a line between people
who support an organization that happens to engage in illegal
activities and people who support the illegal activities
itself, and I think that line is precisely the line that the
Supreme Court has held is constitutionally required both by the
First Amendment right of association and by the Fifth Amendment
requirement of a showing of personal guilt.
Mr. Rosenzweig. If I might, because this is, I think,
perhaps the most difficult question you face and perhaps one
where I disagree more with Professor Cole than in other areas,
because the deepest difficulty you face is the question of
blended organizations, organizations that serve or purport to
serve two purposes, a terrorist purpose and an unrelated
humanitarian purpose, and how you deal with that.
I don't think, frankly, that it is too much of a burden to
oblige organizations that are blended to split apart when one
of the activities engaged in is, ex hypothesi, a support for
terrorist activity, and that type of activity is far different
from the types of things that Professor Cole was discussing,
affiliation with CREEP. If you gave money to President Nixon's
Committee to Re-Elect knowing that that money would go to
support an organization that was going to engage in criminal
activity, then you might be liable under some broad conspiracy
theories of the type you alluded to.
Most people don't pay the taxes to America knowing that it
is going to go to fostering the abuses in Iraq that we all
condemn. In fact, we assume it won't.
So the question for you is, where is the balance, and in
that regard, you have to begin with something that doesn't get
mentioned, but we know now, at least after the BCRA, that money
isn't speech, right? At least in most instances, the giving of
money has an expressive form, but it is regulable speech in a
way that is different from core expressive conduct, and the
Supreme Court has told us that.
So I don't think that it is at all unreasonable for
Congress to say, if you want to have a humanitarian arm, you
have got to make it a different humanitarian body and you
cannot act in affiliation with an existing organization that
has been designated lawfully, through the processes of the
Department of Treasury, as a terrorist organization. That
doesn't seem to me a huge burden to impose upon the
organization to be able to receive the funds.
Senator Leahy. Thank you, Mr. Chairman.
Chairman Hatch. Senator Craig?
Senator Leahy. I thank the Senator from Idaho because I
know he could have asked to have his time at that point. I
thought these were important questions and I appreciate his
usual courtesy.
Senator Craig. Thank you. Gentlemen, thank you, and I
appreciate the challenge the Chairman has put before you. I
hope you will engage in that energetically as we work through
this process.
Let me for a moment this morning, Mr. Rosenzweig, turn to
you because I am frustrated by some of the things you have
said, but more importantly, some of the things you have
written. Let me first go to a paragraph in your opening
statement before the Committee--I should say your written
statement before the Committee. Mr. Chairman, I am going to
take the luxury of reading it into the record.
``It is a commonplace for those called to testify before
Congress to condemn the Representatives or Senators before
whom''--to commend, excuse me.
[Laughter.]
Senator Craig. --``Representatives or Senators''--
Chairman Hatch. I was wondering about that.
[Laughter.]
Senator Craig. --``before whom they appear for their wisdom
in recognizing the importance of whatever topic is to be
discussed, so much so that the platitude is often regarded as
mere puffery. Today, however, when I commend this Committee for
its attention to the topic at hand, the difficulty of both
protecting individual liberty and engaging our intelligence and
law enforcement organizations to combat terror, it is no
puffery but rather a heartfelt view. I have said often since
September 11 that the civil liberty/national security question
is the single most significant domestic legal issue facing
America today, bar none, and, as is reflected in my testimony
today, in my judgment, one of the most important components of
a reasonable governmental policy addressing this difficult
question will be the sustained, thoughtful, nonpartisan
attention of America's elected leaders of Congress,'' and so
on.
Now I have before me your legal memorandum from the
Heritage Foundation entitled, ``The SAFE Act Will Not Make Us
Safer.'' I found it interesting reading. In it, you use words
like ``fig leaf,'' political fig leaf. You go on to talk about
pandering to hysteria and not being a leader, and then you use
a variety of other terms, and lastly, you use one here, it says
the proposed modifications of the PATRIOT Act misses the point
completely, so much so that one doubts whether any of the
authors is a serious student of either law enforcement or
intelligence activities. I think those could generally be
classified as ad hominem attacks.
Mr. Rosenzweig. Well--
Senator Craig. Let me now go to the concluding paragraph of
this article. These are your words and the words of Ed Meese.
``In reviewing our policies and planning for the future, we
must be guided by the realization that this is not a zero-sum
game. We can achieve both goals, liberty, and security to an
appreciable degree. The key is empowering government to do the
right things while exercising oversight to prevent the abuse of
authority. So long as we keep a vibrant eye on police
authority, so long as the Federal courts remain open, so long
as the debate about governmental conduct is a vibrant part of
the American dialogue, the risk of excessive encroachment on
our fundamental liberties can be avoided.''
I find that all very curious and I find that in phenomenal
conflict, and I guess I will just leave it at that. To be
accused of being less than patriotic, to be accused of
pandering to hysteria, to be accused of crafting a political
fig leaf, legislative proposals ``based on fear. . .'' You
are darn right I have fear, fear that somewhere, at some time
down the road, these statutes might get misused. And I would
suggest that I am going to err on the side of a person being
free and unabused rather than having to defend them in court
because they were abused and lost their freedoms and their
reputations were destroyed.
So I am going to be easy on you today. I am going to
suggest that you retitle this, and you call it ``The SAFE Act
Will Not Make Us Safer.'' Why don't you say, ``But the SAFE Act
Might Make Us Freer'' ?
Gentlemen, I thank you for your participation today and
look forward to continuing to engage with you as we work
through this most difficult time in our country. We have got to
get it right, but I would suggest that it is less than
constructive to be involved in ad hominem attacks against those
of us who work as diligently as do you to try to get it right.
Thank you, gentlemen.
Chairman Hatch. You can respond, Mr. Rosenzweig. If I could
add, I read the same article and I don't think they were ad
hominem attacks. I think they were your opinion that, you know,
every time we give law enforcement tools, if they are abused,
they can invade civil liberties But I would be interested in
your response to Senator Craig.
Senator Craig. Certainly.
Mr. Rosenzweig. Thank you very much, Senator Craig, at
least for reading the paper. I appreciate that.
Senator Craig. You see, I am a fan of the Heritage
Foundation. I read most of its work.
Mr. Rosenzweig. I do want to make at least one
clarification, and I believe that this is 100 percent correct.
Nothing in anything I have ever written has ever suggested that
anybody with whom I disagree on substantive provisions of the
SAFE Act or any other provision of the PATRIOT Act is in any
way less than patriotic. I will eat that paper if you can find
that in it.
As for the characterization of some of the responses to the
PATRIOT Act as hysterical, I, and by these I mean the external
responses, I stand by that characterization. I have seen ads of
hands ripping up the Constitution. I have seen ads of teary-
eyed white-haired gentlemen coming out of bookstores saying,
``I don't want the government to read my books.''
I don't, either, and I am sure you don't. But in my
judgment, with respect to the SAFE Act, the provisions, and I
know that Senator Durbin is here, too, and I am sure that he
will ask me some more questions, but with respect to the
provisions identified in the SAFE Act for correction, I think
you are looking in the wrong direction. Those are not the
sources of problems.
The material support provisions are potential sources of
problems and we have been talking about them. I call them the
way I see them, and in my judgment, on the merits, the fears
that have given rise to the SAFE Act are not founded in a
realistic appraisal either of the realities of executive and
judicial oversight, and legislative, I might add, or in a
realistic understanding of the legal structures that exist out
in the world today.
If you perceive that as an ad hominem attack, I sincerely
regret that. It was not our intention in any way to be speaking
in an ad hominem manner. But I do think it is a fair criticism
of some who support the PATRIOT Act to say that they are basing
their legislative proposals to you more in fear than in
reality.
I take great comfort and great heartfelt comfort in the
notion that you are here and are approaching this in the
forthright and thoughtful manner that you are. I, with respect,
disagree with you as to the necessity of the SAFE Act
provisions. There were other portions of the SAFE Act, by the
way, that we did not say were unnecessary because I don't think
that they are unnecessary. I think the national security letter
provision, for example, is one as to which I have some concerns
about the expanded government use, and that is not addressed in
the paper. Perhaps it ought to have been, and I might rethink
that at this point or write another paper about it.
But in candor, I think that some of the provisions of the
SAFE Act that you have sponsored rest upon premises of abuse
that are not well founded.
I will end where I end when I often answer this question. I
am comfortable with the PATRIOT Act provisions even if the next
President is John Kerry, and I will stand by that and I will
say that next year if that is what happens.
Senator Craig. Well, I thank you for those comments. Mr.
Chairman, thank you for the indulgence here. I have not yet had
a chance to get to know you, Paul. I know Ed Meese and value
his friendship. I will remain diligent in this area no matter
what the Heritage Foundation might suggest. As I did when I
voted for this Act, I voted for it with caution, recognizing a
time and place and a need. At the same time, I said my job is
scrutiny, constant oversight to make sure that the powers of
government are not abusive.
I would also suggest that I have a healthy fear of an
abusive government, and as a result of that, I am going to err
on the side of a freer citizenry. Thank you, Mr. Chairman.
Chairman Hatch. Thank you. Some think we are erring on the
side of a safer citizen, so as you can see, this debate is a
very important debate and I, for one, personally appreciate the
ideas of others, as I am sure both of you do.
Senator Durbin, we will turn to you.
Senator Durbin. Thanks, Mr. Chairman. I want to thank my
colleague for joining me in this effort. We couldn't be more
different in terms of our votes on the floor. We are probably
at polar ends of the spectrum when it comes to the way we vote.
But we do come together in common cause here, I believe
because, as they say, this political spectrum is not linear, it
is circular. When you move to a certain point to the left, you
end up finding yourself on the right. At this point, we have
found left, right, and center coming together in support of the
SAFE Act.
Let me try to remember some of the basics from my logic
course, and this goes back many decades in college, about what
an ad hominem attack is, and that is a generalized attack. All
lawyers are crooks. All politicians are dishonest. Those are ad
hominem attacks. Another example would be a statement made by
former Attorney General Ed Meese on the ``Today'' show where he
said, ``I think librarians, unfortunately, some of them, at
least, are more interested in allowing pornography to go to
children than they are fighting terrorism.'' That would be an
ad hominem attack.
I think your statements, Mr. Rosenzweig, in the beginning
of your article do qualify as ad hominem attacks in that they
say, ``in the end, they appear to be little more than a
political fig leaf intended to allow politicians to assert they
have responded to public will and fixed the PATRIOT Act. But
capitulating to hysteria is pandering, not leadership. The SAFE
Act will not make America safer.''
So I think that is a generalized ad hominem attack, but you
get more specific in your article. You decide that you want to
really address the authors of the SAFE Act, who happen to be
here today greeting you, and let me quote. ``The proposed
modification of the PATRIOT Act misses the point completely, so
much so that one doubts whether any of the authors is a serious
student of either law enforcement or intelligence activity.''
Those are your words.
So if we take some umbrage at what you have written, I am
afraid you have to live with it. You wrote these words, you
published them, and I assume you still stand by them. I hope
that you understand that many of us on this panel, including
Senator Craig and myself, believe that questioning motives at
this point is not appropriate.
But let me start, and I would like to ask you both this
question. I want to know your starting point on the debate. We
just had an interesting statement made by Senator Craig. He
said, ``I think we ought to err on the side of a freer
citizenry,'' to which Senator Hatch responded, ``I think we
ought to err on the side of a safer citizenry.'' There is the
debate. It is freedom versus security.
So what is the starting point for both you, Mr. Rosenzweig,
and for you, Professor Cole? Do you start with the premise that
we do have certain inalienable rights and liberties, that they
are protected and embodied in the Constitution, and that when
this government wants to take away any of our rights, invade
our privacy, the burden is on the government to prove that we
should have to surrender our rights, or is it the other way
around, and your quote from Locke and others suggest the first
thing is order and security. Then we can talk about freedom. So
where is your starting point, Mr. Rosenzweig?
Mr. Rosenzweig. We need both, order, liberty--
Senator Durbin. Oh, that sounds like a good political
answer.
Mr. Rosenzweig. Well, I am going to try very hard to be
politic today since I obviously failed, in your judgment, in
the drafting.
Our Constitution recognizes that both are important. It
speaks of unreasonable searches and seizures, for example.
Reasonable is a variable that changes in the circumstances. The
same type of search that is unreasonable in order to prevent
drunk driving becomes immensely reasonable--
Chairman Hatch. It is a pretty vague word, isn't it?
[Laughter.]
Senator Durbin. Let me ask you, this Fourth Amendment that
you are referring to also talks about probable cause and
specificity. Now, that is not too equivocal, and frankly, when
it gets down to it, the PATRIOT Act, at least my objections to
it, get to that point, whether there is probable cause, whether
there is specificity in terms of government action. That, I
think, is the standard of reasonableness that we ought to be
looking for.
Mr. Rosenzweig. Actually, you are addressing what is a
longstanding debate in the history of the Fourth Amendment,
because obviously, as you know, the particularity and probable
cause standards apply to the issuance of warrants and are in
the second clause of the amendment. The reasonableness standard
is in the first clause, and many scholars believe that the two
were at least originally intended to act as independent, that
the warrant requirement with the particularity and probable
cause that you have addressed was simply going to be a
protector for the police officer against subsequent tort
actions for violations. If he got a warrant, he couldn't be
sued in tort because he had satisfied these requirements. And
that the initial standard is essentially a free-standing
definition of what is and is not reasonable.
We went away from that and defined reasonableness in terms
exclusively of probable cause and particularity, most in the
1950s, 1960s, and 1970s through the Warren Court, but in the
last 15 years or so, the Court, the Supreme Court and most of
the other courts, have gone back towards kind of a divergent
view of those two.
If we really believed that particularity was an absolute
requirement for all searches and seizures, then, for example,
this Congress could not have approved roving wiretaps in the
1980s and the courts would have rejected them. They have not
because they understand that the two are not necessarily--
Senator Durbin. I want to let Professor Cole also respond,
but I think that you are too far off in the weeds here. The
question is whether or not under the PATRIOT Act our government
should be given authority over our liberties and freedom and
privacy where they cannot clearly demonstrate it is necessary
for the security of this country, for example, those sections
of the PATRIOT Act that have not been used and those that loom
over us, and the administration is saying, not only do we want
those, we want more. We want more of your liberty. We want more
of your freedom.
And I assume the premise that I hear from many is, in the
name of security, give it up. Professor Cole, what is your
thought?
Mr. Cole. This is a hard question. My view is that there is
a balancing act that has to be struck here, that it is a
difficult balance, that most rights in the Constitution are not
absolute but do envision that for compelling State interests,
it is justified to infringe upon them. But--so I start with the
proposition that it is a balance and there are trade-offs to be
made.
But then I go to looking at our history, and what you see
if you look at our history is that in every period of crisis,
we have overreacted. In every period of crisis, we have given
the government too much power, given it too broad a scope to go
after people in the name of facilitating investigation, as
Senator Hatch suggested with the question to Mr. Boyd, and
facilitated investigation to make it a crime to speak out
against the war during World War I. It facilitated
investigation to make it a crime to advocate communism during
the Cold War.
But in each of those historical periods, we have learned
that those kinds of responses are a mistake and we regret them
after the fact. Therefore, it seems to me, we ought to put a
thumb on the scale, and a pretty strong thumb on the scale of
liberty and require precisely the showing that you are
suggesting, that is that there is a demonstrated need for this
particular measure in order to respond to the problem.
Third, it seems to me that in striking the balance between
liberty and security, we ought to do so in ways that equally
affect all of us. We ought not take the easy way out and strike
the balances in a way that impose burdens and obligations on
others that we would not bear ourselves. And I think,
unfortunately, in the wake of 9/11, we have taken that easy
route out, particularly by targeting foreign nationals, and I
think that is problematic.
And then the fourth point is that I think there is a--this
is not often stated, but I think there is a relationship
between liberty and security which is that when we sacrifice
basic liberties, we may make ourselves more insecure. If you
look at a world opinion about the United States today and
compare it to September 12, 2001, September 12, 2001, we had
the world's sympathy. We had the world's sympathy. Le Monde's
headline, ``We Are All Americans,'' right?
Today, there is a higher degree of anti-Americanism around
the world than ever before in the history of this country. That
is the greatest threat to our insecurity--to our security over
time. That is what makes it hard for us to find the terrorists.
That is what makes it easy for terrorists to recruit people to
our side.
And if you look at what is the basis for that rising tide
of anti-Americanism, it is perceived hypocrisy on the part of
the United States in sacrificing liberties that we insisted
other countries must abide by, and asserting powers to lock
people up without any showing that they are, in fact,
dangerous, without any hearing, without any trial, and imposing
on other people's nationals burdens and obligations that we
would not bear ourselves.
So I think it behooves us from a security standpoint to put
a thumb on the side of liberty as well as from a liberty
standpoint.
Senator Durbin. Thank you. I am way over my time and I
thank you for your forbearance, Mr. Chairman. I would like to
ask, last fall, you suggested and said that you would schedule
a hearing on enemy combatants, and I hope that in light of this
discussion, what has happened with the Iraqi prisoners, I hope
that we can do that. I really think that is an important thing
for us to talk about, the standards for detention and
imprisonment that we are abusing in Guantanamo and other
places, and I hope this Committee will do that. Thank you, Mr.
Chairman.
Chairman Hatch. That is a fair comment. I am headed down to
Guantanamo in just a short while and I am going to go look that
situation over and we will certainly--I think we probably will
do exactly that.
I want to thank both of you for being here. I think you
both added a lot to this hearing and I think you both have
agreed that we need to be safe, we need to be secure, but we
need to be free, and we have got to balance those great goals,
and the question is, how do you do it?
Now, one of the most amazing things to me is that this is
now the fifth hearing on the PATRIOT Act that I have conducted
and I have yet to see one evidence of abuse of the Act. Now, I
hear a lot of theory and I hear a lot of legal theory from the
left to the right, but the Act has worked particularly well. As
everybody knows, I was against sunsetting it.
Now, there are a number of proposals floating around
Congress dealing with various provisions of the PATRIOT Act.
One of the reasons I have been holding this series of hearings
and of terrorism-related hearings is to hear complaints or
concerns about the PATRIOT Act, to see if changes are
necessary. Proponents of the SAFE Act argue that additional
provisions of the PATRIOT Act should sunset so that the
Congress can provide oversight.
Well, I have got news for them. The Senate Judiciary
Committee always has the authority to hold oversight hearings
over the Department of Justice regardless of whether various
provisions in the criminal laws of this country are subject to
sunsets or expiration dates. We have the right to do that no
matter what and we are going to.
For example, after the recess, we will again have a hearing
on the material support clause of the PATRIOT Act which does
not sunset. Additionally, I am wary of adding sunsets to a host
of new provisions.
As many of you know, the Senate has been the site of
unprecedented filibusters this Congress. This has allowed a
minority of Senators to thwart the will of the majority. We
have had obstruction like I have never seen in my 28 years in
the Senate over the last couple of years. Almost every bill
that has any question by the other side is going to be
filibustered and is going to have to have 60 votes in the
Senate. It used to be you would have maybe one, two filibusters
a year and it was always on some profound, very, very important
issue where there really was tremendous division. Now, it is on
everything.
So a minority of Senators can thwart the will of the
minority, and should a minority of Senators decide that they
don't want any PATRIOT Act provisions reauthorized, that
minority could then filibuster and cause these provisions to
lapse despite the will of the majority.
So naturally, I haven't been very enthusiastic about the
sunset clause, but I lost in that matter, primarily because the
left and the right getting together, and maybe that is for the
best. I don't know.
But I will tell you this. If we don't reauthorize the
PATRIOT Act and a number of these provisions, I think this
country is going to be really in peril.
I have read your article on the SAFE Act and you make a lot
of powerful points there. And Larry, I think they are
worthwhile reading, as you have done. I also know my colleague
from Idaho, what a fine man he is and how patriotic he is and
how very much he yearns and gives every aspect of his being to
try to do what is right here. And so I interpret the SAFE Act
to be a great attempt at trying to do what is right here, and
there are differences on the PATRIOT Act.
I happen to differ on the SAFE Act. I can't imagine why
anybody wouldn't get rid of roving wiretaps in this modern age.
I just can't imagine it, especially since they have been used
for 20 years in other forms of law, which brought the PATRIOT
Act finally up to speed with regard to domestic terrorism. You
can go down each one of these provisions that are being
criticized and, I think, show the validity of them and the
necessity of them.
And I agree with Professor Cole. They could be misused,
just like all criminal laws can be misused by an improper and
obnoxious set of law enforcement officials who don't abide by
the laws themselves, yes. That is why we have oversight. Yes,
they can be misused, but that is true of any criminal law, or
virtually any criminal law. I guess I had better not be that
broad because I can think of some things that might not be able
to be abused, they are so insignificant.
At this time, I would like to submit into the record the
written testimony of Professor Robert Chesney from the Wake
Forest Law School, who was unable to appear before us today.
We are going to leave the record open for one week for any
written questions by Senators on these matters.
I am also going to put into the record a May 5 letter from
the Department of Justice to me as Chairman and it is an
interesting letter from William E. Moschella, the Assistant
Attorney General, and we will put that in the record, as well.
In the meantime, I have kept the door open for both of you,
as experts in the field, to write to us and help us know how to
do this better, because we are going to reauthorize this bill,
and personally, I would like to reauthorize all those sections
that you, Mr. Cole, think should not be, and some of which you
might have questions about, Mr. Rosenzweig, but I can be
convinced. I can be persuaded with good legal reasoning.
So I am opening the door for you to persuade me. If nothing
else, give us your suggestions on how we make this better, how
we resolve some of these conflicts that you think are
constitutional conflicts that are currently unresolvable.
Believe it or not, we really want to do what is right.
The one thing I do want to do is I want to make sure that
with the protection of the freedoms of this country, we do the
ultimate that we can to protect the safety of the people in
this country, because that safety was not protected very well
before the PATRIOT Act. It is now being protected as well as we
can with the PATRIOT Act, and that is not to say we can't
provide greater protections through a renewal of the PATRIOT
Act by adding some sections that might be even better than what
we have.
But again, I will come back to my point. I have had five
hearings and I have yet to have one substantive showing of an
abuse--
Senator Craig. Mr. Chairman, I totally agree with you.
Chairman Hatch. That is the thing that amazes me.
Senator Craig. We are being prospective.
Chairman Hatch. No, I understand.
Senator Craig. We have got quality people at the Justice
Department. You and I both know the integrity of our Attorney
General, and if he ever sensed there was going to be abuse
under his administration, he would pull it back.
Chairman Hatch. Yes, he would.
Senator Craig. The SAFE Act is prospective, and I think
that is a very important part of it. I would fear that we would
act after the fact, after we had destroyed somebody's
reputation because of an abuse--
Chairman Hatch. Well, I--
Senator Craig. --and that is where we come from here.
Chairman Hatch. And I think that is where you come from and
I admire you for it and respect you for it, but I also fear
that if we do away with some of these provisions that the SAFE
Act would do away with, that we are exposing American citizens
to unnecessary and undue exposure to terrorism, and that is why
the PATRIOT Act was enacted to begin with.
And I think before we change those provisions, somebody
ought to show me where those provisions have not operated
properly, where those provisions have been abused, where those
provisions will not do for us what 310 criminals indicted and
179 of them convicted has done for us.
You know, I may be considered a hard-nose on crime, but I
will tell you, I want to see some real substantive reasons.
We had a hearing out in Utah. It was amazing to me. We
allowed the other side to come in and people from the Eagle
Forum and from others came in. I mean, there were a lot of
generalities, a lot of generalities. There was not one
substantive thing said as to what was wrong with the PATRIOT
Act, or what really has been done wrong with the PATRIOT Act,
not one thing. And yet the media played it like they were all
there really giving us the business on the PATRIOT Act.
Well, I think you have got to have some substance behind it
and not just fears that law enforcement might not live up to
law enforcement's obligations. Yes, we have got to make sure
law enforcement does, but we ought to have some substantive
criticism before we take away provisions that may save American
citizens from another 9/11. I think that is just a given.
But then again, there are 535 members here and maybe a
majority will not agree with me, and if that is so, I can live
with that. What I can't live with is another 9/11. What I can't
live with is not doing everything in our power to protect the
people of this country. I think the PATRIOT Act does that. I
think most people believe that because they have seen it do it,
and here is the testimony here today, pretty strong testimony
that it has been doing it for us.
Before we change it, and I just cite roving wiretaps as an
illustration. In this day of cell phones, Blackberries, you
name it, it is nuts to go with what was the law before,
basically having to go to the FISA court to get a warrant every
time against the phone and not against the terrorist and have
to get one in every jurisdiction where the phone shows up. I
mean, that is ridiculous, and yet that is what the state of the
law was with regard to terrorism beforehand and--
Senator Craig. Mr. Chairman--
Chairman Hatch. --how we can combat terrorists.
Senator Craig. I am not here to debate you.
Chairman Hatch. I know.
Senator Craig. It does not eliminate roving wiretaps. It
creates greater specificity. You and I started this debate and
worked together some years ago when we saw the technologies
changing and the hard wire moving to digital and all of us
understand that. But I do believe you are not erring when you
are asking for some degree of specificity instead of just a
general approach.
Chairman Hatch. Well, they do have a degree of specificity.
That is the point that I am trying to make.
Senator Craig. We will have ample time to debate this, but
the idea of suggesting that we have eliminated it, I don't
believe is a fair analysis.
Chairman Hatch. Let me be more clear on that, then. It
prevents the government--the SAFE Act would prevent the
government from obtaining a roving wiretap, as I understand it,
unless the government can specify the suspect's name, and
currently the government can obtain an order to intercept the
communications of a suspect even when the identity of the
suspect is not known. All they have to do is provide a
sufficient description of the subject. And this would make it
harder to get roving wiretaps in terrorism cases than in
narcotics investigations, where roving wiretaps were available
prior to the USA PATRIOT Act. I don't think anybody can deny
that.
Senator Craig. And I support that. Mr. Chairman--
Chairman Hatch. No, that is not what it says.
Senator Craig. --there is a difference between a roving
wiretap and a John Doe wiretap. That is what we eliminate.
Chairman Hatch. Okay.
Senator Craig. Thank you.
Chairman Hatch. Well, we are probably going to have a
hearing on it and see, but I don't agree with that. And
frankly, I think it is a dangerous thing. But be that as it
may, Senator Craig, I know you are sincere and I know you may
prevail on it and that may be the case. I don't know. I just
hope not. It will be a worthy debate and I just hope not
because I am concerned.
I am concerned that we should do everything we possibly can
to protect our people while at the same time protecting civil
liberties, and I think the PATRIOT Act, even with some of the
defects that have been mentioned, does that.
With that, we will recess until further notice. I want to
thank you two again for being here.
[Whereupon, at 12:34 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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