[Senate Hearing 108-918]
[From the U.S. Government Publishing Office]
S. Hrg. 108-918
A REVIEW OF THE TOOLS TO FIGHT TERRORISM ACT
=======================================================================
HEARING
before the
SUBCOMMITTEE ON TERRORISM, TECHNOLOGY
AND HOMELAND SECURITY
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 13, 2004
__________
Serial No. J-108-94
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas JOHN EDWARDS, North Carolina
Bruce Artim, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
------
Subcommittee on Terrorism, Technology and Homeland Security
JON KYL, Arizona, Chairman
ORRIN G. HATCH, Utah DIANNE FEINSTEIN, California
ARLEN SPECTER, Pennsylvania EDWARD M. KENNEDY, Massachusetts
MIKE DeWINE, Ohio JOSEPH R. BIDEN, Jr., Delaware
JEFF SESSIONS, Alabama HERBERT KOHL, Wisconsin
SAXBY CHAMBLISS, Georgia JOHN EDWARDS, North Carolina
Stephen Higgins, Majority Chief Counsel
David Hantman, Democratic Chief Counsel
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 5
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin, prepared statement.................................. 57
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 4
prepared statement and attachments........................... 59
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
prepared statement............................................. 67
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona.......... 1
prepared statement and attachments........................... 71
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 88
WITNESSES
Bryant, Daniel J., Assistant Attorney General, Office of Legal
Policy, Department of Justice, Washington, D.C., and Barry
Sabin, Chief, Counterterrorism Section, Criminal Division,
Department of Justice, Washington, D.C......................... 6
Turley, Jonathan, Shapiro Professor of Public Interest Law,
George Washington University Law School, Washington, D.C....... 12
QUESTIONS AND ANSWERS
Responses of Daniel Bryant and Barry Sabin to questions submitted
by Senator Leahy............................................... 36
SUBMISSIONS FOR THE RECORD
Bryant, Daniel J., Assistant Attorney General, Office of Legal
Policy, Department of Justice, Washington, D.C., and Barry
Sabin, Chief, Counterterrorism Section, Criminal Division,
Department of Justice, Washington, D.C., joint statement....... 45
Turley, Jonathan, Shapiro Professor of Public Interest Law,
George Washington University Law School, Washington, D.C.,
prepared statement............................................. 91
A REVIEW OF THE TOOLS TO FIGHT TERRORISM ACT
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MONDAY, SEPTEMBER 13, 2004
United States Senate,
Subcommittee on Terrorism, Technology and Homeland
Security, Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 9:34 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Jon Kyl,
Chairman of the Subcommittee, presiding.
Present: Senators Kyl, Sessions, Feinstein, and Cornyn [ex
officio.]
OPENING STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE
STATE OF ARIZONA
Chairman Kyl. This hearing will come to order of the
Committee on the Judiciary's Subcommittee on Terrorism,
Technology and Homeland Security.
Good morning, everyone, and welcome to today's hearing. It
is going to focus on Senate bill 2679, the Tools to Fight
Terrorism Act, which is a bill that I recently introduced with
several other members of this Committee and of the Senate
leadership.
Since the terrorist attacks of September 11, Congressional
committees and executive agencies have conducted extensive
reviews of our Nation's anti-terrorism safety net. We have had
numerous hearings in the House and Senate Judiciary Committees,
the Joint Intelligence Committee inquiry, the 9/11 Commission
hearings and report, and the Justice Department has conducted
extensive evaluations of its own anti-terrorism capabilities.
These hearings have uncovered numerous flaws and gaps in
our anti-terrorism system. We have found, for example, that in
many cases anti-terror investigators still have less authority
to access information than do investigators of other crimes
that, while serious, pale in comparison to the threat posted by
international terrorism. We also have seen that some of the
Federal Code's criminal offenses and penalties are far too
light or too narrow in their scope, in light of the
contemporary terrorist threat.
Yes, despite all of these hearings and inquiries, Congress
has enacted no major anti-terrorism legislation since the
passage of the USA PATRIOT Act almost 3 years ago. To give just
a brief description of the nature of the TFTA--again, the Tools
for Fighting Terrorism Act--and the legislative process behind
it, here are just a few examples of some of the most important
provisions.
Section 102 is identical to a bill introduced in 2002 by
Senator Schumer and me which allows FBI agents to seek warrants
for the surveillance of suspected lone wolf terrorists, such as
alleged 20th hijacker Zacarias Moussaoui. We have acted on that
bill in the Senate and it is pending in the House.
Sections 112 and 113, which are the same as a bill
introduced by Senator Chambliss, will improve information-
sharing among Federal agencies and with State and local
authorities, avoiding the types of barriers between criminal
and intelligence investigators that impeded pre-September 11
searches in the United States for hijackers Khalid Al-Midhar
and Nawaf Alhazmi.
Section 106 is identical to a bill introduced by Senator
Hatch which punishes hoaxes about terrorist crimes or a death
of a U.S. soldier, imposing penalties commensurate with the
disruptions and trauma inflicted by such hoaxes.
Title II is identical to a bill introduced by Senator
Cornyn, who is with us here this morning. It imposes stiff 30-
year mandatory minimum penalties for possession of shoulder-
fired anti-aircraft missiles, atomic and radiological bombs,
and variola virus, which is smallpox--penalties which are
sufficient to deter middlemen who might help terrorists acquire
these weapons.
Title IV is identical to a bill introduced by Senators
Biden and Feinstein which creates a set of criminal offenses
tailored to the challenges of guaranteeing the security of our
Nation's seaports.
TFTA is divided into five titles which consist of all or
part of 11 bills that I said are currently pending either in
the House or in the Senate. Every provision has previously
either been introduced and is pending as a bill in Congress or
addresses a matter that has been explored in a Congressional
Committee hearing.
Collectively, the provisions of TFTA have been the subject
of nine separate hearings before House and Senate committees,
and have the subject of four separate Committee reports. If you
add up, by the way, all of the time that the various bills
included in TFTA have been awaiting enactment since first
introduced, as of today the components of the bill have been
pending for 14 years, 7 months and 9 days. But who is counting?
In any event, with today's hearing, I hope to give this
legislation a final opportunity for review so we can get it to
the Senate floor and get it adopted before Congress recesses
for the year.
I am pleased to introduce the witnesses and, with Senator
Feinstein's concurrence, would invite Mr. Turley to join this
panel. The protocol is we have our Government witnesses on the
first panel and other witnesses second. With only three
witnesses today, all being erudite in the law, I am going to
ask that they all three join us, and then we can get our
questions answered at one time.
Dan Bryant will be our first witness. He is the Assistant
Attorney General for the Office of Legal Policy in the
Department of Justice. He began his legal career at Justice in
1987. In 1995, he became counsel to the House of
Representatives' Judiciary Subcommittee on Crime, and promoted
to majority chief counsel of that Subcommittee in 1999. He was
appointed Assistant Attorney General for the Justice
Department's Office of Legislative Affairs in 2001 and has
served in his current position since 2003.
Barry Sabin is the Chief of the Counterterrorism Section of
the Justice Department's Criminal Division. Mr. Sabin
previously served nearly a dozen years in the U.S. Attorney's
office in Miami, Florida, where he held the positions of Chief
of the Criminal Division, Chief of the Major Prosecutions and
Violent Crime Section, and Deputy Chief of the Economic Crime
Section. His most recent position in that office was First
Assistant U.S. Attorney and he held that position since 2002.
I would like to note that Mr. Sabin's office recently
received some very praise in the report of the September 11th
Commission, and I want to quote it because I think it sets the
stage nicely for what we want to do here today. So this is a
quotation from the September 11th Commission report.
``The Department of Justice also has dramatically increased
its focused efforts to investigate and disrupt terrorist
financing in the United States. The Terrorism and Violent Crime
Section formed a unit to implement an aggressive program of
prosecuting terrorist financing cases. The Terrorist Financing
Unit coordinates and pursues terrorist financing criminal
investigations around the country and provides support and
guidance to U.S. Attorneys' office in terrorist financing
issues. In stark contrast to the dysfunctional relationship
between the FBI and DOJ that plagued them before 9/11, the two
entities now seem to be working cooperatively. The leadership
of the FBI's Terrorism Finance Operation Section praises the
CTS Terrorist Financing Unit''--which is Mr. Sabin's unit--
``for its unwavering support.''
Finally, I am pleased to also introduce Professor Jonathan
Turley, the Shapiro Professor of Public Interest Law at George
Washington University Law School. Professor Turley is a
nationally-recognized expert on constitutional law and national
security policy. In addition to a large number of academic
works in these areas, Professor Turley has served as counsel in
a variety of high-profile national security cases in both
criminal and civil courts, including espionage cases in both
Federal and military courts.
Professor Turley is a frequent witness on constitutional
and national security issues in Congress and has served as a
consultant for such issues for State legislatures. His academic
writings and public appearances have made him, according to a
recent study, one of the top 100 most cited public
intellectuals in the Nation and one of the top two most cited
law professors--a distinction.
As I told Professor Turley this morning, we are really
interested in him grading our bill here, not giving any kind of
a whitewash, but to tell us if there are parts of it he thinks
could stand improvement because, as I said, we do want to move
this bill to the Senate floor as quickly as we can and get it
adopted before we leave here.
As always, I am joined by the ranking Democrat member of
the Subcommittee, Senator Feinstein, from California, who has
been an ardent supporter of anti-terrorism legislation. She and
I had introduced legislation before September 11 that we pushed
hard, and it wasn't until after September 11 that our
colleagues began to notice what we had been trying to do on
this Subcommittee.
I couldn't have a better partner on this Subcommittee in
trying to improve the way that this country deals with the
whole spectrum of terrorism issues than Senator Feinstein and I
am happy to turn the time over to her now.
[The prepared statement of Senator Kyl appears as a
submission for the record.]
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Feinstein. Thank you very much, Mr. Chairman, and
thank you, too, for those comments. I think you know how much I
have enjoyed working with you.
I want to take this opportunity to welcome our witnesses. I
certainly look forward to your remarks.
I would like to use my time very briefly to discuss two
points and kind of put Mr. Bryant a little bit on the hot seat
in my comments, if I might. I have two concerns. The first is
that the Department of Justice may not effectively be using the
tools it already has. I have noticed the tendency of the
Department to rather trumpet arrests and indictments in
terrorism cases, but those announcements don't seem to be
matched by prosecutions. Let me give you a few examples--in
Detroit, with the Detroit cell, defendants Koubriti and
Elmardoudi, who had been convicted on terrorism and fraud
charges, and Ahmed Hannan, who had been convicted of fraud. A
fourth defendant, Farouk Ali-Haimoud, was acquitted. A jury
verdict was overturned, with a finding of prosecutorial
misconduct and failure to provide required discovery to the
defendants.
In Portland, Oregon, Brandon Mayfield--the FBI mistakenly
said his fingerprints matched one found on a plastic bag
connected to the Madrid, Spain, bombing. Two leaders of a
mosque in Albany, New York, were released on bail after a
Federal judge concluded the men were not as dangerous as
prosecutors alleged.
A Saudi student in Boise, Idaho, was acquitted in June on
charges of giving terrorist material support by creating an
Internet network. There was no clear-cut evidence that said he
was a terrorist.
Mr. Moussaoui has continued to tie up the court system in
knots. Mr. Padilla, was arrested in Chicago, then transferred
to southern New York and finally to a military court, arrested
with great fanfare, but it is no longer clear whether any real
plot did exist. So I think it is important that we not always
look to increasing the legislative authorities provided, but
also that we use what we have both properly and appropriately.
My second concern is one of oversight. Since September 11,
I think the Congress has acted expeditiously. Senator Kyl
outlined some of the issues that this Subcommittee has
handled--bioterrorism, the Visa Reform and Border Security Act,
and, of course, the PATRIOT Act. The PATRIOT Act perhaps is the
greatest aid to prosecution that has come up, and I have been
trying to follow it and have had great trouble in doing it, and
I want to express that for the first time publicly.
We know that 16 provisions of the PATRIOT Act sunset in
2005. They are the controversial provisions. Those provisions
require participation by the executive branch--the Attorney
General, the Director of Central Intelligence. I have
repeatedly requested that the Department of Justice undertake a
task that they should have begun without prompting, and that is
carrying out an objective, comprehensive review of the effect
and efficacy of the 16 provisions set to expire next year.
I received a report earlier this year, but it was not at
all responsive to what I had asked. It was more or less a
compendium of success stories. Let me give you one example.
One of the most controversial tools is Section 215, and
last year the Attorney General announced that he had not been
used. In April, my staff received a briefing on that provision
and was promised by representatives from Mr. Moschella's office
that an update of the status would be provided. On Friday, June
18, the Washington Post reported that the FBI had, in fact,
sought to use that very controversial provision.
On my behalf, my staff asked for a classified account of
the issues raised in that story. No response was forthcoming,
and two weeks ago we were notified that no response would be
provided, except that contained within the general quarterly
report.
I voted for the bill. That approach is simply not
acceptable. It doesn't serve the needs of our counterterrorism
efforts and I think it fosters a climate of cynicism and
suspicion. The Attorney General has appropriately been given
new and more powerful authorities to respond to the threats
facing us. These authorities are best used within the context
of appropriate oversight. I have found that very difficult to
achieve. If someone who has supported the Act finds that
difficult to achieve, what are those that didn't support or
really want to see those provisions expire or not be renewed
going to think?
So as time goes on, I have growing concerns because I have
tried to get answers, I have tried to get the kinds of
evaluations of those sections that we need to do our oversight
duties, and they have not up to this point been forthcoming.
Fortunately, we do have time, because I wouldn't estimate
that any hearings here are going to begin before next year. But
I just want to serve notice that I am really very serious about
taking a good, hard look at those 16 sections. Once again, I
would like to say that I am not receiving the material that we
need to provide our legally mandated oversight authority.
Thanks very much, Mr. Chairman.
Chairman Kyl. Thank you, Senator Feinstein.
[The prepared statement of Senator Feinstein appears as a
submission for the record.]
Senator Cornyn, would you like to make any statement?
STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF
TEXAS
Senator Cornyn. Just briefly, Mr. Chairman, thank you for
convening this hearing, and it is good to be here with you and
Senator Feinstein. Even though I am not on the Subcommittee, I
am very much interested in this legislation and in the subject
matter.
As a cosponsor of this bill, the Tools to Fight Terrorism
Act of 2004, of course, I am very interested in what each of
the witnesses has to say about this proposal. But I would note
that I believe I saw this morning, or maybe it was yesterday,
that while basically crime levels are at a 30-year low in this
country, and much of this legislation is directed at punishing
terrorist activities and possession of WMD and other dangerous
potential weapons, we are not obviously when we are talking
about terrorism just concerned about punishing crime or
punishing it after the fact. We are interested in prevention
and preemption.
That is, of course, what bringing down the wall was all
about in the PATRIOT Act, sharing that information. Perhaps the
best evidence that the PATRIOT Act has been successful, as well
as the other efforts that have been undertaken during the last
3 years, is that we have so far been able to disrupt or prevent
any other terrorist acts on our own soil.
Two areas that I am particularly interested in have to do
with the increased penalties for possession and use of
MANPADS--that is surface-to-air shoulder-fired missiles--which
are a potential threat to civil aviation. Obviously, the
consequences of the use and trafficking of those is obvious.
In the same vein, this bill provides increased penalties
for possession of various weapons of mass destruction,
including chemical and biological weapons, things like the
smallpox virus which could be devastating, if used, and dirty
bombs, radiological materials and nuclear materials.
So I appreciate your convening this hearing today and
letting me sit in with you and Senator Feinstein, and look
forward to the testimony.
Chairman Kyl. Thank you, Senator Cornyn.
Perhaps, Dan Bryant, when we are done talking about the
Tools to Fight Terrorism Act, you might, if you are inclined
and you can at this point, address some of the concerns that
Senator Feinstein raised in her opening statement.
Why don't we begin with Hon. Dan Bryant and Barry Sabin,
and then Professor Turley. Ordinarily, we have a five-minute
clock up here. I am not going to use that today. I will assume
that you can keep your remarks roughly within that point of
time. Thank you.
STATEMENT OF DANIEL J. BRYANT, ASSISTANT ATTORNEY GENERAL,
OFFICE OF LEGAL POLICY, DEPARTMENT OF JUSTICE, WASHINGTON,
D.C., AND BARRY SABIN, CHIEF, COUNTERTERRORISM SECTION,
CRIMINAL DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Mr. Bryant. Good morning, Mr. Chairman, Ranking Member
Feinstein and Senator Cornyn. I thank you for the opportunity
to appear before you this morning to discuss S. 2679, the Tools
to Fight Terrorism Act of 2004. Mr. Chairman, I will take your
lead and I will refer to it as the TFTA.
Congress and the administration already have done much to
improve the Government's ability to fight the war on terrorism.
The most notable of these efforts was the enactment of the
PATRIOT Act, which has proven invaluable in our
counterterrorism efforts. There is, however, more to be done.
The TFTA proposes numerous improvements to current law. It
contains significant, effective, constitutionally-sound tools
that would help us prevent, disrupt and prosecute terrorism.
For purposes of today's hearing, my colleague, Barry Sabin, and
I will comment on a handful of the key provisions in the bill,
and I would like to focus now on two of those.
The TFTA contains a number of provisions that fill gaps in
existing law. Some of the most important of these are in Title
II which addresses the private use and possession of four
weapons that could be catastrophic in the hands of terrorists--
Man-Portable Air Defense Systems, or MANPADS; atomic weapons;
radiological disbursal devices, sometimes referred to as dirty
bombs; and, finally, the variola virus which causes smallpox.
MANPADS are portable, lightweight, surface-to-air missile
systems designed to take down an aircraft. Typically, they are
able to be carried and fired by a single individual. They are
small, and thus relatively easy to conceal and smuggle. A
single attack could kill hundreds of persons in the air and
many more on the ground. A MANPADS attack could also cripple
commercial air travel. As such, MANPADS present a serious
threat to civil aviation.
The threats posed by other prohibited items--atomic
weapons, radiological disbursal devices and smallpox--are
obvious. Atomic weapons and dirty bombs could be used by
terrorists to inflict enormous loss of life and damage to
property and the environment. The variola virus is classified
by the Centers for Disease Control as one of the biological
agents posing the greatest potential threat to public health.
There are no legitimate private uses for any of these
weapons. They have the capability to cause widespread harm to
the American people and to disrupt on a large scale the United
States economy. Current penalties for the unlawful possession
of these weapons, however, do not adequately reflect the
serious threat to public safety and national security posed by
their enormous destructive power. A maximum penalty of only 10
years in prison applies to the unlawful possession of MANPADS
and atomic weapons.
Although the use, threatened use or attempted use of
radiological disbursal devices are covered by the weapons of
mass destruction statute, there is no statute that criminalizes
the mere possession of such devices. Similarly, although there
are penalties for prohibited transactions involving nuclear
materials, all of them require proof of certain intent. There
is no statute criminalizing mere possession.
The knowing, unregistered possession of the variola virus
has a maximum penalty of only 5 years in prison and up to a
$250,000 fine. Although the possession of the virus for use as
a weapon is punishable under the biological weapons statute for
any term of years up to life, the U.S. Sentencing Guidelines
provide for a sentence of only 6.5 to 8 years for an offender
who has no prior criminal record.
To provide a much greater deterrent for the possession or
use of these weapons, the TFTA would establish a zero-tolerance
policy toward the unlawful importation, possession or transfer
of these weapons by imposing very tough criminal penalties.
Under the bill, possession of any of these weapons would result
in mandatory imprisonment for 30 years to life. Use, attempts
or conspiracy to use, or possession and threats to use these
weapons would result in mandatory life in prison. Capital
punishment could be imposed if the possession or use of such a
weapon resulted in death.
These penalties are justified by the catastrophic
destruction that could be caused by the use of these weapons.
Although harsh penalties may not deter suicidal terrorists
determined to attack the United States, they may well deter
those middlemen and facilitators, as the Chairman has referred
to, who are essential to the transfer of such weapons. They
also would assist prosecutors and investigators in obtaining
cooperation from those individuals and moving swiftly up the
chain to identify the most dangerous terrorists.
Section 102 of the TFTA would fill another gap in existing
law by amending the Foreign Intelligence Surveillance Act to
permit surveillance of so-called lone wolf terrorists. FISA
currently does not cover unaffiliated individuals or
individuals whose affiliation with a foreign terrorist group is
not known who engage in or are preparing to engage in
international terrorism.
Imagine a situation in which a single person comes to the
United States to make preparations for or even initiate a
terrorist attack. While in the United States, he engages in
suspicious activity, such as purchasing large quantities of
dangerous chemicals, signing up for commercial airplane flight
school with no prior flight experience and no interest in
becoming a commercial pilot, or scouting the security perimeter
of several nuclear power plants.
If FBI authorities became aware of such behavior, they may
wish to conduct an international terrorism investigation by
obtaining a FISA order permitting electronic surveillance of
the suspect. Under current law, FISA would prevent the FBI from
obtaining the order unless they could show that the individual
was affiliated with an international terrorist organization.
But the reality today is that a terrorist who seeks to
attack the United States may be a lone wolf who is not
connected to a foreign terrorist group or someone whose
connection to a foreign terrorist group is unknown or
unknowable. The quarter-century-old FISA law prevents law
enforcement and intelligence authorities from exerting maximum
effort to intercept and obstruct such terrorists.
The TFTA would fix this anomaly. Section 102 would update
FISA by permitting the FBI to apply to the FISA court for a
surveillance or search order if they have probable cause to
suspect that a foreign national in the United States is engaged
or may be preparing to engage in international terrorist
activity, even if they cannot immediately link that person to a
particular foreign state or terrorist group.
Chairman Kyl and Senator Schumer introduced legislation to
fix this problem almost 2 years ago and the Senate passed it
overwhelmingly in May of 2003 by, I think, a 90-8 vote. Given
all we have learned about the terrorist threats we face, it is
critical to enact this common-sense reform.
Mr. Chairman, thank you again for the chance to be with you
and I look forward to responding, and I would be pleased to
address now or after statements made by my other colleagues to
Senator Feinstein's concerns.
Chairman Kyl. Let's move through the comments about this
bill and then we can come back to that, if that is all right.
Thank you very much.
Barry Sabin.
Mr. Sabin. Good morning, Chairman Kyl, Ranking Member
Feinstein, Senator Cornyn. Thank you for the opportunity to
testify at this important hearing.
I wholeheartedly agree with my colleague, Mr. Bryant, that
the Tools to Fight Terrorism Act of 2004, if passed, would fill
a number of holes in our homeland security blanket. For my
opening remarks, I will focus my testimony in the area of
material support for terrorism and terrorist financing because
I believe they are so critical to our daily counterterrorism
efforts.
As the Department's leadership has indicated, a critical
element in our battle against terrorism is to prevent the flow
of money and other material resources to terrorists and
terrorist organizations. From the perspective of a career
Federal prosecutor, I fully endorse this approach.
But as the anniversary on Saturday reminded us all, we must
continue to be vigilant. In recent months, we have seen the
seizures of large quantities of chemicals used to make bombs
near London's Heathrow Airport, the bombings in Madrid, a car
bombing in Riyadh that killed 5 and wounded 147 others, the
raising of the threat level pursuant to credible threats on
some of our financial institutions, and just last week, and for
the third year in a row preceding the anniversary of 9/11,
Osama bin Laden's second in command Imam Al Zawahiri was seen
in a video trying to rally al Qaeda supporters. These
developments separately and collectively indicate that the
United States and its allies remain a target of deadly
worldwide attacks by al Qaeda and others whose view of the
world involves the indiscriminate killing of innocent people.
While terrorists continue to plot, we continue to work
harder to thwart them. By working together, the various
components of the U.S. Government, in concert with our
international allies, continue to aggressively pursue
terrorists. The Congress and the American people expect nothing
less.
Our concerted efforts and reliance on the rule of law and
adherence to constitutionally-protected civil liberties have
led to the disruption or demise of terrorist cells in locations
across the country. We continue to dismantle the terrorists'
financial networks, including those that prey on charities,
through, in part, an application of standard white-collar
investigative techniques.
To be sure, criminal prosecution remains a vital component
of the war on terrorism, and we at Justice have used our law
enforcement powers, when appropriate, to prevent terrorist
acts. Much of our success is due to the wide array of
legislative tools provided by the Congress, particularly the
material support statutes.
The watershed legislative development of terrorist
financing enforcement occurred in 1996, when Congress passed
the Anti-Terrorism and Effective Death Penalty Act. This
statute created the Section 2339B offense and the concept of
foreign terrorist organizations, or FTOs. The crime of
providing material support to terrorists and terrorist
organizations, including Title 18 United States Code Section
2339A and B, criminalized conduct several steps removed from
actual terrorist attacks.
These crimes permit us to redress the problem of the
terrorist financier, someone whose role in violent plots is not
obviously lethal, but involves the act of logistical and
financial facilitation. These offenses, along with the criminal
penalty provisions of the International Emergency Economic
Powers Act, or IEEPA, which we frequently use in material
support prosecutions, contain the offenses of attempt and
conspiracy, which adds to our ability to take down terrorist
plots at a very early stage of planning.
The material support statutes and the improvements provided
for by the USA PATRIOT Act, including increased penalties, have
allowed the U.S. Government to successfully prosecute numerous
terrorists and their cohorts. Prosecutions generate more leads
and intelligence. Aggressive law enforcement begets more
enforcement and further disruption of terrorist support
mechanisms.
For example, we can credit the material support statutes as
the basis for a grand jury in Dallas indicting the Holy Land
Foundation and its officers for conspiring to provide material
support to Hamas over the last decade, and as a key basis for a
grand jury in Chicago indicting three Hamas operatives this
past month; with enabling the pending trial of accused U.S.-
based terrorist financier Sami Al-Arian, who allegedly used his
University of South Florida office and several non-profit
entities he established to support the Palestinian Islamic
jihad; with providing for the guilty plea and cooperation of al
Qaeda associate and military procurer Mohammed Junaid Babar in
New York City; with the plea and cooperation of James Ujaama,
who participated in setting up a violent training camp in rural
Oregon; with the pending extradition requests of Abu Hamza El-
Masri and Babar Ahmed, who have been charged with terrorist
support offenses in New York and Connecticut, respectively, and
are currently in British custody; and the successful
prosecutions of individuals in Lackawanna and Portland and
right here in Northern Virginia of several persons training in
the United States to engage in violent jihad activities abroad.
But the TFTA improves this critical tool by clarifying
several aspects of the material support statutes. As this
Committee well knows, there have been a few court decisions
finding key terms in the definitions of material support or
resources to be unconstitutionally vague. TFTA amends the
definition of ``personnel,'' ``training'' and ``expert advice
or assistance,'' the terms deemed vague by these courts, in a
way that addresses the concerns about vagueness, and at the
same time maintains the statute's effectiveness. There is a
fuller discussion of this in our written statement, but let me
just cite one quick improvement.
Section 114 would clarify the meaning of the term
``personnel'' to address a decision by the United States Court
of Appeals for the Ninth Circuit finding the term
unconstitutionally vague. The court opined that the ambit of
the term was vague because ``personnel'' could be construed to
include unequivocally pure speech and advocacy protected by the
First Amendment.
Section 114 of TFTA would address the court's concern by
providing that a person may be prosecuted under Section 2339B
for providing personnel to a designated foreign terrorist
organization only if that person provided one, including
oneself, or more individuals to work under the organization's
direction or control, or to organize, manage, supervise or
otherwise direct the operation of that organization.
It is critical that the United States stem the flow of
recruits to terrorist training camps. A danger is posed to the
vital foreign policy interests and national security of the
United States whenever a person knowingly receives military-
type training from a designated terrorist organization or
persons acting on its behalf.
But the current prohibition on providing material support
to foreign terrorist organizations under Section 2339B does not
explicitly prohibit receiving training from, as opposed to
providing training to a foreign terrorist organization, such as
by attending an al Qaeda training camp in Afghanistan.
In many cases, it is clear that persons who attend training
camps violate the existing material support statutes by
providing training to other trainees serving under the
direction of the organization and performing guard duty or
other tasks, providing money to the organization for the
training, or for uniforms and provisions and the like.
Proof of these specific activities, however, may be
difficult to obtain, especially when the training occurred in a
remote location. Section 115 of TFTA is designed to fill this
gap. Section 115 of TFTA would create a new criminal provision,
18 U.S.C. Section 2339E, which would make it an offense to
receive military-type training from a designated foreign
terrorist organization, subject to a penalty of fines or
imprisonment for 10 years, or both.
That concludes my prepared remarks, Mr. Chairman. I again
thank this Committee for its continued leadership and support.
Together, we will continue to make great strides in the long-
term efforts to defeat those who seek to terrorize America. I
am happy to respond to any questions you may have, as well as
address Senator Feinstein's earlier remarks.
[The prepared statement of Messrs. Bryant and Sabin appears
as a submission for the record.]
Chairman Kyl. Thank you very much. Again, I appreciate your
willingness to share the podium with a non-government witness
here, but he is such a frequent commentator on proposals to
change our laws and on provisions of law dealing with terrorism
that his views are certainly sought by many, and certainly by
this Subcommittee.
I would just note that I am just struck by the context of
this. As we have a problem, and September 11th was the
crystallization of that problem, and we begin to use the tools
that we have, we naturally find out which ones work well, which
ones don't work so well, and where there are real holes or
gaps.
This Act is deliberately designed simply to fill some of
the holes that have been identified by various intelligence and
law enforcement people who have had to be on the front line
working on this. It is striking--and I want to get into this a
little bit later--how working with the law enables you to find
out those things that need to be modified in the law and
getting advice from the court about those areas in which we as
Congress have not been as careful as we should have been
perhaps in making sure that the balance between the protection
of civil liberties and aggressiveness at going after terrorists
is achieved.
Professor Turley, thank you very much for being here.
STATEMENT OF JONATHAN TURLEY, SHAPIRO PROFESSOR OF PUBLIC
INTEREST LAW, GEORGE WASHINGTON UNIVERSITY LAW SCHOOL,
WASHINGTON, D.C.
Mr. Turley. Thank you, Chairman Kyl, Senator Feinstein,
Senator Cornyn. Thank you very much for the honor of appearing
before you today, and to join the panel with the Government
witnesses. Dan Bryant and Barry Sabin and I were acknowledging
the fact that we have more often been on different sides of
this debate over the last 2 years, and for some the appearance
of this panel will look like the Visigoths and the Romans
sitting down together. But I think that it does show that the
things that divide us are far less than those which we have in
common in terms of the fight against terror.
As you know, it is physically impossible for a law
professor to speak on any subject in less than 50-minute
increments, and so I have submitted a written statement which
is too long for any real purpose, but it is available to the
Committee.
I was asked to look at this bill, which is composed
obviously of many different provisions, which is something of a
daunting task, and to look at it in terms of its constitutional
status and also its implications in terms of civil liberties in
this fight against terror.
I appreciate the Chairman and the members of the Committee
inviting me and indicating that they are interested in the
views from both sides and not just similar views on these
subjects. I am happy to say that I view this as an important
advance. I think that civil liberties advocates and national
security advocates can find common ground here. It is not that
I don't have concerns in this bill, and I am going to mention a
few, but the vast majority of this bill serves a real purpose.
There are some great advances here.
I think that there is a mistake that many people have when
they look at this country from abroad and they assume that when
we face these types of dangers, we don't have the ability to
react, and react forcefully, but also to react within the first
principles that define us as a Nation. This is a good example
of one of those bills that respects civil liberties and I think
advances national security.
Obviously, bad times take the measure of any people and
their government. This bill, particularly Title I, obviously
raises issues in terms of civil liberties because it readjusts
the relationship between the Government and citizens in the
investigation and prosecution of terror cases.
For the most part, what is in Title I is, in my view, not
problematic and is beneficial. Six of those sections I have put
at the end of my testimony because they have raised
constitutional concerns with various groups. I don't actually
share some of those concerns, but I think that they are good-
faith concerns and I think that the Subcommittee should look
very seriously at those concerns. Some of them I do feel
warrant assessment and possible changes in the language. But
let me quickly go through the titles and then I will address
those six sections.
Section 104 in terms of lifetime post-release supervision
is a good example of, I think, one of the advantages in this
Act. It, to me, makes abundant sense to have eligibility for
lifetime post-release supervision in these cases. It is hard to
argue against that, and the same can be said of imposing
criminal penalties for those that give false and misleading
statements in terms of terrorist crimes or about the death or
injury of a U.S. soldier. This is Section 106 which deals with
hoaxes.
I previously have advocated the criminalization of these
types of hoaxes. While I believe that as a federalism
principle, this should primarily remain with the States, there
is obviously a Federal interest here. I, as I have written
before, find precious little distinction between a hoaxster and
a terrorist, since both of them are trying to shut down
buildings or communities. They are both achieving the same
level of terror.
For a terrorist, the actual body count is sometimes
irrelevant, as opposed to the dysfunctional effect of the
threat, and hoaxsters achieve the identical result. What is
particularly curious is that with some of these hoaxes--and
they have come from bizarre corners, from journalists to
prosecutors, to normal citizens. The problem is that they often
involve millions and millions of dollars of costs that are not
recouped.
The effect of this type of law will be to call this conduct
what it is--criminal. We will return to this theme a couple of
times here that this bill does achieve a very important thing
in some cases in establishing that conduct is criminal. That is
one of the functions of criminal law, is to correctly identify
conduct that as a society we believe is beyond the pale and
must be considered criminal.
We also have, for example, other sections which I doubt
seriously anyone could argue with, including Section 111, which
denies Federal benefits to convicted terrorists. I doubt you
will find much disagreement there.
I also agree with the Government witnesses that Section 115
achieves an important purpose in making it a crime to receive
military-type training from a foreign terrorist organization.
We have seen in cases in recent years, particularly cases like
Jose Padilla, that these training camps are used to recruit and
indoctrinate individuals. The problem from what I can see is
that prosecutors are often left with a very sudden cliff. They
either have to charge a direct terrorism crime, which is
sometimes difficult to fit, or they have to use a more
ambiguous theory. It makes for a difficult prosecution.
What this would do is correctly identify the specific crime
of receiving this type of military training from a terrorist
organization. And, frankly, it would go directly at one of the
great recruiting techniques used on people like Padilla and
John Walker Lindh. It also will be of advantage to prosecutors,
since they will have a tailored crime to present in front of a
jury instead of requiring the jury to adopt a more general or
fluid theory.
I am not going to go through each of these sections. I will
note, however, that sections like Title IV, which is the
Seaports Act, is enormously important. That is an example of an
entire area in which we have had significant gaps in terms of
the criminalization of misconduct. Congress has repeatedly
identified seaports as one of our great vulnerabilities, and
these criminal provisions, I think, will present a significant
deterrent particularly for people like transporters who are
bringing terrorist material or terrorists into the country. I
believe that this will have a significant effect on deterrence
and will benefit us all.
Turning to those six sections that have drawn the most
significant criticism, the first would be Section 102, the lone
wolf provision involving FISA. This is the only section that I
have significant personal difficulties with, but I need to
preface my remarks with a personal caveat. I have been an
opponent of the FISA law for many years. I tend to adopt a
fairly textualist view of the U.S. Constitution. I believe that
the FISA court does not comply with the Fourth Amendment. So my
objections to this provision really go more generally to the
entire FISA process.
Having said that, I want to be honest that I doubt that the
Supreme Court would share my view. The Supreme Court has not
fully tested FISA, but I believe that they would uphold FISA,
and I also believe they would uphold this provision. So if the
question of the Subcommittee is whether this provision will
pass constitutional muster, I expect it would, and my
objections go more generally to FISA, as I have explained in my
written testimony.
Section 103 deals with bail for terrorists. This is a
presumption against bail for accused terrorists, and this has
drawn some criticism from various quarters. I have no question
in my mind that this would pass constitutional review, and I
also don't object to it. It seems to me a reasonable request
from the Department of Justice to have such a presumption that
is indeed rebuttable. We already have this type of provision in
18 U.S.C. 3142E, and it seems to me rather obvious that accused
terrorists should be treated in the same fashion.
In Section 104, we have the JETS provision. This is the
Judicially Enforceable Terrorism Subpoenas provision. On this
issue, once again there have been concerns, and I share those
concerns, in terms of the ability of the FBI to issue its own
subpoenas.
It is ironic that the civil liberties community and the
Department of Justice agree on one thing. The Department of
Justice wants this provision because of the ease with which
they can issue subpoenas, and that is exactly why civil
libertarians are uncomfortable with it. They are concerned that
this is making it too easy and that there is some benefit of
having an AUSA there to serve as some type of intermediary.
My view on this, quite frankly, is that this change is not
going to result in a significant difference. I have never
personally heard of an AUSA turning down one of these things.
It tends to be a very perfunctory process. But what I would
encourage the Subcommittee to do is that if they decide to move
the JETS provision to the floor that they commit themselves to
close oversight supervision on this point.
This is one area where the closest possible oversight is
needed. The Subcommittee must have some type of guarantee that
it will receive information on an annual basis as to the number
and scope of these subpoenas. To not have that guarantee, I
think, frankly, would be dangerous.
Section 108 involves confidential CIPA provisions, and once
again I have to confess a personal bias. As the Chairman has
noted, I litigate national security cases and I tend to be on
the other side of CIPA proceedings. This provision would allow
the Government to submit in camera ex parte requests for CIPA
protection.
Quite frankly, this is a request that is almost uniformly
accepted by courts. There are a few courts where courts have
rejected these requests and said you put the request on the
public record. But quite frankly, I don't see many cases where
the Department of Justice has been put into a compromised
position that is indicated in this amendment. But it will
probably not materially change most cases or the rights of
defendants. Very little is actually disclosed in these public
requests, and so the difference is likely to be marginal.
109 is the FISA information issue regarding immigration
proceedings. This provision has been called by the American
Immigration Lawyers Association as constitutionally dubious.
The AILA believes that allowing FISA information to be used,
but not allow notice of the use would raise constitutional
problems.
As much as I respect that organization and the work that it
does, I do not see the constitutional problem. The fact is that
you can use secret evidence in immigration proceedings, and the
mere fact that you will not get specific notice that it is
FISA-derived, in my view, is a practical and not a
constitutional problem for the defense.
Finally, in Section 114, we have the material support
provision. This provision, as was noted, corrects gaps in the
original language identified by the Ninth Circuit Court of
Appeals. In that sense, it moves this statute out of one
constitutional area of concern; that is, void for vagueness. I
would think that that would be embraced by civil liberties
advocates.
However, I want to note that there remain First Amendment
and due process concerns with regard to material support
prosecutions. I happen to share those concerns, but the
material support issue is a difficult one for civil
libertarians because we are frankly divided. There are some who
believe that any prosecution for material support raises facial
constitutional problems, that it gets into speech and
association.
I share those concerns, but I also believe that the
Government does have a legitimate interest in prosecuting
people giving material support to terrorist organizations. We
have throughout our history prosecuted aiders and abettors, and
to me there is precious little difference in the type of
misconduct identified in this provision.
Having said that, I have enormous concerns over the
prosecutions under this provision and I have significant
concerns over the administrative aspects of designating
terrorist organizations. I would encourage the Subcommittee to
look at that.
However, I believe that this is an advance. It makes this
statute better and brings it closer to conformity with the
Constitution. Quite frankly, I believe this entire law would be
upheld under even First Amendment and due process challenges as
it stands. It doesn't mean it can't be improved, but I believe
that most courts would accept this language as fully complying
with the Constitution.
Let me end by saying that I believe that this law really
represents the best of us in the sense that it involves a
number of changes that were made in conformity to objections
made earlier in 2003. There have been sections that have been
removed, and I believe that this has been improved
dramatically. I do think that civil libertarians should reflect
that and show that we support a fight against terrorism and
that we recognize the changes that have been made.
In the same way, I hope that the Department of Justice
recognizes that Congress has once again shown in this bill that
it is willing to deal with matters in the Federal courts to
make them an acceptable forum for the prosecution of terrorism
cases and enemy combatant cases.
One of my criticisms of the current Attorney General is
that he has often expressed a certain distrust of the judicial
system and its ability to handle terrorism cases. I don't agree
with that. I don't understand why the Attorney General has
worked to circumvent the courts in some respects.
But I believe this bill shows that Congress and many civil
liberties advocates are willing to make adjustments to
compromise and to accommodate, and I hope that that will carry
over to the Department of Justice because I think that
ultimately we have a certain crisis of faith when you start to
circumvent the Federal judiciary.
This constitutional system has existed through every
possible stress challenge. We have faced challenges that would
have left most systems in a fine pumice and we have survived.
That is what the Framers built. They built a constitutional
system to survive, not to inspire, to survive, and we have
survived.
For those that say that the Federal courts cannot be used
to try these cases, it borders on constitutional defamation. We
deserve better, and this Act will strengthen the ability of the
Government to use the Federal courts and I hope that it will
renew their commitment to use them consistently in these cases.
That ends my statement. Thank you, sir.
[The prepared statement of Mr. Turley appears as a
submission for the record.]
Chairman Kyl. Thank you very much, Professor Turley. I
would note that a lot of the ideas here that are embodied in
this legislation have come from the Justice Department.
Mr. Turley. Yes.
Chairman Kyl. So it presumably does indicate a desire on
their part to continue to use the system and to improve it so
that they can be successful. Obviously, if you have the Ninth
Circuit initially at least ruling that the material support
statute doesn't work, that doesn't help the Justice Department.
So they have helped us come up with some ways that they think
that it would. I very much appreciate your candidate assessment
of this.
What I would like to do, I think, is to begin with at least
three of the areas in which you indicated that the sections
probably would be upheld as constitutional, but either bear
close watching or you really question the need for in the sense
of what improvement would they really make, would it really
change anything; specifically, the CIPA protection, the
material support statute. Do we really--well, excuse me. I
guess that isn't the point that you made there, but that we
have to provide significant oversight there, as well as in the
administrative subpoena section.
Let me just ask our other two witnesses to address the
question of why some of these provisions would be needed,
specifically the ones that you referred to--administrative
subpoena, CIPA protection, material support, and then I will
make the case for the lone wolf.
Dan Bryant.
Mr. Bryant. Mr. Chairman, with respect to administrative
subpoenas, and then I will turn to my colleague, Mr. Sabin, and
have him respond to a couple of the other provisions, as you
know, current law currently provides dozens of agencies with
335 distinct authorities to use administrative subpoenas in a
wide variety of investigations.
The question that you all are facing, that Congress is
taking up, is whether or not in terrorism investigations--and
the text of this bill would only provide for administrative
subpoenas in terrorism investigations--whether or not that same
widely employed investigative authority should be available in
terrorism investigations. We think the answer is absolutely
yes, given the imperative of preventing terrorist incidents.
The key to prevention is often speed. Administrative
subpoenas, as Professor Turley has noted, do provide an
opportunity to move more swiftly to obtain key information from
a third party in connection with a terrorism investigation.
Professor Turley indicated that AUSAs routinely will sign a
grand jury subpoena, but what of the circumstance when no AUSA
can be found? What of the circumstance when a grand jury isn't
sitting, and under Federal law the return date to comply with a
grand jury subpoena requires that the grand jury be sitting?
What if it is a Friday evening and these resources aren't
available over the weekend? The administrative subpoena
provides another way for our terrorism investigators to not be
slowed down by those occurrences and to move with great speed
to obtain relevant information from third parties. So we think
that administrative subpoenas, which are used routinely in all
of these other areas of Federal investigations, certainly are
appropriate to be used in terrorism investigations.
Chairman Kyl. On that point, do you think that whether it
be classified or not in all cases that the Department would be
willing to share information with the Congress on a routine or
timely basis as to the situations in which that subpoena
authority is used if, in fact, it is granted so that we could
on a real-time basis perform our oversight function as
Professor Turley has suggested we should?
Mr. Bryant. Yes, I think that would be important and
entirely appropriate.
Chairman Kyl. Thank you.
Mr. Sabin. With respect to two of Professor Turley's
points, one on the Classified Information Procedures Act,
Section 108, that is a very limited change. All the legislation
provides is rather than a prosecutor standing up in open court
dealing with critical national security evidence or information
and making the request which currently exists under Section 4
of the Classified Information Procedures Act, it permits that
to proceed ex parte and in camera with the judge, which is
already embedded in the present law. But rather than making it
discretionary, it makes it mandatory.
So the same procedures and substantive rights that a
defendant would have would not be undermined, would not be
changed. The same constitutional protections are assured. It
just provides the court to review that national security
information without exercising discretion and forcing the
prosecutor to stand up in open court and trigger that
mechanism.
With respect to the material support statutes, as I
mentioned in my opening remarks, that has been the backbone and
the life blood of our Article III judicial prosecutions in the
post-9/11 realm. I would refer this Committee to the decision
last week of the United States Court of Appeals for the Fourth
Circuit where, en banc, they determined that Section 2339B
survived constitutional scrutiny emanating out of a terrorist
case from Charlotte, North Carolina, involving a Hezbollah
racketeering enterprise.
The court addressed the constitutionality on vagueness and
over-breadth grounds, and found that it was appropriate.
What Section 114 would provide is specific terms--
``personnel,'' ``training,'' ``expert advice or assistance.''
With respect to the first constitutional scrutiny that would
involve vagueness, we believe that those terms are precise and
defined already within the current ambit of the law--precise
meaning for personnel, an employment or employment-like
relationship; on training, instruction or teaching in part a
specific skill, as opposed to general knowledge of a subject
matter. And on expert advice or assistance, Federal Rule of
Evidence 702 acts as a spring board for providing that kind of
specific scientific, technical or other specialized knowledge.
So we believe that while already the language is precisely
defined, this would merely act as sort of a belt-and-suspenders
so that we can ensure that the critical statute that has been
the backbone of our efforts--so that there is no ambiguity in
its effectiveness and use. We believe that the material support
statutes are constitutionally sound presently. This would just
further address any civil libertarian concerns or any remaining
concerns that exist out there.
Chairman Kyl. Professor Turley, particularly on that last
point, because of the circumstances under which it would be
necessary for prosecutors to look to the material support
statute, lacking anything more concrete with regard to an
individual that they want to charge, can you be any more
explicit with regard to due process or First Amendment concerns
which you expressed in a general way? And I realize we are
talking about hypotheticals, but law professors are good at
those, as I recall.
Mr. Turley. I would be happy to, Mr. Chairman. There have
been a number of objections made to the material support
prosecutions. Some of those can be divided into the designation
of organizations by the U.S. Government. There has been a great
deal of objection on the administrative level that
organizations are not given a full opportunity to oppose the
designation. That came up in the Holy Land Foundation case.
I am not questioning the outcome of that case or whether
they should have been designated, but I do think that that case
raised some very significant due process questions, including
the evidence that was introduced against the organization which
proved to be somewhat dubious ultimately.
Now, that doesn't mean that it would change the outcome. It
probably wouldn't have changed the outcome, but I believe that
the attorneys for the Holy Land Foundation did raise some
significant due process questions about that organization's
ability to contest some of these issues.
The First Amendment issues go to a broader question. When
you prosecute someone for material support, you are prosecuting
them even though they have taken no active, violent measure.
And you get into the type of Brandenburg issue of what is
really required. When is something speech and when is something
a crime? Inevitably, when you prosecute material support, you
will raise speech and association questions.
I happen to disagree with some of my close friends, in that
I think the Government has a legitimate reason to do so; that
we have to find a way to do this and to protect those
interests. We have to have the ability of citizens to support
unpopular groups and to have a chilling effect, not an
uncertainty in some of these cases as to whether they could get
into trouble in engaging in political speech.
I think the current law allows for too low of a threshold
on material support; that you could take a look, frankly, at
what triggers material support and what has to be shown to deal
with those questions, to give further protection for First
Amendment interests. I would be more than willing to submit to
the Subcommittee suggestions along that line.
But I do want to emphasize with regard to what Mr. Sabin
said I agree with his testimony that some of these cases have
performed a vital function. I think this is a crime for our
times and we cannot continue to fight against terrorism unless
we direct our attention to those people among us who are
funding those who are trying to kill us, and we have to find
some way to do that. I think the material support provision is
a bit too general and should be more specific as to First
Amendment activities, and I think that this Committee could do
that.
Chairman Kyl. As I understand it, your support for the
clarification so that we eliminate the void for vagueness
problem is consistent with Mr. Bryant's testimony.
Mr. Turley. Absolutely, and I want to also build on what
you said, Mr. Chairman. I think it is commendable what the
Department of Justice has submitted and contributed to this
legislation. I think that it is commendable that they are
responding to the Ninth Circuit decision and filling this gap.
Chairman Kyl. Thank you.
Senator Feinstein.
Senator Feinstein. I have real concerns giving the FBI the
administrative subpoena. We purposefully left it out of the
PATRIOT Act. We did 156 sections, of which 16 sunset.
Dr. Turley, my experience is that carrying out the
oversight role over this Justice Department is very difficult.
To that end, I would like to ask that my letters of March 23,
April 28 and June 14 asking for information just to be able to
carry out the oversight role be entered into the record, if I
may.
Chairman Kyl. Without objection.
Maybe this is a good time to respond to the concerns of the
opening statement. I would ask if the witnesses have the
letters or are aware of them so they might be able to respond.
Senator Feinstein. Let me just finish on the administrative
subpoena, if I might.
Chairman Kyl. Sure.
Senator Feinstein. I have received no information that
Assistant U.S. Attorneys are not available 24 hours a day to
sign off on a subpoena, and I would like to ask if there is
that information that I receive it or if you could answer that
question that you do so now.
Mr. Bryant. Senator, I would be pleased to make sure that
we have a fulsome response after this hearing. As an initial
response, I am aware of circumstances where administrative
subpoenas have been utilized in circumstances where it is
unclear whether or not a grand jury subpoena would have been as
readily available because of either the unavailability of an
AUSA at that moment or the lack of a sitting grand jury. I
would be pleased to have the discussion of that fact in more
full provided to you.
Senator Feinstein. I would really like to know whether that
is fact or fiction because generally the subpoena is issued by
the prosecutor. So I would like to know if this really is a
case where there is a necessity.
Mr. Bryant. Right.
Senator Feinstein. I am very disappointed. I mean, I don't
understand how we can carry out our oversight responsibility.
The Ranking Member of this Committee is told that they will not
share on a classified basis information with us as to problems.
That is a real problem, and yet they turn around and ask to add
new sections, all of which do have some implications.
Now, let me ask this question. Section 2, 50 U.S.C. 851,
says, ``Except as provided in Section 3 of this Act, every
person who has knowledge of, or who has received instruction or
assignment in the espionage, counter-espionage or sabotage
service or tactics of a government of a foreign country or of a
foreign political party, shall register with the Attorney
General by filing with the Attorney General a registration
statement, in duplicate, under oath, prepared and filed in such
manner and form and containing such statements, information or
documents pertinent to the purposes and objectives of this Act,
as the Attorney General, having due regard for the national
security and the public interest, by regulations prescribes.''
Has this section been utilized?
Mr. Sabin. What was the statutory cite again, Senator?
Senator Feinstein. 50 U.S.C. 851, Section 2.
Mr. Sabin. If memory serves, that is relating not to
counterterrorism efforts, but counter-espionage efforts, and
that is a different component of the Justice Department. I can
make inquiries of the Counter-Espionage Section.
Senator Feinstein. The question was has it been used?
Mr. Sabin. I know Section 851 has been used, but I am not
aware of 851 as I sit here today, that registration requirement
being triggered. But rather than speak incorrectly, let me try
and get some more information and we can get back to the
Committee in that regard.
Senator Feinstein. I would appreciate that.
Now, if you would like to respond to my--first of all, Dr.
Turley, thank you very much for your letter. Unfortunately, I
just got it this morning and I would really like to study it a
little bit more. But I think your views are balanced and I
wanted to say I very much appreciate them.
The bottom line for me, and I suspect for this side, is
before we add to the 156 provisions we have passed, I think we
need to do our due diligence on those provisions and see that
they are being properly carried out. That is where I have got
the problem.
So if you would like to take this opportunity, either Mr.
Bryant or Mr. Sabin, to respond, I would appreciate it.
Mr. Bryant. Yes, Senator. I think we will both try to
respond. I appreciated Professor Turley's observation that bad
times take the measure of a people and it is imperative that we
respect our first principles. One of those first principles is
that everything that we do by way of providing new tools
strengthens ordered liberty; that is, that we not promote order
at the expense of liberty, but rather that we promote the
genius of our tradition, and that is ordered liberty.
Oversight is an important element of that tradition. That
is one of those first principles and we need to make sure that
we are being responsive and useful in terms of our
responsibility as it relates to your oversight. We do think
that we need to do both; that is, we need to both be responsive
to Congress as it performs its necessary oversight function and
we need to be evaluating additional needs as we assess gaps in
current law. So we think we need to be proceeding
simultaneously with both of those important imperatives.
In terms of some of the specifics, Senator, that you raise,
it is clearly the case that the Moussaoui and Padilla cases--
and I think Mr. Sabin will respond perhaps in more detail--do
implicate new challenges. It is a new challenge that we face.
Questions of which resources to use in a criminal justice arena
or in the military arena have presented themselves in ways that
haven't occurred in the past, and we are proceeding ahead as we
sort through those unprecedented questions.
With respect to the Section 215 inquiry, as you know,
Senator, we are required under the terms of the PATRIOT Act to
provide to the intelligence committees of the Congress twice-
yearly reports regarding the use of Section 215, which is a
section authorizing FISA orders to be used to obtain tangible
things--records, for example--from third parties.
It is the FISA analog, as you know, to a grand jury
subpoena. It is used only in connection with terrorism and spy
cases. We are required to report to the Congress twice yearly
on usage of that authority provided in PATRIOT. It is my
understanding that in addition to the twice-annual reports that
we have already been providing to Congress, the next report due
to Congress is being finalized and will be on its way. That
would, of course, be available to the Senator and all Senators
for review through the auspices of the Intelligence Committee.
Senator Feinstein. Let me just stop you there. 215 is one
of the 16 sections that sunset. What I asked for is an
analysis, or the beginning of an analysis of all of the 16
sections. How can we vote to either let them sunset or to
continue them if we don't know how they have been used and
really have an opportunity to go into that use? That is
oversight, and I have got to say this is what your Department
appears to resist.
Now, I have never before been told I could not have a
classified briefing on something that is written in the
Washington Post. I have never been told I could not have a
classified briefing. I serve on Intelligence, I am Ranking
Member of this Subcommittee, and yet I was told I won't be
given that information.
So how could I vote to extend sections that are highly
controversial and which I have defended up to this point if I
can't adequately carry out my constitutional responsibility?
The bottom line is I won't if I can't.
Mr. Bryant. We owe you that information, Senator.
Senator Feinstein. Yes, you do.
Mr. Sabin. With respect to some of the specific matters you
referred to, Senator, post-9/11 the mission has been to prevent
terrorist activities before they occur. As part and parcel of
that, and consistent with Professor Turley's remarks that we
seek to address that in Article III constitutional Federal
district courts, we have sought to combine the fact that we are
sharing that information, pursuant to PATRIOT Act Section 218
which would sunset and 504, to enable the prosecutor and the
agent, to enable the criminal law enforcement person and the
intelligence investigator to sit down, share that information,
figure out which is the best tool in the tool box to use in
order to address that particular threat.
That means that prosecutors and agents are getting involved
earlier on in the continuum of that terrorist incident or
terrorist threat so as not to react, but to prevent, so that
cases are taken down earlier and you will have the less playing
out of the investigating realm before take-down as opposed to
after you seek to do the disruption.
We are also addressing the facilitators and the entire
spectrum of activity and not just the bomb-thrower or the
operator, but the financial facilitator. So your reference to
Sami Al-Hussein out in Idaho--I believe the system worked in
that regard. An individual was charged with specific offenses,
including material support offenses. It was a difficult case,
but the Government brought its evidence, put its evidence
before the court, which was tested, and the jury acquitted on
certain counts and hung on other counts.
That individual agreed to be deported from the United
States after the matter resulted in the hanging on certain
counts and the acquittal on others. But to address the activity
that Mr. Al-Hussein was alleged to have committed was acting as
a platform or a communications provider for violent jihad
activities around the world, and the Government produced the
evidence.
We disagreed with the court's jury instruction that was
provided to the jury, which we believe was problematic in how
the jury reached its determination on the material support
charges. But that is what you have to do when you bring cases
to court and try to have it played out in a full due process
arena. We respect that process and do not feel that that was in
any way a setback. Indeed, we are going to continue to bring
those kinds of cases thoughtfully, judiciously and aggressively
to address that kind of use of the modern technology in the
21st century that is being used by those who would seek to
facilitate and act as a platform over the Internet.
Your reference to the Albany matter--while it is pending,
the judge determined that the two defendants should be released
on bond. That is an example of undercover activities by the
Federal Bureau of Investigation. We applaud the use of those
undercover activities in order to try and ferret out criminal
activity consistent with the actions and conduct of individuals
violating material support statutes.
We have undercover recordings that we submit will be
delivered in discovery and provided at a jury trial to
establish the defendants' guilt, we believe, beyond a
reasonable doubt. Indeed, the specific provision in TFTA, the
presumptive pre-trial detention, would have triggered the
application under TFTA Section 103, the rebuttable presumption,
in the Albany matter.
The reference to a couple of the other cases are subject to
ongoing Justice Department review, but let me make a point
about the matter out of the West Coast that you referred to
which addresses the material witness warrants. We believe that
the use of Title 18 United States Code Section 3144 has been an
extremely effective mechanism in the post-9/11 world for law
enforcement to obtain information from those that we have not
charged with a criminal offense.
So we go to an Article III judge, provide probable cause
that an individual is a material witness in a proceeding that
is subject to judicial review and effective assistance of
counsel, and then pursuant to a grand jury proceeding. So we
believe that that system can work, and that is an effective
mechanism that the Government has used and will continue to
use, we respectfully submit, in order to make sure that we are
ensuring respect for the material witness' constitutional
rights, but also eliciting information that may enable the
Government to pursue others or to have that individual
released.
Senator Feinstein. I appreciate your spirited defense. I am
back on the reports to Congress that are due, and some are due
to Intelligence. My staff has just checked with Intelligence
staff and they can find none of the reports that were due to go
to Intelligence.
I am still trying to understand checks and on this what
means what, but I would be happy to share it with you. I think
it indicates that the reports to Congress, as required, have
not been forthcoming, and certainly have not been forthcoming
on a timely basis.
Thanks, Mr. Chairman.
Chairman Kyl. Thank you, Senator Feinstein. We will pursue
that with the Justice Department and make sure for the record
that we have the information that is required.
Senator Sessions has joined us, too. But, Senator Sessions,
even though Senator Cornyn is not a member of the Subcommittee,
he has got some pieces of this bill and let me call on him
first and then call on you, if that would be all right.
Senator Sessions. That is wonderful.
Chairman Kyl. All right.
Senator Cornyn.
Senator Cornyn. Thank you, Mr. Chairman. I appreciate
particularly Professor Turley's comments about the goal of
trying to balance civil liberty concerns with the necessary
tools that need to be provided for law enforcement and
intelligence-gathering abilities to provide for our National
security. Certainly, this is a debate that is as old as our
country and even older.
I think all of on the Committee, and indeed all of us in
Congress feel like it is our responsibility to see that that
balance is struck as well as we are able to do so. But
ultimately we can't know all the given sets of circumstances
and facts that may be presented in any given case, and in this
instance context is important.
That is why I believe it is important that there ought to
be recourse to judicial review, no matter what the
circumstance, whether it relates to the so-called sneak-and-
peek provisions of the PATRIOT Act which cannot be invoked
without the oversight of a judge. I feel the same way about the
judicially enforceable terrorism subpoenas, and let me just
explain.
My experience with investigations has been that frequently
third parties who receive a request from an investigator are
uncertain about what their liability may be, let's say, or
whether their compliance with a lawful request--let's say an
informal request--might perhaps invoke some third party rights
that are involved in the request.
So a couple of things happen. Either they will say, well, I
will be glad to give you the documents that you are requesting,
or they say I need a subpoena for my file just to show that
they are responding--not volunteering, but responding to a
lawful request.
Indeed, under the administrative subpoena provisions here,
ultimately if the repository or the custodian of the documents
that are subpoenaed says I am not going to give these up
without a court order, there is an opportunity to go to a court
to get that approval.
I would just like to ask first Mr. Bryant and then
Professor Turley to comment on that. If I have got that wrong,
tell me, but if you think I have got it roughly right, I would
like to know that as well.
Mr. Bryant.
Mr. Bryant. Yes, Senator, that is correct. In the case of
the judicially enforceable administrative subpoenas for
terrorism investigations provided in the bill, recipients can
refuse to comply. The FBI can't then enforce that on its own.
It would have to go to court to seek to enforce that subpoena.
A recipient could petition the court to modify the terms of the
request or to quash the subpoena entirely.
It is the case that there is also a provision indicating
that compliance with the subpoena request by a third party does
not create civil liability on the part of the compliant party.
So we think these are important protections that are explicitly
part of the provision.
Senator Cornyn. Professor Turley, I note from one report I
saw that Congress has already granted administrative subpoena
authority in lot of other contexts. That number is kind of
staggering--335, according to one report, including postal
inspectors, Small Business Administration inspectors. And they
are used widely by Federal investigators in health care fraud
investigations and in connection with child exploitation
investigations.
So is there something specific about this context or the
general issue of administrative subpoenas that causes you
concerns?
Mr. Turley. Well, first of all, I think that is a valid
point that you can make too much of the issue. I think there
are legitimate concerns here and I will address those in a
second, but it is also, I think, confusing when we refer to
grand jury subpoenas. It makes it sound like a grand jury
issued them, when, in reality, it is simply being signed by an
AUSA.
So the removal of the AUSA is not going to be a significant
change in terms of civil liberties protections on a practical
or a legal basis, and I think that you have to start with the
analysis and accept that proposition from my standpoint.
Also, parts of this provision, I think, do make abundant
sense, although some of my friends strongly disagree with me.
One, for example, is that it prevents people from revealing a
national security subpoena. It requires them to only disclose
it to their attorney. They can then go to a court to seek the
court's intervention if they disagree with the subpoena.
I think that the Department of Justice has a perfectly
valid reason for imposing that limitation. The fact is that
Federal investigators face this problem all the time outside
the terrorist area of issuing a subpoena and then triggering
knowledge by potential targets. In the terrorism area, I can
think of no greater danger than that type of release of
information.
So putting those aside, the issue involving administrative
subpoenas can be distinguished in one respect. Those often deal
with civil matters; they deal with administrative matters where
the potential for the defendant is not as significant as in a
terrorist case. So you can make a distinction between the two.
Once again, this is not, in my view, a significant threat
to civil liberties, and I think there is a good reason that the
Department of Justice is asking for this. To be quite frank,
civil libertarians feel wounded in the last few years, and to
support some of these provisions is really an exercise of hope
over experience for some civil libertarians.
So there is a certain degree of resistance to anything that
would make it easier or faster to issue these types of
requests, and that is the reason I think Congressional
oversight is so essential if you go forward with it.
Senator Cornyn. Well, I appreciate your response because I
think it is a very balanced point of view. Unfortunately, in
this area some view it as a zero-sum game. Either law
enforcement gets what it wants and needs, and if it does, then
all of our civil liberties are in jeopardy. I mean, it just
seems to be based on TV advertising. Mail solicitations that I
receive at my home asking me for money because the U.S.
Attorney or the Justice Department or the U.S. Government or
the Congress is taking away your civil liberties by provisions
like this or like the sneak-and-peek provision which do provide
for judicial oversight seem to be so hysterical and off base.
But I appreciate your response.
Two other quick questions. One has to do with port
security, and again I appreciate, Professor, your comments that
you think this is an important and significant reform because
of the potential vulnerability of our ports.
Let me first ask, Mr. Bryant, the port of Houston, in
Texas--we have talked to them about this provision and they had
some concerns, for example, in Section 402, the entry by false
pretenses; 409, manifest requirements; 410, stowaways; and 411,
bribery. They wondered whether these provisions create or add
to the liability of a public port authority. do you have an
opinion on that, sir?
Mr. Bryant. If I might, Senator, in the division of labor
Mr. Sabin and I arranged, I think he is in a better position to
respond.
Senator Cornyn. Excellent.
Mr. Sabin.
Mr. Sabin. I can't speak to whether it increases the
liability in a civil context of a particular port officer or
the employees in that regard. We can get you specific
information in that regard.
I mean, certainly Title IV addresses, we believe, very
necessary legislation gaps that exist relating to transporting
terrorists and transporting weapons of mass destruction on
vessels, the destruction of certain vessels at maritime
facilities, conveying false information to particular
individuals.
It does address in one of the provisions the link between
corruption or bribery and port security, so that law
enforcement can address a potential vulnerability where there
is a gap between the border where someone can bribe a
particular individual and therefore more easily facilitate
terrorist entry into the country. But as to your specific
question, I can get further information as to the potential
civil liability for an employee at the port.
Senator Cornyn. I would like to know what the Department's
official position is on that because if it is unclear, we may
need to look at that because I don't want any port, whether it
is the port of Houston or others, by invoking the provisions of
this statute to incur any additional liability and to create
liability that is not already present for civil purposes,
obviously.
Mr. Sabin. One thing that we can do is, post-9/11, we have
set up a mechanism known as the anti-terrorism advisory
councils, which bring together the prosecutorial entities, as
well as individuals at the seaports--first responders and the
like--to gather and share information. So as part of that
system, we can go back to our offices, reach out to the anti-
terrorism advisory council coordinator in Houston or other
specific port districts and have them, since they now have the
networks and shared information that is occurring post-9/11,
obtain that information and get you an expeditious response in
that regard.
Senator Cornyn. Well, so I don't wear out my welcome too
much, since I am not a member of the Subcommittee, let me just
ask one more question and this has to do with MANPADS. I think,
Mr. Bryant or Mr. Sabin, whoever has this issue in your
division of labor, I appreciate the support of the Department
for this provision to increase the penalties, and indeed to
create penalties for possession of MANPADS.
All you need to do is to drive out close to Reagan National
Airport where they have the soccer fields and the bike trails
where the planes take off for that concern to be brought home.
I am aware of the fact that, of course, during the Soviet
invasion of Afghanistan, there were an awful lot of Stinger
missiles and other MANPADS provided to the Mujahadeen to knock
down Soviet helicopters. Unfortunately, there are a lot of them
still circulating in places like the Middle East and places
like Central America, where I recently traveled and was told
that there was a buy-back program designed to get these out of
circulation.
Do you have any figures or do you have any information that
you can share with the Subcommittee on the availability of
these via arms merchants and how realistic the threat of access
to MANPADS by someone who wishes to do us harm--how readily
they can be obtained?
Mr. Bryant. We would have to get back to you, Senator, with
specifics. As a general matter, though, it can be noted that
the bad news is MANPADS are available in the global
marketplace. The good news is many of them, including some of
those that you have referred to from past conflict in parts of
the world, are very old, raising questions of reliability.
I do know that there is a briefing available by individuals
within our intelligence community and they can speak with great
specificity to the question of how many and what type are
currently available.
Senator Cornyn. Thank you very much. Whether they are old
or not, I am reminded of the saying that we keep repeating
around here that the bad guys only have to be lucky once and we
have to be lucky all the time.
Thank you, Mr. Chairman.
Chairman Kyl. Thank you, Senator Cornyn. You are welcome
anytime.
Senator Sessions.
Senator Sessions. Mr. Chairman, thank you for your
leadership on this issue. No one in the Senate has been more
aggressive and alert to the important issues than you, and
Senator Feinstein also has been supportive and shown leadership
on these questions.
I would like to go back to the administrative subpoena, the
FBI subpoena. This is something that is a mountain out of a
mole hill if there ever was one.
Is it not true, Mr. Sabin, that the DEA on a regular basis
can issue administrative subpoenas for bank records, telephone
records and motel records, and does that everyday in drug
cases?
Mr. Sabin. It is my understanding that, yes, the Drug
Enforcement Administration, as well as a host of other Federal
agencies, use the administrative subpoena authority on health
care fraud prosecutions and others.
Senator Sessions. Mr. Chairman, what used to happen in the
days of ``Dragnet'' and Jack Webb is the police officers would
call the motel or the telephone company and say I need the
records on John Doe, and they would give them to them. And then
somewhere lawyers got involved and said, well, maybe motel
records are confidential to the customer and maybe we can't
give them. And the banks said these are our customers; we don't
want to help the DEA or the FBI prosecute our customers, so we
are not giving the records anymore.
So you have to get a subpoena, and the way that works is
that to get a subpoena for drug cases, the DEA issues a
subpoena. In addition to that, Small Business Administration
investigators can issue them. The Internal Revenue Service can
issue them on tax charges. We can't issue these subpoenas on
terrorists who want to kill us, but we can issue administrative
subpoenas to get records to prosecute a citizen on a tax
charge, and the Nuclear Regulatory Commission, the Department
of Labor, the Bureau of Immigration and Customs and
Enforcement.
So first of all, this is not a big deal, to my mind. There
is a bureaucratic matter that Mr. Sabin and Mr. Bryant probably
understand, and that is the Assistant United States Attorneys
like to be in charge of everything. So they like to have a
grand jury subpoena and they don't care if an FBI agent needs
it on Friday afternoon and Monday is a holiday and the FBI has
to wait until Tuesday to find an AUSA to get the thing
approved. Or maybe the AUSA is out and nobody else will approve
it and he has to wait two weeks and the whole investigation is
delayed. I have always been sympathetic, frankly, with the
FBI's concern. The DEA can get these records; everybody else
can get them. They are just about the only agency that can't.
Is that a fair summary of the history of some of this
stuff, Mr. Sabin? You are a prosecutor. Have you tried cases?
Mr. Sabin. I have, sir; I have tried many. Prosecutors are
diligent, but there are circumstances on weekends or where they
can be delays. I don't want to say that it occurs frequently,
but it is a necessary means for an agent to have in the most
expeditious fashion the ability in a terrorist investigation
not to be delayed. So if we can get those records, we can
exploit the information and we can act to prevent a terrorist
attack. So anything that we can do to get that information
quicker and shared more expeditiously we support.
Mr. Bryant. Senator, can I just add it is important to
note, I think, that current law already provides for the same
kind of non-disclosure that is contemplated in this provision
in other types of investigations. Health care fraud, child
crimes, investigations involving educational records--in all of
these areas, current law provides for the opportunity for a
non-disclosure requirement to be attached.
Senator Sessions. Now, that is interesting. So you have got
a non-disclosure provision in education investigations, which
don't threaten the lives of thousands of American citizens, and
potentially millions. So we have that kind of freedom in those
cases, but we don't in terrorism cases.
I think our friends in the civil rights and civil liberties
community are really overboard on this and just haven't thought
this through and haven't understood the history and the ways
policies occur, Mr. Chairman. I think they just react
immediately to anything that looks like an expansion of
investigative powers, when really this is just bringing
terrorism cases up to some of the abilities we have now in
other cases.
Let's talk about this non-disclosure. This is really,
really, really important. If you are doing a high-level
terrorist investigation and you have identified an organization
that there is reasonable cause to believe may be involved in
serious attacks against the people of the United States,
subjecting thousands of people's lives to danger, maybe you
need a bank record to see where money has been moved to
corroborate these charges, Mr. Sabin, and you subpoena that
bank record.
What could it do to the investigation if the bank's lawyer
says, well, it is our policy to advise our customer whenever
their records have been subpoenaed? How could that impact the
investigation?
Mr. Sabin. Time is of the essence. You want to make sure
that you can get that information as quickly as possible. So if
you are going to be subjected to negotiation and legal back-
and-forth between counsel for the financial institution or a
court proceeding or any kind of other endeavor that would
subject that information to not being provided as timely and as
quickly as possible, you can play out the parade of horribles.
Senator Sessions. I guess I was moving on to the next
subject, which is the immediate non-disclosure limitation. A
lot of banks take it as policy. I have investigated frauds
involving banks, or needing records from them. A lot of banks
take it as a policy that they should notify their customer as
soon as that customer's records have been subpoenaed.
Now, if you are trying to conduct a surreptitious
investigation of a group of terrorists, you don't want them to
know you are on to them and that you are investigating them.
Can't this blow up the whole investigation if they called up
the terrorists to tell them their bank records have been
subpoenaed by the FBI?
Mr. Sabin. Certainly, it can impact not only that
individual, but that individual's actions and relationship to
other individuals in the organization. So monies can be moved,
evidence can be destroyed, people can flee legitimate targets.
So you will lose the ability to control the investigation. You
lose the power to be able to strategize and use all the tools
that Congress has provided us, whether that is the continuing
electronic interceptions or other authorities in connection
with that financial subpoena. So non-disclosure is very
critical.
Senator Sessions. This only applies to the FBI in terrorist
cases. It doesn't apply to the IRS or drugs or fraud or
corruption or bribery, only in terrorist investigations. That
would be a small number overall of the investigative work of
the FBI, would it not?
Mr. Sabin. Correct, Senator.
Senator Sessions. Well, I understand the Supreme Court by a
9-0 ruling approved administrative subpoenas and approved the
non-disclosure rule. I think Justice Thurgood Marshall wrote
that opinion. So this is not a deal that threatens our
liberties. That is all I am saying.
I am delighted that our civil liberties groups are watching
everything we do, and I think it is fine that they challenge
and raise issues when we may be threatening American liberties.
But if we had to have one example in America, one kind of case
in which you would have administrative subpoenas and non-
disclosure by the recipient, wouldn't it be terrorism, if that
was the only case we allowed it to happen? But now we are doing
it in all these other cases of lower importance and denying it
in terrorism cases, and I think that is really bizarre.
Mr. Bryant, did you want to comment?
Mr. Bryant. Senator, your analysis might lead one to
conclude that the non-disclosure requirement should attack
automatically in all terrorism investigations. The text of this
bill is more judicious, if you will, even than that, in that it
provides for non-disclosure in terrorism investigations only
when the Attorney General certifies that disclosure could
endanger the national security of the United States.
Senator Sessions. Well, that is a very significant point, I
think, to make and I am glad you clarified that. I do note that
FBI Director Mueller has said this authority would be, quote,
``tremendously helpful,'' close quote, to terrorism
investigations, and I really believe it would. Based on my
experience, you don't want the bad guys to know you are on to
them. You don't want them to know that you are getting records.
A lot of times, steps are not taken in an investigation
that investigators would like to take simply because they know
it will tip off the criminals to what is going on. In a
terrorism investigation, that could cost lives. I think you are
right.
Mr. Turley, you have thought about this a lot. Are we way
off base on this?
Mr. Turley. No, you are not, Senator. The fact is I think
that the non-disclosure provision is important. It is a valid
request by the Department of Justice. I think that this section
is written, as was noted, in a highly judicious manner. I think
it is something that does not raise civil liberties concerns,
but it does raise national security issues that are valid.
In terms of the use of these subpoenas, I also agree that
we shouldn't make this bigger than it is. The civil liberties
community--I can't speak for them, but as one person who has
advocated civil liberties views in the past, I can say that
there is obviously a great sensitivity when we are in a fight
like this against terror. There is a great concern.
The fact is that some of our greatest wounds historically
have been self-inflicted. We have done a great amount of harm
to ourselves in the past when we have faced great threats. But
it is also important, as you have noted, for the civil
liberties community to recognize when there are valid requests
and needs by the executive branch.
As I mentioned in my opening statement, I think that if the
Subcommittee goes forward with the JETS provision, it is simply
important for the Subcommittee to clearly lay out an oversight
function and a reporting schedule so that you can keep track of
the scope and number of the subpoenas.
Senator Sessions. Well, briefly, Mr. Sabin or Mr. Bryant,
could the Department of Justice require that the FBI give
notice to the U.S. Attorneys and Assistant U.S. Attorneys for
these subpoenas? You don't need the statutory authority for
that. I mean, the little bureaucratic deal is that the
Department of Justice attorneys like to know everything. I have
been there, been one of them. So it is a power deal, and it
always has been, between the FBI--the FBI says the DEA can do
this, why can't we?
Mr. Bryant. It could both be required as a matter of DOJ
practice, and even if there were no such requirement imposed
internally within the Department, FBI investigators utilizing
administrative subpoenas would have reason to nevertheless work
closely with AUSAs in connection with those investigations
underway.
Senator Sessions. I agree with that.
Chairman Kyl. Senator Sessions, let me just interrupt you
for one second. If we were to impose a reporting requirement of
the circumstances in which it was used, obviously they would
have to report it to somebody and the Department of Justice is
the obvious entity to provide the report. So it could happen as
a matter of course.
Senator Sessions. Right. But, fundamentally, the principle
is this: If you go into a motel and you sign a motel document
saying you are there and put your tag number on it, there is no
expectation of privacy in that. If you make a telephone call
and you contact someone on the phone, you have an expectation
of privacy in the contents of the conversation. But to make a
telephone call, everyone knows the computer systems account for
the numbers that you utilize and there is no expectation of
privacy of the telephone numbers you call in that, and
historically phone companies have given them over without
subpoenas.
I mean, this is the fundamental constitutional principle
involved here: Is there an expectation of privacy in your bank
records or telephone records? Since a bank is not like a
priest-penitent relationship, the banker does not have the
ability to refuse to answer questions about a person's bank
account. They don't volunteer, but if they are asked, they have
to testify to what the person told them about did they lie
about the loan, what did they tell them, what addresses did
they give them and all these things. So there is not an
expectation of privacy in the paperwork in the bank because
everybody in the bank has access to it. That is why bank
records can be subpoenaed in the fashion that they have been
without the high degree of proof required for a wiretap of a
person's private conversations.
I think, Mr. Chairman, you are on the right track with
this. I really believe that this particular thing is important
for our investigators. Other agencies have these powers and
have had them for years, and we really need the FBI to have
them in terrorism cases.
One more thing. Thank you for adding into your legislation
the legislation I offered earlier to close a number of the gaps
in the enforcement of attacks on trains. We had a lot better
laws on airplanes and some real gaps in mass transportation by
train, and thank you for making that legislation a part of it.
I think it is a good step forward.
Chairman Kyl. Thank you, Senator Sessions. Let me just
reiterate before I make a couple of closing comments for any of
you to respond to if you like that the purpose of putting this
bill together was to take things that were relatively non-
controversial that we could pass quickly. In the event that we
could not bring the reauthorization of the PATRIOT Act back up,
which the Department would like to see done, are there other
things that have been recommended over time or that members
have introduced as bills?
And in my opening statement, I made the point that all of
the legislation in this bill has either been introduced or been
the subject of hearings. It has gotten quite a bit of vetting,
but we wanted to have it all put together in one place, one
time, for this hearing.
Senator Sessions. We had a full hearing on the train
legislation that I offered.
Chairman Kyl. Right, and each of the components has had
some attention paid to it. So the idea here was to do something
that was not particularly controversial. The administrative
subpoena section is the only one that has really, I think,
received criticism, and I hope that after today's hearing and
the other information that has been produced on that, our
colleagues would see that that is not an extension of law, but
simply conforming to existing law with respect to a lot of
other different types of investigations our Government
performs.
The two areas that we really haven't focused on here--one
is not very controversial, but I just want to make the point
because it is so doggone important. The 9/11 Commission and
everybody else has talked about the failure of the FBI and the
CIA to talk to each other, and INS and FBI and one group of FBI
within the FBI, and so on.
To some extent, the PATRIOT Act and other changes have made
that possible, but there are a couple of provisions of this
bill that also improve on that capability of sharing
information, both with regard to Federal agencies and with
regard to State and local governments. I just wanted, even
though they are not controversial, to just illustrate why it is
so important.
One of the cases I mentioned was Khalid Al-Midhar, who was
one of the eventual hijackers who flew the plane into the
Pentagon. We had obtained some information about him. The CIA
primarily had done some surveillance in Malaysia and provided
some information to the FBI. The agent in charge grasped the
significance of a visa application that Al-Midhar had applied
for and was able to talk to and confirm with INS that he had
actually entered the United States both in January of 2000 and
again on July 4, 2001.
At that point, the FBI decided that since Al-Midhar was in
the United States, if he was, that he had better be found. That
is the point at which the wall became a problem because when
the CIA, FBI and INS people, all of whom had shared
information--when that information was put together with the
FBI request to headquarters from the New York field office that
a criminal investigation be opened which could allow greater
access to resources dedicated to search for this guy, the FBI
attorneys took the position that criminal investigators
cannot--and that word was emphasized in the original writing--
cannot be involved, and that criminal information discovered in
the intelligence case would be passed over the wall according
to proper procedures in due time.
But the agent in the New York office responded by e-mail
and here is what he said, quote, ``Whatever has happened to
this, someday someone will die. And wall or not, the public
will not understand why we were not more effective in throwing
every resource we had at certain problems,'' end of quote.
The 9/11 Commission then made the point that if he had been
found and if he had been held on immigration violations or as a
material witness, for example, investigation or interrogation
into their activities might have yielded evidence of other
connections. In any event, we will never know for sure, but at
least it could have been one of the elements that might have
been able to stop 9/11 from happening.
Well, these two sections of this legislation, first of all,
provide a uniform standard under which the FBI would
disseminate information. Interestingly enough, one of the
existing statutes anonymously placed restrictions on
information-sharing with other agencies that are greater than
the restrictions applied to non-Federal agencies. This statute
tries to make all of that uniform, make it easier and conform
basically all of the different provisions of law to each other
so that there is one standard both within the agencies and
across agencies, and then secondly to allow that information to
be shared with State and local government officials as well.
So, again, nobody has particularly talked about this.
Everybody is for it, but I just want to make the point that
these are important changes in the law and one of the reasons
why we need to get this done.
I just want to close with this, and particularly, Professor
Turley, if you want to respond to it. This is the so-called
Moussaoui fix. This was my bill and I have been so frustrated
that we haven't been able to get it passed because this is the
case where Agent Rowley in Minneapolis says this guy is
planning something and you have got to get after him, and asked
FBI headquarters.
You know, FBI headquarters has been criticized, I think, in
this case unfairly because the law is pretty clear. When you
think somebody is engaged in terrorism activities or planning
terrorism activities, you either have to show that they are an
agent of a foreign power or affiliated with an international
terrorist organization. Those are the two ways that you can get
jurisdiction to issue the subpoena, in this case for the guy's
computers. This is Zacarias Moussaoui.
Frankly, the evidence didn't exist that tied him either to
a foreign government or an international terrorist
organization. There was some information about Chechens, but it
was too loose for the FBI to go with. So I think probably
rightly, they said we can't let you look in his computer.
What the so-called Moussaoui fix does is to say that if you
have this information about someone and it is not a United
States citizen, but you have reason to believe that he is
involved in terrorism activities or planning to commit a
terrorist act, then you would be able to secure a subpoena
under FISA.
That subpoena may give you information that shows that he
actually is affiliated with a terrorist organization--he was
just acting on his own up to now--or that he is not affiliated
with a terrorist organization, but he is acting on his own and
he intends to do bad things. Or it may exonerate him. But in
any event, it does fill that particular gap. As I say, we
passed it through the Senate handily and it is still hung up in
the House.
Professor Turley, you didn't comment on the information-
sharing. I gather there is no particular controversy there, but
is there anything else that you think we ought to be doing in
this Moussaoui fix that we haven't done to make it better?
Mr. Turley. Well, thank you, Mr. Chairman. I would be more
than willing to look further at the Moussaoui issue. Of course,
as I mentioned in my written testimony, I think the fact that
this Committee is moving again to reduce those barriers between
agencies is an important thing. It is probably the greatest
lesson we learned in 9/11, is the vulnerability associated with
those barriers.
In terms of FISA, as I mentioned in my opening statement,
this is part of a larger context and we could have good-faith
disagreements on it. I tend to be something of a textualist on
the Fourth Amendment. Also, I do think it would be surprising
to the people that wrote FISA that there are more FISA
surveillance orders than conventional interceptions today under
Title III.
That is something that I think was not anticipated, and
what we have seen with FISA is a gradual change. And I am not
trying to put an evil motive on this. I mean, the fact is the
Department of Justice is facing some serious threats.
Prosecutors by their nature try to be opportunistic in trying
to use every tool that they have.
But we have seen FISA begin with the view that it was going
to be the exception rather than the rule. It was focused on
foreign powers as the critical definition and it was focused on
foreign intelligence-gathering as the important definition. We
have seen the last 3 years the move toward the use in
conventional criminal investigation of FISA, and now we see a
move away from the foreign powers.
So for the civil liberties community, I think there is a
very significant concern that FISA is becoming a circumvention
of the Fourth Amendment for all practical purposes. But as I
mentioned in my opening statement, all of that is based on a
threshold view from some of us that this entire process is
constitutionally suspect.
But I also want to be frank. Although it will shock the
Chairman, the Supreme Court has disagreed in the past and
probably would not share my view, and I think that FISA would
probably be upheld, if it was a full review, on all of its
provisions, including this one if it is added. So this is not
going to make the law unconstitutional. The issue of whether it
is constitutional or not goes to a far more basic question and
it depends upon your approach in interpreting the Constitution,
how textualist you are, how much flexibility you think there is
in the language.
Chairman Kyl. I really appreciate it, and I share Senator
Feinstein's view that you have presented very balanced
testimony, very credible, because of that. Your advice,
therefore, we all consider very valuable.
Unless Senator Sessions has anything further or unless
either of you would like to comment further, I just want to
make the point that, as legislators, we do our best to take
information and act on it. I remember when Agent Rowley came
and testified, and it was almost as if who could possibly
disagree with this proposition that that warrant should have
been issued.
When you checked it out and you realized probably that
would have gone beyond what the law really permitted, if
everybody felt this was important to do, then we needed to make
the fix. But it is important that we get wise counsel from
everybody who has an interest in this to ensure that we don't
go too far in responding to the public outcry and the law
enforcement outcry and that we don't cross over the line and
abuse somebody's rights. I appreciate your assessment that in
this case, in this very limited situation, we probably wouldn't
be doing that, whatever your views of the underlying FISA.
By the way, this also illustrates something else. We have a
lot of laws that are now used for purposes that they might not
have been originally intended for, but they do work in certain
situations.
Professor Turley, you are absolutely right. When FISA was
originally written, it did not have terrorism in mind. It was
dealing with spies who were working against our country. But it
also works in the terrorism context, and with a few little
tweaks it can be made to work better. Since that is one of the
major threats against us right now, I think it is up to us to
at least try to make it work to the best advantage of
protecting our people, again, consistent with constitutional
principles.
So if there are no other comments, let me note that Senator
Hatch's statement is going to be placed in the record. Anybody
else can put statements in the record or submit questions until
5:00 p.m., Monday, September 20. And, of course, we would hope
to get a response from any of you to those questions. And based
upon what has been said here today, if you have anything you
would like to supplement, you are certainly welcome to do that.
Again, I want to thank all three of you. Your testimony has
been very, very helpful, and I think perhaps historic in
enabling us to move forward and doing our best to add some
additional tools to fight terrorism, close some loopholes and
ensure that we have done everything that we possibly can up to
this point in time to not only provide our military with
everything it needs, but the other half of the folks that are
fighting this war on terror in the intelligence community, the
law enforcement agencies, Department of Justice, and so on;
that we give them the tools to fight the mission that we expect
them to fight as well. So, hopefully, we can move this
legislation forward and get it done before we finish up our
session here.
Senator Sessions, thank you very much.
If there is nothing further, then this Subcommittee hearing
will be adjourned.
[Whereupon, at 11:38 a.m., the Subcommittee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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