[Senate Hearing 109-49]
[From the U.S. Government Publishing Office]



                                                         S. Hrg. 109-49

A REVIEW OF THE MATERIAL SUPPORT TO TERRORISM PROHIBITION IMPROVEMENTS 
                                  ACT

=======================================================================

                                HEARING

                               before the

                 SUBCOMMITTEE ON TERRORISM, TECHNOLOGY
                         AND HOMELAND SECURITY

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                             APRIL 20, 2005

                               __________

                          Serial No. J-109-14

                               __________

         Printed for the use of the Committee on the Judiciary



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                       COMMITTEE ON THE JUDICIARY

                 ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
                       David Brog, Staff Director
                     Michael O'Neill, Chief Counsel
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director
                                 ------                                

      Subcommittee on Terrorism, Technology and Homeland Security

                       JON KYL, Arizona, Chairman
ORRIN G. HATCH, Utah                 DIANNE FEINSTEIN, California
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
JOHN CORNYN, Texas                   JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               RUSSELL D. FEINGOLD, Wisconsin
LINDSEY O. GRAHAM, South Carolina    RICHARD J. DURBIN, Illinois
                Stephen Higgins, Majority Chief Counsel
                 Steven Cash, Democratic Chief Counsel


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Cornyn, Hon. John, a U.S. Senator from the State of Texas, 
  prepared statement.............................................    28
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................    16
    prepared statement...........................................    30
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona..........     1

                               WITNESSES

McCarthy, Andrew C., Senior Fellow, Foundation for the Defense of 
  Democracies, Washington, D.C...................................     6
Meron, Daniel, Principal Deputy Assistant Attorney General, Civil 
  Division, Department of Justice, Washington, D.C...............     5
Sabin, Barry, Chief, Counterterrorism Section, Criminal Division, 
  Department of Justice, Washington, D.C.........................     2

                       SUBMISSIONS FOR THE RECORD

Cole, David, Professor, Georgetown University Law Center, 
  Washington, D.C., prepared statement...........................    19
McCarthy, Andrew C., Senior Fellow, Foundation for the Defense of 
  Democracies, Washington, D.C., prepared statement..............    31
Sabin, Barry, Chief, Counterterrorism Section, Criminal Division, 
  Department of Justice, Washington, D.C. and Meron, Daniel, 
  Principal Deputy Assistant Attorney General, Civil Division, 
  Department of Justice, Washington, D.C., joint prepared 
  statement......................................................    45

 
A REVIEW OF THE MATERIAL SUPPORT TO TERRORISM PROHIBITION IMPROVEMENTS 
                                  ACT

                              ----------                              


                       WEDNESDAY, APRIL 20, 2005

                              United States Senate,
        Subcommittee on Terrorism, Technology and Homeland 
               Security, of the Committee on the Judiciary,
                                                   Washington, D.C.
    The Subcommittee met, pursuant to notice, at 2:28 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Jon Kyl, 
Chairman of the Subcommittee, presiding.
    Present: Senators Kyl and Feingold.

  OPENING STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE 
                        STATE OF ARIZONA

    Chairman Kyl. Good afternoon. This hearing of the Judiciary 
Subcommittee on Terrorism, Technology and Homeland Security 
will come to order. We are going to get started a couple of 
minutes early because I think the reality is we are not likely 
to get very many of the other Committee members here this 
afternoon. There is a bankruptcy bill signing ceremony down at 
the White House and at least one other conflict of which I am 
aware. So I don't think it would do as much good to wait for 
other members to attend the hearing.
    I do appreciate all of the witnesses being here. Because 
there was one witness that could not attend and some of the 
members won't be here, we will leave the record open for 
additional statements or for questions to be submitted to the 
witnesses.
    This hearing this afternoon is going to focus on Senate 
bill 873, which is the Material Support to Terrorism 
Prohibition Improvements Act of 2005, a bill which I recently 
introduced with Senators Cornyn, Coburn and Sessions. With this 
hearing today, I hope that we can give this legislation a 
public airing and prepare for marking the bill up in the 
Committee.
    I am pleased to introduce the witnesses who are going to 
testify today. Barry Sabin is the Chief of the Counterterrorism 
Section of the Justice Department's Criminal Division. He 
previously served nearly a dozen years in the U.S. Attorney's 
office in Miami, Florida, where he held the positions of Chief 
of the Criminal Division, Chief of the Major Prosecutions and 
Violent Crime Section and Deputy Chief of the Economics Crime 
Section. His most recent position in that office was First 
Assistant United States Attorney.
    Also with us today is Daniel Meron. He is the Principal 
Deputy Assistant Attorney General of the Civil Division of the 
Department of Justice. Mr. Meron brings a wealth of experience 
to the legal and constitutional issues presented by the 
legislation we are reviewing today.
    Finally, I am pleased to introduce Mr. Andrew McCarthy, who 
is a Senior Fellow at the Foundation for the Defense of 
Democracies. Mr. McCarthy is a former Federal prosecutor who 
led the prosecution of the case of Omar Abdel Rahman, the so-
called blink sheik, in connection with the 1993 World Trade 
Center bombing. He has worked on a large number of other 
counterterrorism prosecutions as well.
    I thank all of you for being here today and would suggest 
that if you want to submit a statement in full, we will accept 
that. If you would like to summarize that statement, that would 
be fine. It may be that I am the only one asking oral 
questions, but as I said, if there are members of the Committee 
that have other questions, if you would be so kind, we could 
submit those to you and perhaps you could get answers to us for 
the record.
    So with that, let me start, Mr. Sabin, with you. Why don't 
I simply ask each of you to make your presentations and then we 
will have a little questioning session after that? Thank you.

  STATEMENT OF BARRY SABIN, CHIEF, COUNTERTERRORISM SECTION, 
   CRIMINAL DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.

    Mr. Sabin. Mr. Chairman, thank you for the opportunity to 
testify at this important hearing. I will focus on our use of 
the material support statutes, 18 U.S.C. Sections 2339A and 
2339B, which are at the heart of the Justice Department's 
prosecutive efforts.
    The material support statutes, as enhanced and clarified by 
the USA PATRIOT Act in 2001 and the Intelligence Reform and 
Terrorism Prevention Act just a few months ago, are critical 
features of the law enforcement approach to counterterrorism. 
These statutes recognize that there are important components of 
the terrorist infrastructure that stop short of actual attacks.
    We know from experience that terrorists need funding and 
logistical support to operate. They need to raise funds, open 
and use bank accounts to transfer money, and to communicate by 
phone and the Internet. They need travel documents. They need 
to train and recruit new operatives and procure equipment for 
their attacks.
    Thanks to Congress, the material support laws contain the 
inchoate offenses of attempting conspiracy which allow law 
enforcement the legal basis to intervene at the very early 
stages of terrorist planning several steps removed from the 
execution of particular attacks. This capability is crucial to 
the prosecution of terrorist supporters.
    A number of victories in recent months illustrate these 
powerful law enforcement tools and how they operate in 
practice. On March 10, 2005, after a five-week trial, a jury in 
Brooklyn, New York, convicted two Yemeni citizens of, among 
other charges, conspiring to provide material support to Al 
Qaeda and Hamas pursuant to 18 U.S.C. Section 2339B.
    This case clearly demonstrates two important principles. 
First, United States prosecutors and investigators, like our 
colleagues in the intelligence community and the military, must 
rely upon our international partners to be successful. The 
defendants could not have been brought to justice without the 
assistance of our German colleagues, who worked alongside the 
FBI in the sting operation and made the arrest that ultimately 
culminated in the extradition of the defendants to the United 
States from Germany. German officials testified about their 
actions in Federal court in Brooklyn.
    Second, successful indictments and prosecutions often lead 
to further successes in combatting terror. We are able to 
leverage the intelligence collected from cooperators in our 
criminal cases to discover and track down new leads and 
evidence. In the Al-Moayad trial, prosecutors presented the 
testimony of Yaya Goba, one of the convicted defendants in the 
Lackawanna case; namely, successful prosecutions beget more 
prosecutions.
    On February 10, 2005, a Manhattan jury in United States v. 
Sattar found all defendants guilty on all counts, which also 
involved material support charges. In February of this year, 
prosecutors in Detroit obtained a guilty plea from a Hizballah 
financier. The defendant, whose brother is the organization's 
chief of military security in southern Lebanon, admitted that 
he helped others raise money for Hizballah. Last year, we 
obtained a guilty plea to violations of both Sections 2339A and 
B, among other charges, from a Pakistani American involved in 
procurement, training and recruitment of a foreign terrorist 
organization.
    The operation of the material support statutes is also 
illustrated by a number of pending prosecutions. Last week, the 
Justice Department announced the unsealing of an indictment 
that made important use of Section 2339A to charge three 
individuals for their alleged participation in terrorist plots 
to attack the financial sectors in New York, New Jersey and the 
District of Columbia.
    Meanwhile, prosecutors in Miami superseded another 
indictment charging a Section 2339A violation adding Kihah 
Jayyoussi as a defendant. According to the superseding 
indictment, Jayyoussi and two co-defendants conspired to fund 
and support violent jihad abroad.
    Another Section 2339 case involves Babar Ahmad and Azzam 
Publications charged in Connecticut in October of 2004. Ahmad, 
a resident of the United Kingdom, allegedly operated and 
directed Azzam Publications and its family of Internet websites 
to recruit and assist the Chechen Mujahadeen and the Taliban, 
and to raise funds for violent jihad abroad.
    In Florida, the trial of four of the defendants in the Sami 
Al-Arian case is scheduled to begin next month on May 16. In a 
53-count indictment, Sami Al-Arian and eight other defendants, 
including Ramadan Shalla, the acknowledged worldwide leader of 
the Palestinian Islamic jihad, have been charged with using 
facilities in the United States, including the University of 
South Florida, as a North American base for the Palestinian 
Islamic jihad.
    In August of 2004, a Chicago grand jury indicted three 
defendants for participating in a 15-year racketeering 
conspiracy in the United States and abroad to illegally finance 
Hamas's activities in Israel, the West Bank and Gaza Strip, 
including providing money for the purchase of weapons and the 
inclusion of material support charges.
    These cases, plus other matters that have already resulted 
in convictions, demonstrate the manner in which we have come to 
rely upon the material support statutes. Looking to the future, 
we are confident that the amendments to the material support 
statutes passed by Congress and signed by the President in 
December will significantly enhance the capabilities of 
prosecutors to eradicate terrorist activity at every stage.
    Significantly, the definition of material support or 
resources was expanded to encompass all property, whether 
tangible or intangible, and all services, except for medicine 
and religious materials. The amendments also clarify the 
meaning of the terms ``personnel,'' ``training'' and ``expert 
advice or assistance,'' as used in the definition of material 
support or resources.
    Two other changes to the material support statutes are also 
significant. First, the recent amendments expand the 
jurisdictional basis for material support charges. Second, the 
amendments also clarify the knowledge requirement of Section 
2339B. That section now expressly says that the defendant must 
either know that the organization is a designated foreign 
terrorist organization or that it engages in certain terrorist 
conduct.
    The Intelligence Reform Act also created a new material 
support offense, Title 18 United States Code, Section 2339D, 
that explicitly criminalizes the receipt of military-type 
training from a foreign terrorist organization.
    The amendments to the material support statutes contained 
in the Intelligence Reform and Prevention Act of 2004 are 
currently scheduled to sunset at the end of 2006. These 
amendments are critical to maintaining the efficacy of the 
material support statutes as a potent prosecutorial tool in 
combatting terrorism. The Department therefore supports making 
these revisions to the material support statutes permanent, and 
we commend you for introducing the Material Support to 
Terrorism Prohibition Improvements Act, which would do just 
that.
    The proposed legislation also contains another important 
provision which the Department strongly supports. Under current 
law, those aliens who have received military-type training from 
or on behalf of a terrorist organization may be deported from 
this country. Such aliens, however, are not inadmissible. This 
anomaly in the law does not make any sense and the proposed 
legislation would fix this problem by rendering inadmissible 
those aliens who have received military-type training from or 
on behalf of a terrorist organization. The proposed legislation 
also contains other worthwhile provisions, and the Department 
looks forward to working with you and other Committee members 
on this important piece of legislation.
    The changes recently enacted in the Intelligence Reform Act 
have built upon and enhanced the work of prior Congresses. 
Together, this legislation has provided law enforcement and 
prosecutors with a solid framework within which to pursue the 
goal of prevention, disruption and eventual eradication of 
terrorism within our borders and beyond.
    We as prosecutors in the Justice Department have more work 
to do to eliminate this deadly threat, and we urge you in 
Congress to continue to build upon and enhance the legal tools 
needed to accomplish our mutual goals.
    Mr. Chairman, thank you again for inviting us here and 
giving us the opportunity to discuss how the material support 
statutes are being used in the field to fight terrorism. 
Together, we will continue our efforts to defeat those who 
would harm this country.
    Chairman Kyl. Well, Mr. Sabin, I appreciate that statement 
very much. Thank you.
    Dan Meron.

STATEMENT OF DANIEL MERON, PRINCIPAL DEPUTY ASSISTANT ATTORNEY 
  GENERAL, CIVIL DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON, 
                              D.C.

    Mr. Meron. Thank you, Mr. Chairman. Thank you very much for 
inviting me here today to testify on the subject of the 
Material Support Terrorism Prohibition Improvements Act that 
you recently introduced.
    The material support to terrorism prohibitions that are 
codified in 18 U.S.C. Sections 2339A and 2339B are the product 
of a strong bipartisan consensus that in order effectively to 
fight the war against terrorism, you have to attack terrorism 
at its source. These provisions do that by preventing groups 
from raising money and obtaining the property, personnel and 
expertise necessary to commit their terrorist acts.
    As you know, Mr. Chairman, Section 2339B, which prohibits 
the provision of material support or resources to designated 
foreign terrorist organizations, was signed into law by 
President Clinton in 1996, and the constitutionality of this 
provision in its original form was vigorously defended by the 
Department of Justice under Attorney General Janet Reno.
    In 2000, the United States Court of Appeals for the Ninth 
Circuit broadly upheld the constitutionality of this provision 
against a series of legal challenges. The Ninth Circuit 
squarely rejected the claim that the statute impermissibly 
imposed guilt by association, and likewise held that the 
Constitution did not require proof that the accused had the 
specific intent of aiding the terrorist organization's unlawful 
purposes.
    As the Ninth Circuit explained, this provision prohibits 
the act of giving material support, not speech, and there is no 
constitutional right to facilitate terrorism. Any incidental 
burdens on speech, the Ninth Circuit held, were not necessary 
to achieve Congress's purposes. In December of last year, the 
en banc court reaffirmed those critical holdings.
    In separate decisions in 2000 and 2003, however, the Ninth 
Circuit held that the terms ``personnel'' and ``training'' in 
the Act's definition of material support or resources, which 
were not at the time defined in the Act, were 
unconstitutionally vague. Although the Department of Justice 
had given those terms narrowing constructions that we believed 
addressed any constitutional vagueness problems, those 
narrowing constructions were not contained in the statute and 
were not legally binding on the Department.
    As you know, Mr. Chairman, in the Intelligence Reform and 
Terrorism Prevention Act of 2004, Congress directly addressed 
the Ninth Circuit's concerns with the potential vagueness of 
the provision. Specifically, in Section 6603 of that Act, 
Congress provided specific definitions for the terms 
``training'' and ``expert advice and assistance.'' Congress 
also adopted a proviso that made clear that no individual could 
be convicted of providing personnel to a terrorist organization 
unless that person knowingly provided one or more individuals, 
including himself, to work under the organization's direction 
and control.
    Congress's action providing these definitions was a 
responsible and considered response to the judicial branch's 
constitutional rulings and reflects a highly productive 
cooperation between the executive and legislative branches on 
this matter.
    Those amendments had an immediate beneficial effect. In 
light of those provisions, last December the en banc Ninth 
Circuit Court vacated the injunction that had previously been 
in place regarding the terms ``personnel'' and ``training,'' 
and more recently on April 1 of this year vacated the district 
court's injunction regarding ``expert advice and assistance.'' 
The sufficiency of these definitions are now before the 
district court for a fresh look in light of Congress's 
amendments, and we are confident in the strength of our 
position that these provisions are constitutional.
    Unfortunately, as you also know, Senator Kyl, Section 6603 
of the 2004 Act is set to sunset at the end of this calendar 
year. Allowing those provisions to sunset would, we believe, be 
a grave mistake because the language in the Act would then 
revert to the language that the Ninth Circuit had held was 
unconstitutionally vague. Indeed, even before that point, the 
very existence of a sunset provision undermines the beneficial 
impact of these definitions on the certainty and clarity of 
these legal prohibitions.
    For these reasons, the Department of Justice strongly 
supports the provision in Senate bill 783 that would make 
permanent the amendments contained in Section 6004 of the 
Intelligence Reform Act.
    Once again, Mr. Chairman, I thank you for inviting me to be 
here today and I look forward to answering any questions that 
you may have with regard to the constitutional challenges that 
have arisen with respect to these provisions.
    [The joint prepared statement of Messrs. Sabin and Meron 
appears as a submission for the record.]
    Chairman Kyl. Thank you, Mr. Meron. That is very helpful.
    Mr. McCarthy.

STATEMENT OF ANDREW C. MCCARTHY, SENIOR FELLOW, FOUNDATION FOR 
          THE DEFENSE OF DEMOCRACIES, WASHINGTON, D.C.

    Mr. McCarthy. Thank you, Mr. Chairman. Thank you for 
inviting me here this afternoon. It is an honor to testify here 
in connection with a matter of such importance to our national 
security.
    From a time shortly after the World Trade Center was bombed 
in February of 1993 through early 1996, I was privileged to 
lead the prosecution against Sheik Omar Abdel Rahman and 11 
others for conducting against the United States a war of urban 
terrorism that included, among other things, the World Trade 
Center bombing and a conspiracy to carry out what was called a 
day of terror, a plan for simultaneous bombings of New York 
City landmarks that was thwarted by the dedicated work of the 
FBI and the New York Joint Terrorism Task Force.
    I also worked on some of our office's other major terrorism 
prosecutions and helped run the command post near Ground Zero 
in lower Manhattan in the wake of the 9/11 attacks. So while I 
have not been in the trenches for a few years, it is from the 
trenches that I come. And it is from that perspective that I 
thank this Committee and you, Mr. Chairman, and Congress for 
its tradition of strong bipartisan support in ensuring that law 
enforcement has the tools it needs to protect our national 
security.
    It was in that tradition in 1996 that we first received the 
desperately needed material support statutes that the Committee 
is considering today. And it is in honoring that tradition that 
I respectfully and enthusiastically urge the Committee to 
support the proposed bill, the Material Support to Terrorism 
Prohibition Improvements Act of 2005.
    The proposed bill focuses on what are two of the most 
critical aspects of our national struggle to defeat the network 
of Islamic militants that is waging war against us: first, the 
need to beef up the statutory arsenal that enables law 
enforcement to stop attacks at an early stage before they 
endanger Americans, and, second, the need to recognize that 
threat posed by para-military training.
    Where terrorism is concerned, the object for law 
enforcement and for the rest of Government must always be to 
prevent attacks from happening rather than simply bringing 
terrorists to justice only after mass murder has occurred. This 
is a lesson we have learned gradually and painfully in the 
years of terrorist attacks between the World Trade Center 
bombing and the 9/11 atrocities eight years later.
    Early on, Federal law was just not up to the task of a 
mission aimed at anticipatory prevention and disruption rather 
than post-incident investigation and prosecution. While the law 
severely punished completed acts of terrorism, especially if 
the loss of life resulted, it also featured gaps in enforcement 
and grossly insufficient penalties, severely challenging law 
enforcement's ability to strangle plots in the cradle and cut 
off the supply lines on which terror networks thrive.
    The 1996 legislation, including the material support 
statutes this Subcommittee is again considering today, both 
ratcheted up the penalties for terrorism-related crimes and, 
perhaps more significantly, gave prosecutors urgently needed 
tools designed to root out terrorist plots at an early stage, 
shut down funding channels and place a premium on preventing 
terrorist acts rather than simply prosecuting them afterwards.
    While it is true that the greatest threats we face come 
from the front-line operatives who are actually willing to 
carry out terrorist attacks, we have learned the hard way that 
those terrorists cannot succeed without support networks--
people and entities willing to fund them, to train them, to 
provide them with fraudulent documents to facilitate their 
travel, and to provide them with other assets that they need to 
carry out their savagery.
    It is not surprising then that the material support laws 
have become the backbone of the Justice Department's prevention 
strategy, which I believe is one of the critical reasons why we 
have not had a domestic terror attack in the United States 
since September 11, 2001.
    Some court decisions which cast doubt on the 
constitutionality of the statutes threaten to dilute the 
effectiveness of material support laws in protecting public 
safety. This Congress promptly responded last year with needed 
action to cure the alleged defects, particularly clarifying 
statutory terms that some courts had found void for vagueness.
    That legislation promoted national security and due 
process, the former by maintaining material support as a 
powerful tool, and the latter by ensuring that we are clear on 
exactly what conduct is prohibited. But these improvements were 
sunsetted and if they are allowed to lapse, both national 
security and due process would be compromised. Sunsets also 
create a climate of uncertainty which could hamper current 
enforcement.
    The proposed bill would make the 2004 improvements 
permanent, and for that reason alone I respectfully suggest 
that it would merit the Committee's support. But the bill also 
has other beneficial features. In my mind, the most important 
is a clear-eyed recognition of the dangers posed by para-
military training. This is a much under-appreciated aspect of 
the terrorist threat. It runs like a thread through every 
attack we have faced. It is the reason basis for fearing 
sleeper cells inside our country.
    Current expert estimates suggest that as many as 70,000 
people may have undergone Training in the Al Qaeda camps. This 
training is known to include commando attacks, the use of small 
and large firearms, the construction of explosives, techniques 
for neutralizing sentries and various other maneuvers necessary 
for carrying out bombings, hijackings and other varieties of 
attack. The bill addresses this serious problem by proposing to 
tighten up our immigration laws and enhancing criminal 
penalties to protect the American people from what we know to 
be the perils of this threat.
    I thank the Committee again for inviting me here. I thank 
you, Mr. Chairman, and I thank you and the Congress for taking 
the time to consider this important legislation.
    [The prepared statement of Mr. McCarthy appears as a 
submission for the record.]
    Chairman Kyl. Well, thank you, Mr. McCarthy, and I thank 
all of you for being supportive of our efforts here to extend 
the material support statute. When I ask these questions, if 
any of you would like to comment, please feel free to do so, 
but I am going to direct a couple of them to specific 
individuals simply because you have made reference to certain 
items.
    One of the points, Mr. McCarthy, you just made is, if I 
gather this correctly, that because cases take a while to 
develop and prosecute, you could end up with a situation where 
not only is there a climate of uncertainty, but you could 
actually have a break in the continuity of the applicable 
statute during the course of a particular prosecution.
    How real are these dangers of lack of certainty? Some 
opponents say, well, it is premature; we don't need to extend 
these statutes yet, we need to get more experience with them, 
and so on. That is kind of the argument that is made here. 
Address that argument, if you would, in the context of your 
testimony.
    Mr. McCarthy. Yes, Senator. When I used to do what these 
gentlemen sitting beside me do for a living, two of the things 
that you really wanted to have when you indicted a case was 
evidentiary certainty--you wanted to make sure that the things 
you thought you could prove, you could actually prove--and the 
other thing is legal certainty.
    In terms of enforcement efforts, the prosecutor wants to 
know, in many ways like the defendant wants to know, if the law 
at the time of charge, if the law at the time of indictment is 
going to be the same law that applies at the time of trial. 
Creating a climate of uncertainty around the charging decision, 
I think, is something that could seriously hamper enforcement 
efforts.
    I also think that the comparison that I have seen some make 
between the record of what has gone on under the PATRIOT Act, 
where we have had three-and-a-half years to take a look at what 
happened there without considering the sunset provisions, is 
importantly different from the sunset provisions here.
    With respect to the PATRIOT Act, the sunset provisions are 
about investigative techniques. As a law enforcement person, 
you are never comfortable in a situation where you don't know 
whether what you are doing today will still be considered legal 
a year from now or two years from now. But with investigative 
techniques, the problem is somewhat limited.
    When you are talking about the substantive law that will 
actually apply to people, I think it is critically important 
for the Justice Department to know that the laws that it is 
making prosecutive decisions on today, the laws that it is 
charging people with, the substantive law that is going to 
apply to a case is the same at the time of indictment as it 
will be at the time that the case has to be tried.
    Chairman Kyl. Great point.
    Now, Mr. Meron, I think this question is first addressed to 
you, but I think in view of the string of examples, Mr. Sabin, 
you gave to the Committee, you might want to relate to this as 
well.
    Two parts, really, to the question, one related to your 
comments about the Ninth Circuit decision, in which you have 
got an injunction vacated now, the district court still to take 
a look, in view of the circuit's opinion, to see whether there 
is any further action to be taken. But what would sunset, as 
you point out, if we were not to extend the statute are these 
definitions which have been very useful in answering the 
court's original determination of unconstitutionality by 
providing the texture through definitions of what we really 
mean by these terms, ``personnel'' and ``training.''
    The thought occurs to me, why wouldn't anybody want those 
definitions to continue if the court has, A, found them useful 
and constitutional; and, B, if you allowed the statute to 
sunset, you would be right back into a situation of 
unconstitutionality again.
    And then part two: isn't it similar with respect to Section 
2339B where you have got a particular terminology in the 
statute now saying that the activities covered by that should 
not be applied or construed so as to abridge the exercise of 
First Amendment rights, specifically saying you need to do this 
with reference to those constitutional rights? If that is 
sunsetted, you wouldn't have that kind of important provision 
in the statute now protecting people's individual rights.
    So in both of these two cases, it seems to me we have got, 
through court ruling and then subsequent action by Congress and 
the original language that we put in the statute, important 
protections that we want to maintain and that would ironically 
be eliminated if the sections were allowed to sunset.
    Mr. Meron. Senator Kyl, I couldn't agree more. I think it 
is very strange to oppose making these provisions permanent in 
light of those judicial decisions. The one thing we know for 
sure is that the language that existed before these amendments 
had been declared unconstitutional by the court of appeals.
    It is from our perspective very strange to have a law right 
now where, in the absence of further action by Congress, you 
are going to revert automatically to language that the courts 
have held to be unconstitutional. It doesn't seem right, it 
doesn't seem responsible.
    We strongly believe that the language that was added in the 
amendments makes the language sufficiently specific and clear. 
It is clearly constitutional on its face, and the courts remain 
ready to consider any challenge by any particular defendant to 
the constitutionality of these provisions as they may or may 
not be applied in a particular case. So there are ample 
constitutional protections and safeguards.
    As you said, the one thing we know for sure is that the 
impact of these definitions has been to move in the direction 
of making the terms more narrow and more circumscribed. And why 
you would object to making those permanent on the mere 
possibility that in the future a court might want you to go 
even further in that direction is somewhat beyond me.
    Chairman Kyl. Mr. Sabin, you identified a series of 
important cases in which the material support statute had been 
effective for law enforcement in helping to prosecute would-be 
terrorists. There are some organizations that argue that they 
are broad in their scope. I think of groups like Hamas and 
others who perhaps would argue that, well, there are dual 
purposes to these organizations and it is very difficult to 
differentiate the activities which are sought to be proscribed 
this legislation versus those that are humanitarian in purpose, 
and so on, and that you are not able to make those distinctions 
in the enforcement of the statute. Therefore, I don't know 
whether they would argue it is a vagueness issue in a 
constitutional sense or simply not a good idea as a matter of 
law enforcement to try to attack the problem at its source, as 
you have said.
    How do you respond to those who use this argument that you 
are affecting the good behavior of some of these organizations 
with an overly broad attack on support for them?
    Mr. Sabin. Congress has clearly and unequivocally spoken to 
that point, Mr. Chairman. In designing the regimen of 2339A and 
B, the material support statutes, the language of the statute 
and congressional intent has indicated that the entire 
logistical support network, not only the person that is seeking 
to be the bomb-thrower or the operational individual, but the 
person who is funding or recruiting or the like, should be 
equally responsible.
    The idea that you can free up certain resources--because 
these material support items are fungible for purposes of 
Hamas's humanitarian mission for school or social services, it 
frees up those resources which are devoted to its military 
wing. Congress has been very clear. The international community 
has followed or is in the process of following Congress's 
leadership in that regard to say that we will not allow the 
purposes of the donors' intent to be a factor in the 
application of the material support statutes.
    Otherwise, you would have an escape hatch in Section 2339B 
which would go directly against congressional intent. The idea 
that Congress has set forth a list under 2339B of 40 foreign 
terrorist organizations that are radioactive and to provide 
that support in whatever form of resources or services should 
not be countenanced--it is clear to the public so that the 
public can take knowing and transparent actions. It is clear in 
terms of how we apply that in the courts of law. And to inject 
uncertainty in that, springboarding on the other responses, I 
think is directly contrary to the effectiveness of those 
statutes and the viability of the material support statutes 
going forward.
    Chairman Kyl. Has any court ever determined the statute 
overly broad based upon that particular argument as far as you 
know?
    Mr. Sabin. No, not that I am aware of. There is language 
out there regarding intent, and the Intelligence Reform Act 
clarified that specific intent is not the requirement, which 
would feed into that kind of escape hatch argument under 2339B. 
But I think the language in the Intelligence Reform Act 
specifically recognizes that it is knowing that the foreign 
terrorist organization has been listed, or the fact that they 
have been engaged in violent activity, rather than that 
activity would be used to further the particular goals and that 
would not inject a humanitarian argument in that regard.
    Chairman Kyl. Right. Those are the two specific knowledge 
requirements there, or alternative knowledge requirements.
    Mr. Sabin. Yes, sir.
    Chairman Kyl. Either Mr. Meron or Mr. Sabin, could you 
quantify for the Committee the number of times that the 
Department of Justice has prosecuted for support of material 
terrorism or the number of convictions that have been obtained?
    Mr. Sabin. Yes. My understanding is that there have been 96 
material support prosecutions in 21 different districts. More 
broadly, relating to terrorist financing, which would include, 
for example, the International Emergency Economic Powers Act, 
the numbers go to 135 prosecutions and 70 convictions. To the 
extent that you require additional details or specificity in 
that regard, we would be happy to provide that to the 
Committee.
    Mr. Meron. Senator Kyl, if I may add one thing to the 
answer to the prior question, in fact, on the issue of the 
breadth of the coverage of the provision, that is an issue on 
which the full Ninth Circuit en banc court unanimously ruled 
that there was no constitutional problem, that you did not have 
to have any requirement that the person intended to assist the 
unlawful purposes of the organization.
    They adopted in full an earlier analysis of a panel which 
had made the very point that Mr. Sabin had made that goods are 
fungible, money is fungible, and that Congress may 
constitutionally attack the problem adequately by covering all 
contributions.
    Chairman Kyl. I appreciate that. Now, I am trying to look 
at this from a broad perspective and Mr. McCarthy has already 
related to one aspect of this, but let me just ask all of you, 
if we fail to extend the provisions that we have been 
discussing here today and if we allow this Act to sunset, what 
kind of impediments is that going to place in the way of our 
investigation and prosecution of support for terrorists?
    Mr. Sabin. I think it would have a dramatic effect, along 
with other key provisions of the PATRIOT Act, such as the 
information-sharing under Sections 203(b) and (d) and the like. 
These are critical to the manner not only in which we bring 
criminal prosecutions, but the ramifications of how we operate 
on a daily basis.
    The idea that we have moved from reacting to a particular 
incident to a prevention mindset, the ability to work in a task 
force approach, the ability to have prosecutors involved 
earlier on in the investigatory process, the ability to have 
the flexibility to bring criminal and intelligence tools to 
bear on a particular matter, are all emanating from the fact 
that these and other provisions should not sunset.
    Investigators have been relying upon it to work together to 
achieve the desired results of prevention. The material support 
statutes have been the key to that early detection and 
prevention aspect. In case after case, that has been our 
mandate and our mission, and I think it would be a significant 
deterrent effect to law enforcement and the national security 
officials' ability to effectively do what the American public 
expects and demands of us and it would have significant and 
negative dramatic effects.
    Mr. Meron. And, Mr. Senator, what it would mean is within 
the entire geographic territory of the Ninth Circuit, which is 
a very large territory, as you know, the injunctions would then 
come back to life prohibiting enforcement of personnel, 
training, expert advice and assistance. So even the core type 
of conduct that I think everyone would recognize--training a 
terrorist in making a bomb, for example--would be enjoined. The 
enforcement of that provision would be enjoined.
    Chairman Kyl. One of the questions I have always had is how 
we deal with the financing, and especially this method of 
financing that has been involved coming from the Middle East in 
particular, the so-called hawallas.
    Are there any other tools that any of you would deem useful 
in efforts to curb the illicit use of this method of 
transferring funds?
    Mr. Sabin. Section 373 of the PATRIOT Act changed the 
intent standard relating to illegal money-transmitting devices. 
That has been extraordinarily helpful for us in bringing cases 
around the country from Massachusetts to Northern Virginia, 
last week in Detroit and elsewhere, the ability to use what is 
now codified as Title 18, Section 1960, to address the hawalla 
aspects.
    I think that some provisions relating to obtaining tax 
return information, and talking to our colleagues in the joint 
terrorist task force about the ability to obtain expeditiously 
and appropriately taxpayer return information, are some areas 
which we can improve the ability for investigators to 
understand the information and bring terrorist financing cases 
to bear. So we can work with the Congress in that regard to get 
specific recommended legislative initiatives.
    Chairman Kyl. I have always wondered how we deal better 
with that particular problem. Let me just say that your answer 
prompts me to suggest that if there are ideas that any of you 
have or you become aware of that you think would be useful in 
the preparation of additional legislation, it is important that 
we receive those ideas because, clearly, the terrorist 
organizations are very good at adapting to our techniques. And 
whatever we are able to do to investigate and prosecute today's 
terrorists, tomorrow terrorists are going to figure out a way 
around. So as there is adaptation or unique methods of 
operating here, it is useful for us to be able to continue to 
allow the law to evolve as well.
    One of the statements in the written testimony of law 
professor David Cole, who couldn't be here today, is--and I 
will just quote it; it is on page 6 of his statement. ``Section 
3 of the bill would deny entry to any foreign national who is a 
member of an undesignated terrorist organization, subject only 
to a largely meaningless defense.''
    Was it you, Mr. Sabin, that was addressing the asylum and 
entry provisions?
    Mr. Sabin. Yes.
    Chairman Kyl. Is this too broad? He uses the example of a 
member of the Israeli army as an example of somebody that might 
be denied entry under this particular provision. Do you think 
that is true, and if not, why not?
    Mr. Sabin. I think the anomaly that exists that individuals 
who are here and can be removed from the country can somehow 
have the opportunity to enter into the United States is a 
disconnect and that we should seek to address it.
    In terms of having focused and constitutionally appropriate 
language, we are willing to work with the Committee in order to 
address that important goal. But the national security 
imperative that individuals are able to come across our border 
when we know that they have trained in terrorist military-style 
training camps, I believe, is an important issue that should be 
addressed through our immigration laws.
    I think that the proposed legislation as to both designated 
and undesignated groups is also an important aspect because the 
administrative process to get certain groups that are emerging 
and quickly identify them to be labeled in terms of a list 
approach takes time.
    We can provide some examples to the Committee by which 
individuals went to a military-style training camp that we 
understood to be, in retrospect, military training, but was not 
designated at the time, but ultimately became designated. That 
is a gap that should not exist in the law.
    So in direct answer, I think it is an important legislative 
initiative. We would support clarifying language--I haven't 
read Professor Cole's testimony, but to address those concerns, 
but to make sure that that gap is closed.
    Chairman Kyl. Mr. McCarthy.
    Mr. McCarthy. Just to echo what Mr. Sabin said, two things, 
and I tried to describe this in more detail in the statement I 
submitted to the Committee. The bombers of the World Trade 
Center in 1993 trained right here in the United States in 1988 
and 1989. They didn't have a designation. They weren't members 
of a particular organization. It was an ad hoc group that was 
training in the United States.
    The same is true of the group that sought to carry out what 
I referred to as the day of terror plot. They trained in 
western Pennsylvania and in a public park in New Jersey. It is 
absolutely essential that we fashion a provision such as what 
is fashioned in the proposed bill that captures those sleeper 
cells because they are the ones that not only do we need to 
figure in a speculative sense are the bigger threat to us. We 
know because we have seen it before--it has happened before--
that these are exactly the types of cells that we need to 
capture.
    The other thing is trial lawyers like to say to juries that 
you shouldn't check your common sense at the door when you come 
into the courtroom and to the jury box. The escape provision 
that Professor Cole refers to as meaningless actually requires 
or says that the foreign national can demonstrate by clear and 
convincing evidence that he did not know and should not 
reasonably have known that the organization was a terrorist 
organization.
    I frankly just don't see how anyone behaving reasonably 
could conceivably think of the army of a foreign national that 
is an ally of the United States that we have treaty and trade 
relations with and various other relations with could be 
confused as a terrorist organization. I just don't think that 
is reasonable.
    Chairman Kyl. Mr. Meron.
    Mr. Meron. Mr. Senator, the provision that Professor Cole 
is complaining about is not a provision that your proposed bill 
changes. It is the preexisting law, and the only thing which 
your bill does which is very important is it eliminates a 
disparity between the standards for admissibility and 
deportation.
    From the perspective of the Civil Division, which is the 
entity within the Department of Justice that litigates the 
immigration cases, relying exclusively on deportation rather 
than inadmissibility is a significant impediment. It takes a 
long time to go through the entire deportation proceedings for 
someone who is already in this country. There is a bit of a 
catch-22, which is that the longer they are able to stay, the 
more of a reliance interest the courts deem them to have in the 
United States, the more protected rights they are held to have. 
So there is really no justification for that kind of disparity. 
That is the only thing your bill does.
    Another way of putting the point Mr. McCarthy put is there 
are conscientious officers within the Department of Homeland 
Security who implement the immigration laws. They use common 
sense in doing so. There are a array of judicial review 
provisions that apply under existing laws that your bill does 
nothing to remove.
    Chairman Kyl. I just would observe, too, that our 
Subcommittee has held hearings on different aspects of this 
phenomenon that you have got a new type of entity here. It is 
not like the old Red Brigade or some of these other--you almost 
had to have a membership card. The would-be terrorists today 
frequently aren't signed up with any particular group, and the 
groups themselves are very amorphous and it is more of a 
brotherhood, one person helping another, not necessarily signed 
up as a particular terrorist organization.
    While some are in existence and can be put on a list, there 
are a lot of other folks that are simply not working within 
that construct, which is one reason that we had to adopt the 
so-called Moussaoui fix. With Zacarias Moussaoui in the news 
these days, I think it is relevant to note that at the time 
that the warrant was sought to look into his computers, we 
weren't sure we could identify him with a particular terrorist 
group. Yet, there was good information that he was engaged in 
terrorist training.
    So in this whole notion of trying to adapt to the 
circumstances of terrorism, a rather new phenomenon here, we 
shouldn't be so bound up in the ways of the past and the 
definitions in our law that we don't acknowledge this 
phenomenon and both write and interpret our laws in a way that 
we can be flexible enough to deal with it.
    I think I just have a couple of more questions here, but 
one of the questions had to do with the penalties under 2339A 
and B. The sentence of five years for material support offenses 
and a minimum of three years for receiving military-type 
training--are these penalties out of the mainstream? Are they 
appropriate to the type of offenses, in your view?
    Mr. McCarthy. I think, Senator, for the most part they are. 
The one exception I would say would be 2339A. It seems to me 
that if we know--and this is what a jury finding of conviction 
on a count like that would say--if we know that somebody has 
knowingly and intentionally contributed to an act of terrorism, 
so you don't even have the situation where somebody said, well, 
gee, whiz, I thought I was giving to Hizballah's social 
security wing--if we have a situation where the bottom line is 
we are saying that somebody intentionally contributed to the 
furtherance of an actual brutally violent terrorist attack, it 
strikes me that it is insufficient to say that five years does 
the trick for that.
    Chairman Kyl. Back to this other issue, and it is kind of a 
broad question, but the whole question of designating terrorist 
groups. Some people criticize this process and therefore it is 
a basis for criticizing the fruits of that process which are 
involved in this legislation.
    What is your take on the process for designating the 
terrorist groups? Is it adequate?
    Mr. Sabin. Courts have specifically found that it is 
consistent with due process and there are no constitutional 
infirmities. The D.C. Circuit Court specifically held in that 
regard.
    The Intelligence Reform and Prevention Act modified some of 
the time periods for the redesignation, as well as the 
phenomenon that we have seen of groups taking on an alias. The 
way some targets of our operations have changed the cell phones 
that they use, the organizations have changed their names in 
order to possibly avoid the foreign terrorist organization 
designation list.
    So the ability to not unduly burden the Government for 
every two years going through that redesignation process, as 
well as every time the name changed regarding an alias, is sort 
of an inside-baseball, important contribution that is in the 
Intelligence Reform Act and we applaud the Congress in that 
regard. The challenges have been brought by groups, and 
consistently the courts have said it is consistent with due 
process.
    Chairman Kyl. It kind of goes back to that notion about you 
don't check your common sense at the door. When you are dealing 
with terrorists, with a group of very clever people who 
continually evolve, as I said before, it seems to me that we 
have to be nimble as well. This statute combines a recognition 
of that with, nevertheless, sound responses to the questions of 
constitutional law that have been raised and at least in one 
case adjudicated.
    It would be a shame to sunset for both the reason that we 
have got a good statute here that has been used as much as it 
has to very good effect and in view of the consequences of its 
sunsetting on our investigative techniques, as well as, 
ironically, the notion that some of the protections that have 
been built into it would be eradicated were it to be sunsetted.
    So it seems to me that you three gentlemen have made a 
strong case for continuing this important tool in our war 
against the terrorists. It would be my desire to move the 
support for continuing the statute in existence forward.
    I was just about to end here, Russ. If Senator Feingold 
would now like to either make a statement or ask you some 
questions, he is certainly able to do that, but I am finished 
with my questions.

 STATEMENT OF HON. RUSSELL D. FEINGOLD A U.S. SENATOR FROM THE 
                       STATE OF WISCONSIN

    Senator Feingold. Thank you, Mr. Chairman. I am sorry I 
didn't get here earlier. A vote is starting right now. I will 
just be brief. Thank you so much.
    I am glad this hearing is focused on the very important 
material support issue. This is one of the provisions of the 
USA PATRIOT Act that has actually been struck down as 
unconstitutional. So certainly I agree it is worthy of 
attention.
    However, I am disappointed that this hearing is focused on 
the expansion of the material support statute and related laws, 
rather than also examining the problems with that statute. As I 
noted last fall when the intelligence reform conference passed 
the Senate, I am very concerned about the material support 
provision contained in that legislation. Of course, the 
legislation did take steps to cure the constitutional defects 
in the law. It responded to a Federal court that ruled last 
year that Section 805 of the PATRIOT Act, criminalizing the 
provision of expert advice or assistance to a terrorist 
organization, was vague and therefore violated the First 
Amendment.
    But I am not convinced that these provisions actually cure 
the constitutional flaws. Most significantly, the statute still 
does not have an adequate intent requirement. Mr. Chairman, 
given the continuing constitutional problems with this law, we 
should not be eliminating the sunset or increasing the 
penalties for material support. We don't know yet how this new, 
revised provision will work or what problems might arise 
because of this. So this hearing is a first step and I 
appreciate that, but I do want to say we have much work to do.
    Mr. Chairman, just one question.
    Mr. Sabin and Mr. Meron, the material support provision 
requires knowledge on the part of the accused that the 
organization in question is a designated terrorist organization 
or that it has engaged or engages in terrorism. It does not, 
however, require any intent to further the terrorist goals of 
the organization or to further the commission of unlawful acts.
    I understand and appreciate the need to be able to arrest 
and prosecute those who intend to do us harm as early as 
possible in their planning, but I am concerned that this could 
sweep in people who are actually trying to prevent terrorism or 
trying to help innocent civilians.
    So, first, does the Department of Justice believe that 
providing peace-making and conflict resolution advice to a 
designated organization is barred by the material support 
statute?
    Mr. Sabin. With respect to your comment, Senator, the 
intent provision, we believe, as articulated in the Ninth 
Circuit opinion and as adopted in the Intelligence Reform and 
Prevention Act, is the appropriate standard. It provides, 
consistent with legislative intent and consistent with the 
framework that Congress set up, that we should not only go 
after the person who is operational, but the person who is 
writing the check, regardless of the humanitarian or military 
purposes of that organization.
    So once they have been designated, they are radioactive. 
And as long as that individual knows that they have been 
designated or knows of the violent activities, we should not 
have, as I talked about earlier, an escape hatch under Section 
2339B so that that donor's intent can somehow prove not 
violative of the statute. So I think it would be substantially 
hindering our ability to use the backbone of our prosecutorial 
efforts to expand that.
    Senator Feingold. So the answer is a person is still 
potentially included if they are providing peace-making and 
conflict resolution advice? That is what I asked. Does the 
Department of Justice believe that providing peace-making and 
conflict resolution advice to a designated organization is 
barred by the material support statute?
    Mr. Sabin. It depends. For example, if there was a lawyer 
that wanted to provide that kind of assistance, there is now a 
provision, as passed in the Intelligence Reform Act, 2339B(j), 
that enables the individual to seek clarity for providing that 
type of assistance.
    Senator Feingold. So there are certain narrow exceptions 
that would be allowed?
    Mr. Sabin. Correct.
    Senator Feingold. Does the Department believe that 
humanitarian organizations providing tsunami relief in parts of 
Sri Lanka controlled by the Tamil Tigers violated the material 
support statute?
    Mr. Sabin. It would depend again on the particular 
application. If you were working under the direction and 
control and you knew that that group was engaged in violent 
activities, it could be a violation of the statute. However, if 
it was something that is protected under the application of 
2339B(j), then it would not be our exercise of prosecutorial 
discretion to bring that person into the criminal justice 
system. So, again, it is going to depend upon the specific 
facts that are involved.
    Senator Feingold. Well, I appreciate those answers and they 
help me understand it. My understanding of the notion of 
vagueness, however, is that a person needs to have some sense 
in advance of whether they are violating the law or not. 
Otherwise, it is vague, and our continued conversations about 
this should be in that spirit, whether these provisions really 
do give a person adequate notice that they may be doing 
something that they shouldn't be doing.
    Mr. Chairman, I know I came in here late. I look forward to 
working with you on this issue. Thank you, Mr. Chairman.
    Chairman Kyl. Thank you.
    Again, I want to thank all of the witnesses. I don't know 
how many days we will leave this record open, but if anybody 
has questions or if you would like to submit anything else for 
the record, you are certainly entitled to do that. I want to 
thank you again for your testimony here today. I appreciate it.
    [Whereupon, at 3:24 p.m., the Subcommittee was adjourned.]
    [Submissions for the record follow.]

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