[Senate Hearing 108-918]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 108-918



                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION


                              MAY 5, 2004


                          Serial No. J-108-72


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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




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


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



                         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 

                       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.

                        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 
    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 
    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 
    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 
    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.


    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 
    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 
    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 
    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 
    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.


    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.

                   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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    I am not aware of any referral from the Department of 
Defense to the Justice Department or the FBI relating to these 
    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 
    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 
    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.
    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 
    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 
    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 
    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?

                       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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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?


    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 
    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 

                        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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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.
    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 
    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 
    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.
    Senator Craig. --``Representatives or Senators''--
    Chairman Hatch. I was wondering about that.
    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 
    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 
    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 
    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 
    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?
    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 
    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 
    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 
    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 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 
    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 
    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 
    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