<DOC>
[109 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:21818.wais]
S. Hrg. 109-49
A REVIEW OF THE MATERIAL SUPPORT TO TERRORISM PROHIBITION IMPROVEMENTS
ACT
=======================================================================
HEARING
before the
SUBCOMMITTEE ON TERRORISM, TECHNOLOGY
AND HOMELAND SECURITY
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
APRIL 20, 2005
__________
Serial No. J-109-14
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa 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
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
David Brog, Staff Director
Michael O'Neill, Chief Counsel
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
------
Subcommittee on Terrorism, Technology and Homeland Security
JON KYL, Arizona, Chairman
ORRIN G. HATCH, Utah DIANNE FEINSTEIN, California
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JOHN CORNYN, Texas JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama RUSSELL D. FEINGOLD, Wisconsin
LINDSEY O. GRAHAM, South Carolina RICHARD J. DURBIN, Illinois
Stephen Higgins, Majority Chief Counsel
Steven Cash, Democratic Chief Counsel
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Cornyn, Hon. John, a U.S. Senator from the State of Texas,
prepared statement............................................. 28
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 16
prepared statement........................................... 30
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona.......... 1
WITNESSES
McCarthy, Andrew C., Senior Fellow, Foundation for the Defense of
Democracies, Washington, D.C................................... 6
Meron, Daniel, Principal Deputy Assistant Attorney General, Civil
Division, Department of Justice, Washington, D.C............... 5
Sabin, Barry, Chief, Counterterrorism Section, Criminal Division,
Department of Justice, Washington, D.C......................... 2
SUBMISSIONS FOR THE RECORD
Cole, David, Professor, Georgetown University Law Center,
Washington, D.C., prepared statement........................... 19
McCarthy, Andrew C., Senior Fellow, Foundation for the Defense of
Democracies, Washington, D.C., prepared statement.............. 31
Sabin, Barry, Chief, Counterterrorism Section, Criminal Division,
Department of Justice, Washington, D.C. and Meron, Daniel,
Principal Deputy Assistant Attorney General, Civil Division,
Department of Justice, Washington, D.C., joint prepared
statement...................................................... 45
A REVIEW OF THE MATERIAL SUPPORT TO TERRORISM PROHIBITION IMPROVEMENTS
ACT
----------
WEDNESDAY, APRIL 20, 2005
United States Senate,
Subcommittee on Terrorism, Technology and Homeland
Security, of the Committee on the Judiciary,
Washington, D.C.
The Subcommittee met, pursuant to notice, at 2:28 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Jon Kyl,
Chairman of the Subcommittee, presiding.
Present: Senators Kyl and Feingold.
OPENING STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE
STATE OF ARIZONA
Chairman Kyl. Good afternoon. This hearing of the Judiciary
Subcommittee on Terrorism, Technology and Homeland Security
will come to order. We are going to get started a couple of
minutes early because I think the reality is we are not likely
to get very many of the other Committee members here this
afternoon. There is a bankruptcy bill signing ceremony down at
the White House and at least one other conflict of which I am
aware. So I don't think it would do as much good to wait for
other members to attend the hearing.
I do appreciate all of the witnesses being here. Because
there was one witness that could not attend and some of the
members won't be here, we will leave the record open for
additional statements or for questions to be submitted to the
witnesses.
This hearing this afternoon is going to focus on Senate
bill 873, which is the Material Support to Terrorism
Prohibition Improvements Act of 2005, a bill which I recently
introduced with Senators Cornyn, Coburn and Sessions. With this
hearing today, I hope that we can give this legislation a
public airing and prepare for marking the bill up in the
Committee.
I am pleased to introduce the witnesses who are going to
testify today. Barry Sabin is the Chief of the Counterterrorism
Section of the Justice Department's Criminal Division. He
previously served nearly a dozen years in the U.S. Attorney's
office in Miami, Florida, where he held the positions of Chief
of the Criminal Division, Chief of the Major Prosecutions and
Violent Crime Section and Deputy Chief of the Economics Crime
Section. His most recent position in that office was First
Assistant United States Attorney.
Also with us today is Daniel Meron. He is the Principal
Deputy Assistant Attorney General of the Civil Division of the
Department of Justice. Mr. Meron brings a wealth of experience
to the legal and constitutional issues presented by the
legislation we are reviewing today.
Finally, I am pleased to introduce Mr. Andrew McCarthy, who
is a Senior Fellow at the Foundation for the Defense of
Democracies. Mr. McCarthy is a former Federal prosecutor who
led the prosecution of the case of Omar Abdel Rahman, the so-
called blink sheik, in connection with the 1993 World Trade
Center bombing. He has worked on a large number of other
counterterrorism prosecutions as well.
I thank all of you for being here today and would suggest
that if you want to submit a statement in full, we will accept
that. If you would like to summarize that statement, that would
be fine. It may be that I am the only one asking oral
questions, but as I said, if there are members of the Committee
that have other questions, if you would be so kind, we could
submit those to you and perhaps you could get answers to us for
the record.
So with that, let me start, Mr. Sabin, with you. Why don't
I simply ask each of you to make your presentations and then we
will have a little questioning session after that? Thank you.
STATEMENT OF BARRY SABIN, CHIEF, COUNTERTERRORISM SECTION,
CRIMINAL DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Mr. Sabin. Mr. Chairman, thank you for the opportunity to
testify at this important hearing. I will focus on our use of
the material support statutes, 18 U.S.C. Sections 2339A and
2339B, which are at the heart of the Justice Department's
prosecutive efforts.
The material support statutes, as enhanced and clarified by
the USA PATRIOT Act in 2001 and the Intelligence Reform and
Terrorism Prevention Act just a few months ago, are critical
features of the law enforcement approach to counterterrorism.
These statutes recognize that there are important components of
the terrorist infrastructure that stop short of actual attacks.
We know from experience that terrorists need funding and
logistical support to operate. They need to raise funds, open
and use bank accounts to transfer money, and to communicate by
phone and the Internet. They need travel documents. They need
to train and recruit new operatives and procure equipment for
their attacks.
Thanks to Congress, the material support laws contain the
inchoate offenses of attempting conspiracy which allow law
enforcement the legal basis to intervene at the very early
stages of terrorist planning several steps removed from the
execution of particular attacks. This capability is crucial to
the prosecution of terrorist supporters.
A number of victories in recent months illustrate these
powerful law enforcement tools and how they operate in
practice. On March 10, 2005, after a five-week trial, a jury in
Brooklyn, New York, convicted two Yemeni citizens of, among
other charges, conspiring to provide material support to Al
Qaeda and Hamas pursuant to 18 U.S.C. Section 2339B.
This case clearly demonstrates two important principles.
First, United States prosecutors and investigators, like our
colleagues in the intelligence community and the military, must
rely upon our international partners to be successful. The
defendants could not have been brought to justice without the
assistance of our German colleagues, who worked alongside the
FBI in the sting operation and made the arrest that ultimately
culminated in the extradition of the defendants to the United
States from Germany. German officials testified about their
actions in Federal court in Brooklyn.
Second, successful indictments and prosecutions often lead
to further successes in combatting terror. We are able to
leverage the intelligence collected from cooperators in our
criminal cases to discover and track down new leads and
evidence. In the Al-Moayad trial, prosecutors presented the
testimony of Yaya Goba, one of the convicted defendants in the
Lackawanna case; namely, successful prosecutions beget more
prosecutions.
On February 10, 2005, a Manhattan jury in United States v.
Sattar found all defendants guilty on all counts, which also
involved material support charges. In February of this year,
prosecutors in Detroit obtained a guilty plea from a Hizballah
financier. The defendant, whose brother is the organization's
chief of military security in southern Lebanon, admitted that
he helped others raise money for Hizballah. Last year, we
obtained a guilty plea to violations of both Sections 2339A and
B, among other charges, from a Pakistani American involved in
procurement, training and recruitment of a foreign terrorist
organization.
The operation of the material support statutes is also
illustrated by a number of pending prosecutions. Last week, the
Justice Department announced the unsealing of an indictment
that made important use of Section 2339A to charge three
individuals for their alleged participation in terrorist plots
to attack the financial sectors in New York, New Jersey and the
District of Columbia.
Meanwhile, prosecutors in Miami superseded another
indictment charging a Section 2339A violation adding Kihah
Jayyoussi as a defendant. According to the superseding
indictment, Jayyoussi and two co-defendants conspired to fund
and support violent jihad abroad.
Another Section 2339 case involves Babar Ahmad and Azzam
Publications charged in Connecticut in October of 2004. Ahmad,
a resident of the United Kingdom, allegedly operated and
directed Azzam Publications and its family of Internet websites
to recruit and assist the Chechen Mujahadeen and the Taliban,
and to raise funds for violent jihad abroad.
In Florida, the trial of four of the defendants in the Sami
Al-Arian case is scheduled to begin next month on May 16. In a
53-count indictment, Sami Al-Arian and eight other defendants,
including Ramadan Shalla, the acknowledged worldwide leader of
the Palestinian Islamic jihad, have been charged with using
facilities in the United States, including the University of
South Florida, as a North American base for the Palestinian
Islamic jihad.
In August of 2004, a Chicago grand jury indicted three
defendants for participating in a 15-year racketeering
conspiracy in the United States and abroad to illegally finance
Hamas's activities in Israel, the West Bank and Gaza Strip,
including providing money for the purchase of weapons and the
inclusion of material support charges.
These cases, plus other matters that have already resulted
in convictions, demonstrate the manner in which we have come to
rely upon the material support statutes. Looking to the future,
we are confident that the amendments to the material support
statutes passed by Congress and signed by the President in
December will significantly enhance the capabilities of
prosecutors to eradicate terrorist activity at every stage.
Significantly, the definition of material support or
resources was expanded to encompass all property, whether
tangible or intangible, and all services, except for medicine
and religious materials. The amendments also clarify the
meaning of the terms ``personnel,'' ``training'' and ``expert
advice or assistance,'' as used in the definition of material
support or resources.
Two other changes to the material support statutes are also
significant. First, the recent amendments expand the
jurisdictional basis for material support charges. Second, the
amendments also clarify the knowledge requirement of Section
2339B. That section now expressly says that the defendant must
either know that the organization is a designated foreign
terrorist organization or that it engages in certain terrorist
conduct.
The Intelligence Reform Act also created a new material
support offense, Title 18 United States Code, Section 2339D,
that explicitly criminalizes the receipt of military-type
training from a foreign terrorist organization.
The amendments to the material support statutes contained
in the Intelligence Reform and Prevention Act of 2004 are
currently scheduled to sunset at the end of 2006. These
amendments are critical to maintaining the efficacy of the
material support statutes as a potent prosecutorial tool in
combatting terrorism. The Department therefore supports making
these revisions to the material support statutes permanent, and
we commend you for introducing the Material Support to
Terrorism Prohibition Improvements Act, which would do just
that.
The proposed legislation also contains another important
provision which the Department strongly supports. Under current
law, those aliens who have received military-type training from
or on behalf of a terrorist organization may be deported from
this country. Such aliens, however, are not inadmissible. This
anomaly in the law does not make any sense and the proposed
legislation would fix this problem by rendering inadmissible
those aliens who have received military-type training from or
on behalf of a terrorist organization. The proposed legislation
also contains other worthwhile provisions, and the Department
looks forward to working with you and other Committee members
on this important piece of legislation.
The changes recently enacted in the Intelligence Reform Act
have built upon and enhanced the work of prior Congresses.
Together, this legislation has provided law enforcement and
prosecutors with a solid framework within which to pursue the
goal of prevention, disruption and eventual eradication of
terrorism within our borders and beyond.
We as prosecutors in the Justice Department have more work
to do to eliminate this deadly threat, and we urge you in
Congress to continue to build upon and enhance the legal tools
needed to accomplish our mutual goals.
Mr. Chairman, thank you again for inviting us here and
giving us the opportunity to discuss how the material support
statutes are being used in the field to fight terrorism.
Together, we will continue our efforts to defeat those who
would harm this country.
Chairman Kyl. Well, Mr. Sabin, I appreciate that statement
very much. Thank you.
Dan Meron.
STATEMENT OF DANIEL MERON, PRINCIPAL DEPUTY ASSISTANT ATTORNEY
GENERAL, CIVIL DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON,
D.C.
Mr. Meron. Thank you, Mr. Chairman. Thank you very much for
inviting me here today to testify on the subject of the
Material Support Terrorism Prohibition Improvements Act that
you recently introduced.
The material support to terrorism prohibitions that are
codified in 18 U.S.C. Sections 2339A and 2339B are the product
of a strong bipartisan consensus that in order effectively to
fight the war against terrorism, you have to attack terrorism
at its source. These provisions do that by preventing groups
from raising money and obtaining the property, personnel and
expertise necessary to commit their terrorist acts.
As you know, Mr. Chairman, Section 2339B, which prohibits
the provision of material support or resources to designated
foreign terrorist organizations, was signed into law by
President Clinton in 1996, and the constitutionality of this
provision in its original form was vigorously defended by the
Department of Justice under Attorney General Janet Reno.
In 2000, the United States Court of Appeals for the Ninth
Circuit broadly upheld the constitutionality of this provision
against a series of legal challenges. The Ninth Circuit
squarely rejected the claim that the statute impermissibly
imposed guilt by association, and likewise held that the
Constitution did not require proof that the accused had the
specific intent of aiding the terrorist organization's unlawful
purposes.
As the Ninth Circuit explained, this provision prohibits
the act of giving material support, not speech, and there is no
constitutional right to facilitate terrorism. Any incidental
burdens on speech, the Ninth Circuit held, were not necessary
to achieve Congress's purposes. In December of last year, the
en banc court reaffirmed those critical holdings.
In separate decisions in 2000 and 2003, however, the Ninth
Circuit held that the terms ``personnel'' and ``training'' in
the Act's definition of material support or resources, which
were not at the time defined in the Act, were
unconstitutionally vague. Although the Department of Justice
had given those terms narrowing constructions that we believed
addressed any constitutional vagueness problems, those
narrowing constructions were not contained in the statute and
were not legally binding on the Department.
As you know, Mr. Chairman, in the Intelligence Reform and
Terrorism Prevention Act of 2004, Congress directly addressed
the Ninth Circuit's concerns with the potential vagueness of
the provision. Specifically, in Section 6603 of that Act,
Congress provided specific definitions for the terms
``training'' and ``expert advice and assistance.'' Congress
also adopted a proviso that made clear that no individual could
be convicted of providing personnel to a terrorist organization
unless that person knowingly provided one or more individuals,
including himself, to work under the organization's direction
and control.
Congress's action providing these definitions was a
responsible and considered response to the judicial branch's
constitutional rulings and reflects a highly productive
cooperation between the executive and legislative branches on
this matter.
Those amendments had an immediate beneficial effect. In
light of those provisions, last December the en banc Ninth
Circuit Court vacated the injunction that had previously been
in place regarding the terms ``personnel'' and ``training,''
and more recently on April 1 of this year vacated the district
court's injunction regarding ``expert advice and assistance.''
The sufficiency of these definitions are now before the
district court for a fresh look in light of Congress's
amendments, and we are confident in the strength of our
position that these provisions are constitutional.
Unfortunately, as you also know, Senator Kyl, Section 6603
of the 2004 Act is set to sunset at the end of this calendar
year. Allowing those provisions to sunset would, we believe, be
a grave mistake because the language in the Act would then
revert to the language that the Ninth Circuit had held was
unconstitutionally vague. Indeed, even before that point, the
very existence of a sunset provision undermines the beneficial
impact of these definitions on the certainty and clarity of
these legal prohibitions.
For these reasons, the Department of Justice strongly
supports the provision in Senate bill 783 that would make
permanent the amendments contained in Section 6004 of the
Intelligence Reform Act.
Once again, Mr. Chairman, I thank you for inviting me to be
here today and I look forward to answering any questions that
you may have with regard to the constitutional challenges that
have arisen with respect to these provisions.
[The joint prepared statement of Messrs. Sabin and Meron
appears as a submission for the record.]
Chairman Kyl. Thank you, Mr. Meron. That is very helpful.
Mr. McCarthy.
STATEMENT OF ANDREW C. MCCARTHY, SENIOR FELLOW, FOUNDATION FOR
THE DEFENSE OF DEMOCRACIES, WASHINGTON, D.C.
Mr. McCarthy. Thank you, Mr. Chairman. Thank you for
inviting me here this afternoon. It is an honor to testify here
in connection with a matter of such importance to our national
security.
From a time shortly after the World Trade Center was bombed
in February of 1993 through early 1996, I was privileged to
lead the prosecution against Sheik Omar Abdel Rahman and 11
others for conducting against the United States a war of urban
terrorism that included, among other things, the World Trade
Center bombing and a conspiracy to carry out what was called a
day of terror, a plan for simultaneous bombings of New York
City landmarks that was thwarted by the dedicated work of the
FBI and the New York Joint Terrorism Task Force.
I also worked on some of our office's other major terrorism
prosecutions and helped run the command post near Ground Zero
in lower Manhattan in the wake of the 9/11 attacks. So while I
have not been in the trenches for a few years, it is from the
trenches that I come. And it is from that perspective that I
thank this Committee and you, Mr. Chairman, and Congress for
its tradition of strong bipartisan support in ensuring that law
enforcement has the tools it needs to protect our national
security.
It was in that tradition in 1996 that we first received the
desperately needed material support statutes that the Committee
is considering today. And it is in honoring that tradition that
I respectfully and enthusiastically urge the Committee to
support the proposed bill, the Material Support to Terrorism
Prohibition Improvements Act of 2005.
The proposed bill focuses on what are two of the most
critical aspects of our national struggle to defeat the network
of Islamic militants that is waging war against us: first, the
need to beef up the statutory arsenal that enables law
enforcement to stop attacks at an early stage before they
endanger Americans, and, second, the need to recognize that
threat posed by para-military training.
Where terrorism is concerned, the object for law
enforcement and for the rest of Government must always be to
prevent attacks from happening rather than simply bringing
terrorists to justice only after mass murder has occurred. This
is a lesson we have learned gradually and painfully in the
years of terrorist attacks between the World Trade Center
bombing and the 9/11 atrocities eight years later.
Early on, Federal law was just not up to the task of a
mission aimed at anticipatory prevention and disruption rather
than post-incident investigation and prosecution. While the law
severely punished completed acts of terrorism, especially if
the loss of life resulted, it also featured gaps in enforcement
and grossly insufficient penalties, severely challenging law
enforcement's ability to strangle plots in the cradle and cut
off the supply lines on which terror networks thrive.
The 1996 legislation, including the material support
statutes this Subcommittee is again considering today, both
ratcheted up the penalties for terrorism-related crimes and,
perhaps more significantly, gave prosecutors urgently needed
tools designed to root out terrorist plots at an early stage,
shut down funding channels and place a premium on preventing
terrorist acts rather than simply prosecuting them afterwards.
While it is true that the greatest threats we face come
from the front-line operatives who are actually willing to
carry out terrorist attacks, we have learned the hard way that
those terrorists cannot succeed without support networks--
people and entities willing to fund them, to train them, to
provide them with fraudulent documents to facilitate their
travel, and to provide them with other assets that they need to
carry out their savagery.
It is not surprising then that the material support laws
have become the backbone of the Justice Department's prevention
strategy, which I believe is one of the critical reasons why we
have not had a domestic terror attack in the United States
since September 11, 2001.
Some court decisions which cast doubt on the
constitutionality of the statutes threaten to dilute the
effectiveness of material support laws in protecting public
safety. This Congress promptly responded last year with needed
action to cure the alleged defects, particularly clarifying
statutory terms that some courts had found void for vagueness.
That legislation promoted national security and due
process, the former by maintaining material support as a
powerful tool, and the latter by ensuring that we are clear on
exactly what conduct is prohibited. But these improvements were
sunsetted and if they are allowed to lapse, both national
security and due process would be compromised. Sunsets also
create a climate of uncertainty which could hamper current
enforcement.
The proposed bill would make the 2004 improvements
permanent, and for that reason alone I respectfully suggest
that it would merit the Committee's support. But the bill also
has other beneficial features. In my mind, the most important
is a clear-eyed recognition of the dangers posed by para-
military training. This is a much under-appreciated aspect of
the terrorist threat. It runs like a thread through every
attack we have faced. It is the reason basis for fearing
sleeper cells inside our country.
Current expert estimates suggest that as many as 70,000
people may have undergone Training in the Al Qaeda camps. This
training is known to include commando attacks, the use of small
and large firearms, the construction of explosives, techniques
for neutralizing sentries and various other maneuvers necessary
for carrying out bombings, hijackings and other varieties of
attack. The bill addresses this serious problem by proposing to
tighten up our immigration laws and enhancing criminal
penalties to protect the American people from what we know to
be the perils of this threat.
I thank the Committee again for inviting me here. I thank
you, Mr. Chairman, and I thank you and the Congress for taking
the time to consider this important legislation.
[The prepared statement of Mr. McCarthy appears as a
submission for the record.]
Chairman Kyl. Well, thank you, Mr. McCarthy, and I thank
all of you for being supportive of our efforts here to extend
the material support statute. When I ask these questions, if
any of you would like to comment, please feel free to do so,
but I am going to direct a couple of them to specific
individuals simply because you have made reference to certain
items.
One of the points, Mr. McCarthy, you just made is, if I
gather this correctly, that because cases take a while to
develop and prosecute, you could end up with a situation where
not only is there a climate of uncertainty, but you could
actually have a break in the continuity of the applicable
statute during the course of a particular prosecution.
How real are these dangers of lack of certainty? Some
opponents say, well, it is premature; we don't need to extend
these statutes yet, we need to get more experience with them,
and so on. That is kind of the argument that is made here.
Address that argument, if you would, in the context of your
testimony.
Mr. McCarthy. Yes, Senator. When I used to do what these
gentlemen sitting beside me do for a living, two of the things
that you really wanted to have when you indicted a case was
evidentiary certainty--you wanted to make sure that the things
you thought you could prove, you could actually prove--and the
other thing is legal certainty.
In terms of enforcement efforts, the prosecutor wants to
know, in many ways like the defendant wants to know, if the law
at the time of charge, if the law at the time of indictment is
going to be the same law that applies at the time of trial.
Creating a climate of uncertainty around the charging decision,
I think, is something that could seriously hamper enforcement
efforts.
I also think that the comparison that I have seen some make
between the record of what has gone on under the PATRIOT Act,
where we have had three-and-a-half years to take a look at what
happened there without considering the sunset provisions, is
importantly different from the sunset provisions here.
With respect to the PATRIOT Act, the sunset provisions are
about investigative techniques. As a law enforcement person,
you are never comfortable in a situation where you don't know
whether what you are doing today will still be considered legal
a year from now or two years from now. But with investigative
techniques, the problem is somewhat limited.
When you are talking about the substantive law that will
actually apply to people, I think it is critically important
for the Justice Department to know that the laws that it is
making prosecutive decisions on today, the laws that it is
charging people with, the substantive law that is going to
apply to a case is the same at the time of indictment as it
will be at the time that the case has to be tried.
Chairman Kyl. Great point.
Now, Mr. Meron, I think this question is first addressed to
you, but I think in view of the string of examples, Mr. Sabin,
you gave to the Committee, you might want to relate to this as
well.
Two parts, really, to the question, one related to your
comments about the Ninth Circuit decision, in which you have
got an injunction vacated now, the district court still to take
a look, in view of the circuit's opinion, to see whether there
is any further action to be taken. But what would sunset, as
you point out, if we were not to extend the statute are these
definitions which have been very useful in answering the
court's original determination of unconstitutionality by
providing the texture through definitions of what we really
mean by these terms, ``personnel'' and ``training.''
The thought occurs to me, why wouldn't anybody want those
definitions to continue if the court has, A, found them useful
and constitutional; and, B, if you allowed the statute to
sunset, you would be right back into a situation of
unconstitutionality again.
And then part two: isn't it similar with respect to Section
2339B where you have got a particular terminology in the
statute now saying that the activities covered by that should
not be applied or construed so as to abridge the exercise of
First Amendment rights, specifically saying you need to do this
with reference to those constitutional rights? If that is
sunsetted, you wouldn't have that kind of important provision
in the statute now protecting people's individual rights.
So in both of these two cases, it seems to me we have got,
through court ruling and then subsequent action by Congress and
the original language that we put in the statute, important
protections that we want to maintain and that would ironically
be eliminated if the sections were allowed to sunset.
Mr. Meron. Senator Kyl, I couldn't agree more. I think it
is very strange to oppose making these provisions permanent in
light of those judicial decisions. The one thing we know for
sure is that the language that existed before these amendments
had been declared unconstitutional by the court of appeals.
It is from our perspective very strange to have a law right
now where, in the absence of further action by Congress, you
are going to revert automatically to language that the courts
have held to be unconstitutional. It doesn't seem right, it
doesn't seem responsible.
We strongly believe that the language that was added in the
amendments makes the language sufficiently specific and clear.
It is clearly constitutional on its face, and the courts remain
ready to consider any challenge by any particular defendant to
the constitutionality of these provisions as they may or may
not be applied in a particular case. So there are ample
constitutional protections and safeguards.
As you said, the one thing we know for sure is that the
impact of these definitions has been to move in the direction
of making the terms more narrow and more circumscribed. And why
you would object to making those permanent on the mere
possibility that in the future a court might want you to go
even further in that direction is somewhat beyond me.
Chairman Kyl. Mr. Sabin, you identified a series of
important cases in which the material support statute had been
effective for law enforcement in helping to prosecute would-be
terrorists. There are some organizations that argue that they
are broad in their scope. I think of groups like Hamas and
others who perhaps would argue that, well, there are dual
purposes to these organizations and it is very difficult to
differentiate the activities which are sought to be proscribed
this legislation versus those that are humanitarian in purpose,
and so on, and that you are not able to make those distinctions
in the enforcement of the statute. Therefore, I don't know
whether they would argue it is a vagueness issue in a
constitutional sense or simply not a good idea as a matter of
law enforcement to try to attack the problem at its source, as
you have said.
How do you respond to those who use this argument that you
are affecting the good behavior of some of these organizations
with an overly broad attack on support for them?
Mr. Sabin. Congress has clearly and unequivocally spoken to
that point, Mr. Chairman. In designing the regimen of 2339A and
B, the material support statutes, the language of the statute
and congressional intent has indicated that the entire
logistical support network, not only the person that is seeking
to be the bomb-thrower or the operational individual, but the
person who is funding or recruiting or the like, should be
equally responsible.
The idea that you can free up certain resources--because
these material support items are fungible for purposes of
Hamas's humanitarian mission for school or social services, it
frees up those resources which are devoted to its military
wing. Congress has been very clear. The international community
has followed or is in the process of following Congress's
leadership in that regard to say that we will not allow the
purposes of the donors' intent to be a factor in the
application of the material support statutes.
Otherwise, you would have an escape hatch in Section 2339B
which would go directly against congressional intent. The idea
that Congress has set forth a list under 2339B of 40 foreign
terrorist organizations that are radioactive and to provide
that support in whatever form of resources or services should
not be countenanced--it is clear to the public so that the
public can take knowing and transparent actions. It is clear in
terms of how we apply that in the courts of law. And to inject
uncertainty in that, springboarding on the other responses, I
think is directly contrary to the effectiveness of those
statutes and the viability of the material support statutes
going forward.
Chairman Kyl. Has any court ever determined the statute
overly broad based upon that particular argument as far as you
know?
Mr. Sabin. No, not that I am aware of. There is language
out there regarding intent, and the Intelligence Reform Act
clarified that specific intent is not the requirement, which
would feed into that kind of escape hatch argument under 2339B.
But I think the language in the Intelligence Reform Act
specifically recognizes that it is knowing that the foreign
terrorist organization has been listed, or the fact that they
have been engaged in violent activity, rather than that
activity would be used to further the particular goals and that
would not inject a humanitarian argument in that regard.
Chairman Kyl. Right. Those are the two specific knowledge
requirements there, or alternative knowledge requirements.
Mr. Sabin. Yes, sir.
Chairman Kyl. Either Mr. Meron or Mr. Sabin, could you
quantify for the Committee the number of times that the
Department of Justice has prosecuted for support of material
terrorism or the number of convictions that have been obtained?
Mr. Sabin. Yes. My understanding is that there have been 96
material support prosecutions in 21 different districts. More
broadly, relating to terrorist financing, which would include,
for example, the International Emergency Economic Powers Act,
the numbers go to 135 prosecutions and 70 convictions. To the
extent that you require additional details or specificity in
that regard, we would be happy to provide that to the
Committee.
Mr. Meron. Senator Kyl, if I may add one thing to the
answer to the prior question, in fact, on the issue of the
breadth of the coverage of the provision, that is an issue on
which the full Ninth Circuit en banc court unanimously ruled
that there was no constitutional problem, that you did not have
to have any requirement that the person intended to assist the
unlawful purposes of the organization.
They adopted in full an earlier analysis of a panel which
had made the very point that Mr. Sabin had made that goods are
fungible, money is fungible, and that Congress may
constitutionally attack the problem adequately by covering all
contributions.
Chairman Kyl. I appreciate that. Now, I am trying to look
at this from a broad perspective and Mr. McCarthy has already
related to one aspect of this, but let me just ask all of you,
if we fail to extend the provisions that we have been
discussing here today and if we allow this Act to sunset, what
kind of impediments is that going to place in the way of our
investigation and prosecution of support for terrorists?
Mr. Sabin. I think it would have a dramatic effect, along
with other key provisions of the PATRIOT Act, such as the
information-sharing under Sections 203(b) and (d) and the like.
These are critical to the manner not only in which we bring
criminal prosecutions, but the ramifications of how we operate
on a daily basis.
The idea that we have moved from reacting to a particular
incident to a prevention mindset, the ability to work in a task
force approach, the ability to have prosecutors involved
earlier on in the investigatory process, the ability to have
the flexibility to bring criminal and intelligence tools to
bear on a particular matter, are all emanating from the fact
that these and other provisions should not sunset.
Investigators have been relying upon it to work together to
achieve the desired results of prevention. The material support
statutes have been the key to that early detection and
prevention aspect. In case after case, that has been our
mandate and our mission, and I think it would be a significant
deterrent effect to law enforcement and the national security
officials' ability to effectively do what the American public
expects and demands of us and it would have significant and
negative dramatic effects.
Mr. Meron. And, Mr. Senator, what it would mean is within
the entire geographic territory of the Ninth Circuit, which is
a very large territory, as you know, the injunctions would then
come back to life prohibiting enforcement of personnel,
training, expert advice and assistance. So even the core type
of conduct that I think everyone would recognize--training a
terrorist in making a bomb, for example--would be enjoined. The
enforcement of that provision would be enjoined.
Chairman Kyl. One of the questions I have always had is how
we deal with the financing, and especially this method of
financing that has been involved coming from the Middle East in
particular, the so-called hawallas.
Are there any other tools that any of you would deem useful
in efforts to curb the illicit use of this method of
transferring funds?
Mr. Sabin. Section 373 of the PATRIOT Act changed the
intent standard relating to illegal money-transmitting devices.
That has been extraordinarily helpful for us in bringing cases
around the country from Massachusetts to Northern Virginia,
last week in Detroit and elsewhere, the ability to use what is
now codified as Title 18, Section 1960, to address the hawalla
aspects.
I think that some provisions relating to obtaining tax
return information, and talking to our colleagues in the joint
terrorist task force about the ability to obtain expeditiously
and appropriately taxpayer return information, are some areas
which we can improve the ability for investigators to
understand the information and bring terrorist financing cases
to bear. So we can work with the Congress in that regard to get
specific recommended legislative initiatives.
Chairman Kyl. I have always wondered how we deal better
with that particular problem. Let me just say that your answer
prompts me to suggest that if there are ideas that any of you
have or you become aware of that you think would be useful in
the preparation of additional legislation, it is important that
we receive those ideas because, clearly, the terrorist
organizations are very good at adapting to our techniques. And
whatever we are able to do to investigate and prosecute today's
terrorists, tomorrow terrorists are going to figure out a way
around. So as there is adaptation or unique methods of
operating here, it is useful for us to be able to continue to
allow the law to evolve as well.
One of the statements in the written testimony of law
professor David Cole, who couldn't be here today, is--and I
will just quote it; it is on page 6 of his statement. ``Section
3 of the bill would deny entry to any foreign national who is a
member of an undesignated terrorist organization, subject only
to a largely meaningless defense.''
Was it you, Mr. Sabin, that was addressing the asylum and
entry provisions?
Mr. Sabin. Yes.
Chairman Kyl. Is this too broad? He uses the example of a
member of the Israeli army as an example of somebody that might
be denied entry under this particular provision. Do you think
that is true, and if not, why not?
Mr. Sabin. I think the anomaly that exists that individuals
who are here and can be removed from the country can somehow
have the opportunity to enter into the United States is a
disconnect and that we should seek to address it.
In terms of having focused and constitutionally appropriate
language, we are willing to work with the Committee in order to
address that important goal. But the national security
imperative that individuals are able to come across our border
when we know that they have trained in terrorist military-style
training camps, I believe, is an important issue that should be
addressed through our immigration laws.
I think that the proposed legislation as to both designated
and undesignated groups is also an important aspect because the
administrative process to get certain groups that are emerging
and quickly identify them to be labeled in terms of a list
approach takes time.
We can provide some examples to the Committee by which
individuals went to a military-style training camp that we
understood to be, in retrospect, military training, but was not
designated at the time, but ultimately became designated. That
is a gap that should not exist in the law.
So in direct answer, I think it is an important legislative
initiative. We would support clarifying language--I haven't
read Professor Cole's testimony, but to address those concerns,
but to make sure that that gap is closed.
Chairman Kyl. Mr. McCarthy.
Mr. McCarthy. Just to echo what Mr. Sabin said, two things,
and I tried to describe this in more detail in the statement I
submitted to the Committee. The bombers of the World Trade
Center in 1993 trained right here in the United States in 1988
and 1989. They didn't have a designation. They weren't members
of a particular organization. It was an ad hoc group that was
training in the United States.
The same is true of the group that sought to carry out what
I referred to as the day of terror plot. They trained in
western Pennsylvania and in a public park in New Jersey. It is
absolutely essential that we fashion a provision such as what
is fashioned in the proposed bill that captures those sleeper
cells because they are the ones that not only do we need to
figure in a speculative sense are the bigger threat to us. We
know because we have seen it before--it has happened before--
that these are exactly the types of cells that we need to
capture.
The other thing is trial lawyers like to say to juries that
you shouldn't check your common sense at the door when you come
into the courtroom and to the jury box. The escape provision
that Professor Cole refers to as meaningless actually requires
or says that the foreign national can demonstrate by clear and
convincing evidence that he did not know and should not
reasonably have known that the organization was a terrorist
organization.
I frankly just don't see how anyone behaving reasonably
could conceivably think of the army of a foreign national that
is an ally of the United States that we have treaty and trade
relations with and various other relations with could be
confused as a terrorist organization. I just don't think that
is reasonable.
Chairman Kyl. Mr. Meron.
Mr. Meron. Mr. Senator, the provision that Professor Cole
is complaining about is not a provision that your proposed bill
changes. It is the preexisting law, and the only thing which
your bill does which is very important is it eliminates a
disparity between the standards for admissibility and
deportation.
From the perspective of the Civil Division, which is the
entity within the Department of Justice that litigates the
immigration cases, relying exclusively on deportation rather
than inadmissibility is a significant impediment. It takes a
long time to go through the entire deportation proceedings for
someone who is already in this country. There is a bit of a
catch-22, which is that the longer they are able to stay, the
more of a reliance interest the courts deem them to have in the
United States, the more protected rights they are held to have.
So there is really no justification for that kind of disparity.
That is the only thing your bill does.
Another way of putting the point Mr. McCarthy put is there
are conscientious officers within the Department of Homeland
Security who implement the immigration laws. They use common
sense in doing so. There are a array of judicial review
provisions that apply under existing laws that your bill does
nothing to remove.
Chairman Kyl. I just would observe, too, that our
Subcommittee has held hearings on different aspects of this
phenomenon that you have got a new type of entity here. It is
not like the old Red Brigade or some of these other--you almost
had to have a membership card. The would-be terrorists today
frequently aren't signed up with any particular group, and the
groups themselves are very amorphous and it is more of a
brotherhood, one person helping another, not necessarily signed
up as a particular terrorist organization.
While some are in existence and can be put on a list, there
are a lot of other folks that are simply not working within
that construct, which is one reason that we had to adopt the
so-called Moussaoui fix. With Zacarias Moussaoui in the news
these days, I think it is relevant to note that at the time
that the warrant was sought to look into his computers, we
weren't sure we could identify him with a particular terrorist
group. Yet, there was good information that he was engaged in
terrorist training.
So in this whole notion of trying to adapt to the
circumstances of terrorism, a rather new phenomenon here, we
shouldn't be so bound up in the ways of the past and the
definitions in our law that we don't acknowledge this
phenomenon and both write and interpret our laws in a way that
we can be flexible enough to deal with it.
I think I just have a couple of more questions here, but
one of the questions had to do with the penalties under 2339A
and B. The sentence of five years for material support offenses
and a minimum of three years for receiving military-type
training--are these penalties out of the mainstream? Are they
appropriate to the type of offenses, in your view?
Mr. McCarthy. I think, Senator, for the most part they are.
The one exception I would say would be 2339A. It seems to me
that if we know--and this is what a jury finding of conviction
on a count like that would say--if we know that somebody has
knowingly and intentionally contributed to an act of terrorism,
so you don't even have the situation where somebody said, well,
gee, whiz, I thought I was giving to Hizballah's social
security wing--if we have a situation where the bottom line is
we are saying that somebody intentionally contributed to the
furtherance of an actual brutally violent terrorist attack, it
strikes me that it is insufficient to say that five years does
the trick for that.
Chairman Kyl. Back to this other issue, and it is kind of a
broad question, but the whole question of designating terrorist
groups. Some people criticize this process and therefore it is
a basis for criticizing the fruits of that process which are
involved in this legislation.
What is your take on the process for designating the
terrorist groups? Is it adequate?
Mr. Sabin. Courts have specifically found that it is
consistent with due process and there are no constitutional
infirmities. The D.C. Circuit Court specifically held in that
regard.
The Intelligence Reform and Prevention Act modified some of
the time periods for the redesignation, as well as the
phenomenon that we have seen of groups taking on an alias. The
way some targets of our operations have changed the cell phones
that they use, the organizations have changed their names in
order to possibly avoid the foreign terrorist organization
designation list.
So the ability to not unduly burden the Government for
every two years going through that redesignation process, as
well as every time the name changed regarding an alias, is sort
of an inside-baseball, important contribution that is in the
Intelligence Reform Act and we applaud the Congress in that
regard. The challenges have been brought by groups, and
consistently the courts have said it is consistent with due
process.
Chairman Kyl. It kind of goes back to that notion about you
don't check your common sense at the door. When you are dealing
with terrorists, with a group of very clever people who
continually evolve, as I said before, it seems to me that we
have to be nimble as well. This statute combines a recognition
of that with, nevertheless, sound responses to the questions of
constitutional law that have been raised and at least in one
case adjudicated.
It would be a shame to sunset for both the reason that we
have got a good statute here that has been used as much as it
has to very good effect and in view of the consequences of its
sunsetting on our investigative techniques, as well as,
ironically, the notion that some of the protections that have
been built into it would be eradicated were it to be sunsetted.
So it seems to me that you three gentlemen have made a
strong case for continuing this important tool in our war
against the terrorists. It would be my desire to move the
support for continuing the statute in existence forward.
I was just about to end here, Russ. If Senator Feingold
would now like to either make a statement or ask you some
questions, he is certainly able to do that, but I am finished
with my questions.
STATEMENT OF HON. RUSSELL D. FEINGOLD A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman. I am sorry I
didn't get here earlier. A vote is starting right now. I will
just be brief. Thank you so much.
I am glad this hearing is focused on the very important
material support issue. This is one of the provisions of the
USA PATRIOT Act that has actually been struck down as
unconstitutional. So certainly I agree it is worthy of
attention.
However, I am disappointed that this hearing is focused on
the expansion of the material support statute and related laws,
rather than also examining the problems with that statute. As I
noted last fall when the intelligence reform conference passed
the Senate, I am very concerned about the material support
provision contained in that legislation. Of course, the
legislation did take steps to cure the constitutional defects
in the law. It responded to a Federal court that ruled last
year that Section 805 of the PATRIOT Act, criminalizing the
provision of expert advice or assistance to a terrorist
organization, was vague and therefore violated the First
Amendment.
But I am not convinced that these provisions actually cure
the constitutional flaws. Most significantly, the statute still
does not have an adequate intent requirement. Mr. Chairman,
given the continuing constitutional problems with this law, we
should not be eliminating the sunset or increasing the
penalties for material support. We don't know yet how this new,
revised provision will work or what problems might arise
because of this. So this hearing is a first step and I
appreciate that, but I do want to say we have much work to do.
Mr. Chairman, just one question.
Mr. Sabin and Mr. Meron, the material support provision
requires knowledge on the part of the accused that the
organization in question is a designated terrorist organization
or that it has engaged or engages in terrorism. It does not,
however, require any intent to further the terrorist goals of
the organization or to further the commission of unlawful acts.
I understand and appreciate the need to be able to arrest
and prosecute those who intend to do us harm as early as
possible in their planning, but I am concerned that this could
sweep in people who are actually trying to prevent terrorism or
trying to help innocent civilians.
So, first, does the Department of Justice believe that
providing peace-making and conflict resolution advice to a
designated organization is barred by the material support
statute?
Mr. Sabin. With respect to your comment, Senator, the
intent provision, we believe, as articulated in the Ninth
Circuit opinion and as adopted in the Intelligence Reform and
Prevention Act, is the appropriate standard. It provides,
consistent with legislative intent and consistent with the
framework that Congress set up, that we should not only go
after the person who is operational, but the person who is
writing the check, regardless of the humanitarian or military
purposes of that organization.
So once they have been designated, they are radioactive.
And as long as that individual knows that they have been
designated or knows of the violent activities, we should not
have, as I talked about earlier, an escape hatch under Section
2339B so that that donor's intent can somehow prove not
violative of the statute. So I think it would be substantially
hindering our ability to use the backbone of our prosecutorial
efforts to expand that.
Senator Feingold. So the answer is a person is still
potentially included if they are providing peace-making and
conflict resolution advice? That is what I asked. Does the
Department of Justice believe that providing peace-making and
conflict resolution advice to a designated organization is
barred by the material support statute?
Mr. Sabin. It depends. For example, if there was a lawyer
that wanted to provide that kind of assistance, there is now a
provision, as passed in the Intelligence Reform Act, 2339B(j),
that enables the individual to seek clarity for providing that
type of assistance.
Senator Feingold. So there are certain narrow exceptions
that would be allowed?
Mr. Sabin. Correct.
Senator Feingold. Does the Department believe that
humanitarian organizations providing tsunami relief in parts of
Sri Lanka controlled by the Tamil Tigers violated the material
support statute?
Mr. Sabin. It would depend again on the particular
application. If you were working under the direction and
control and you knew that that group was engaged in violent
activities, it could be a violation of the statute. However, if
it was something that is protected under the application of
2339B(j), then it would not be our exercise of prosecutorial
discretion to bring that person into the criminal justice
system. So, again, it is going to depend upon the specific
facts that are involved.
Senator Feingold. Well, I appreciate those answers and they
help me understand it. My understanding of the notion of
vagueness, however, is that a person needs to have some sense
in advance of whether they are violating the law or not.
Otherwise, it is vague, and our continued conversations about
this should be in that spirit, whether these provisions really
do give a person adequate notice that they may be doing
something that they shouldn't be doing.
Mr. Chairman, I know I came in here late. I look forward to
working with you on this issue. Thank you, Mr. Chairman.
Chairman Kyl. Thank you.
Again, I want to thank all of the witnesses. I don't know
how many days we will leave this record open, but if anybody
has questions or if you would like to submit anything else for
the record, you are certainly entitled to do that. I want to
thank you again for your testimony here today. I appreciate it.
[Whereupon, at 3:24 p.m., the Subcommittee was adjourned.]
[Submissions for the record follow.]
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