[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

                              ----------                              


                       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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