[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
IMPLEMENTATION OF THE USA PATRIOT ACT: PROHIBITION OF MATERIAL SUPPORT
UNDER SECTIONS 805 OF THE USA PATRIOT ACT AND 6603 OF THE INTELLIGENCE
REFORM AND TERRORISM PREVENTION ACT OF 2004
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
MAY 10, 2005
__________
Serial No. 109-13
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
______
U.S. GOVERNMENT PRINTING OFFICE
21-139 WASHINGTON : 2005
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800
Fax: (202) 512�092250 Mail: Stop SSOP, Washington, DC 20402�090001
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona ADAM SMITH, Washington
MIKE PENCE, Indiana CHRIS VAN HOLLEN, Maryland
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, Chief of Staff-General Counsel
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on Crime, Terrorism, and Homeland Security
HOWARD COBLE, North Carolina, Chairman
DANIEL E. LUNGREN, California ROBERT C. SCOTT, Virginia
MARK GREEN, Wisconsin SHEILA JACKSON LEE, Texas
TOM FEENEY, Florida MAXINE WATERS, California
STEVE CHABOT, Ohio MARTIN T. MEEHAN, Massachusetts
RIC KELLER, Florida WILLIAM D. DELAHUNT, Massachusetts
JEFF FLAKE, Arizona ANTHONY D. WEINER, New York
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
LOUIE GOHMERT, Texas
Jay Apperson, Chief Counsel
Elizabeth Sokul, Special Counsel on Intelligence
and Homeland Security
Jason Cervenak, Full Committee Counsel
Michael Volkov, Deputy Chief Counsel
Bobby Vassar, Minority Counsel
C O N T E N T S
----------
MAY 10, 2005
OPENING STATEMENT
Page
The Honorable Howard Coble, a Representative in Congress from the
State of North Carolina, and Chairman, Subcommittee on Crime,
Terrorism, and Homeland Security............................... 1
The Honorable Robert C. Scott, a Representative in Congress from
the State of Virginia, and Ranking Member, Subcommittee on
Crime, Terrorism, and Homeland Security........................ 2
WITNESSES
The Honorable Glenn A. Fine, Inspector General, United States
Department of Justice
Oral Testimony................................................. 4
Prepared Statement............................................. 6
Mr. Gregory Katsas, Deputy Assistant Attorney General, Civil
Division, United States Department of Justice
Oral Testimony................................................. 14
Joint Prepared Statement....................................... 18
Mr. Barry Sabin, Chief, Counterterrorism Section, Criminal
Division, United States Department of Justice
Oral Testimony................................................. 16
Joint Prepared Statement....................................... 18
Mr. Ahilan T. Arulanantham, Staff Attorney, Southern California
Office, American Civil Liberties Union
Oral Testimony................................................. 23
Prepared Statement............................................. 25
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Robert C. Scott, a
Representative in Congress from the State of Virginia, and
Ranking Member, Subcommittee on Crime, Terrorism, and Homeland
Security....................................................... 53
IMPLEMENTATION OF THE USA PATRIOT ACT: PROHIBITION OF MATERIAL SUPPORT
UNDER SECTIONS 805 OF THE ACT AND 6603 OF THE INTELLIGENCE REFORM AND
TERRORISM PREVENTION ACT OF 2004
----------
TUESDAY, MAY 10, 2005
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:05 a.m., in
Room 2141, Rayburn House Office Building, the Honorable Howard
Coble (Chair of the Subcommittee) presiding.
Mr. Coble. Good morning, ladies and gentlemen. The
distinguished gentleman from Virginia, the Ranking Member, Mr.
Scott, is on his way. And I think in the interest of time,
since the panelists are standing at the ready, we will start,
and Mr. Scott will be here presently.
Today, the Subcommittee on Crime, Terrorism, and Homeland
Security will conduct its eighth hearing on the USA PATRIOT Act
and related laws. This hearing focuses on two issues: One, the
Inspector General's biannual report on whether the Department
of Justice has abused the PATRIOT Act; and two, the prohibition
on material support to terrorists, as amended by the PATRIOT
Act and the Intelligence Reform and Terrorism Prevention Act.
Section 1001 of the PATRIOT Act requires the Inspector
General to review all information alleging civil liberties
abuses by employees of the Department of Justice. The IG has
found no such abuses by employees of the Department using the
PATRIOT Act.
As to the matter on providing material support to
terrorists, this prohibition predates the PATRIOT Act. It was
created in 1996 in the Anti-Terrorism and Effective Death
Penalty Act. The 1996 act in part was in response to the
Oklahoma City and the first World Trade Center terrorist
attacks, and made it illegal to knowingly provide material
support to a group designated as a foreign terrorist
organization, better known as an ``FTO.''
In 1998, a group led by the Humanitarian Law Project
cancelled--challenged the constitutionality of the ban, arguing
that it violated the first amendment. Both the Ninth Circuit
District Court and the appeals courts rejected most of the
first amendment claims.
The appeals court, for instance, rejected the free
association claim, finding that the statute does not prohibit
membership in a group or support for the political goals of a
group. The appeals court pointed out that what the law
prohibits is the act of giving material support, and there is
no constitutional right to facilitate terrorism by giving
terrorists the weapons and explosives with which to carry out
their grisly missions.
The Ninth Circuit also rejected the plaintiff's contention
that the law could be interpreted to prohibit the giving of
material support to the so-called terrorist group's non-
violent, humanitarian, and political activities; concluding
that the first amendment did not create a right to give funds
to terrorist groups. Money is fungible, and the court
recognized that when someone makes a donation to terrorist
groups there's no way to tell how the donation is used.
The court did find that the language was too vague in
areas, and focused on the terms ``training'' and ``personnel.''
The Ninth Circuit also found in another case that the term
``expert advice or assistance'' was unconstitutionally vague.
``Expert advice or assistance'' was language from the USA
PATRIOT Act. The Congress has corrected these vagueness
problems in the Intelligence Reform and Terrorism Prevention
Act of 2004.
In fact, on December 21, 2004, the Ninth Circuit Court of
Appeals recognized this correction in lifting an injunction
that had barred the Government from prosecuting a Los Angeles
group if the group aided organizations labeled as supporting
terrorism. According to an Associated Press story dated
December 22 of last year, the court said its December 1
decision in Humanitarian Law Project v. the Department of
Justice was based partly on the Intelligence Reform and
Terrorism Prevention Act of 2004, which President Bush signed
into law on December 17, 2004.
The hearing today will examine the need for the ban on
material support and the concerns about the prohibition, as
well as the Inspector General's report on civil liberty abuses.
I look forward to hearing testimony from the witnesses on their
support of and concerns about these provisions.
And now I'm pleased to recognize the distinguished
gentleman from Virginia, the Ranking Member, Mr. Bobby Scott.
Mr. Scott. And thank you, Mr. Chairman. And I appreciate
your holding this hearing on the issues surrounding the
material support provision of the USA PATRIOT Act, and again
want to thank you for holding the hearings. The fact that we're
actually deliberating on this, I think, will give us the
opportunity to have a much better work product than what was
slapped together right at the last minute on the floor of the
House.
This provision, the material support provision, has proved
troublesome in its application; particularly troublesome in the
context of humanitarian and disaster relief efforts, where aid
workers are severely hampered by bizarre implications of a
provision that attempts to make an exception for medical and
humanitarian relief, but not for food and water or medical
supplies to provide the medical procedures to provide the
relief.
Various aspects of the provision have been found to be
unconstitutional by several courts. We have not had a
definitive ruling from the U.S. Supreme Court, so many of the
issues are still being litigated.
We've made some fixes to the provision with the 9/11 bill
we passed last year, but there still appear to be problems.
Moreover, that fix was sunsetted to expire in 2006. So it's
timely that we're revisiting it at this time.
Some of the issues, Mr. Chairman, that we need to look at
include how an organization gets designated as a terrorist
organization to begin with; how you get off the list; what kind
of notice is required for someone to have. There are a lot of
different issues where I'm afraid a lot of innocent people and
people of good will making donations to organizations they
thought were humanitarian organizations in fact might get
caught up in this provision. So we look forward to our
testimony by witnesses, Mr. Chairman. And again, thank you for
holding the hearing.
Mr. Coble. I thank the gentleman from Virginia. We've been
joined by the distinguished gentleman from Texas, Mr. Gohmert,
and the distinguished gentleman from Massachusetts, Mr.
Delahunt. Good to have you all with us.
Gentlemen, it's the practice of the Subcommittee to swear
in all witnesses appearing before it. So, if you would, please
stand and raise your right hands.
[Witnesses sworn.]
Mr. Coble. Let the record show that each of the witnesses
answered in the affirmative.
We're pleased to have our panel with us today, as well as
those in the audience in the hearing room here. Our first
witness today is the Honorable Glenn Fine, Inspector General of
the Department of Justice. Prior to being nominated and
confirmed as Inspector General, Mr. Fine worked in several
capacities within the Office of Inspector General, and has
previously served as an Assistant United States Attorney. He is
a graduate of Harvard College and the Harvard School of Law
and, as a Rhodes Scholar, earned a bachelor's and master's
degree at Oxford University.
Our second witness is Mr. Gregory Katsas, Deputy Assistant
Attorney General for the Civil Division of the Department of
Justice. Prior to joining the Department, Mr. Katsas was an
attorney in private practice. He is a graduate of Princeton
University and the Harvard School of Law, and served as a law
clerk to Judge Edward Becker of the U.S. Court of Appeals for
the Third Circuit; Justice Clarence Thomas, both when he served
on the U.S. Court of Appeals for the D.C. Circuit and on the
U.S. Supreme Court.
Our third witness is Mr. Barry Sabin, who I thank for
appearing before us for a second time in this series of
hearings on the USA PATRIOT Act. Mr. Sabin is Chief of the
Counterterrorism Section for the Criminal Division of the
Justice Department. Before beginning this role, Mr. Sabin
served in the United States Attorney's Office in Miami,
Florida. Mr. Sabin received his bachelor's and master's degrees
from the University of Pennsylvania, and his law degree from
the New York University School of Law.
And our final witness--and, sir, I have the phonetical
pronunciation, but I'm going to ask you to help me.
Mr. Arulanantham. It's Ahilan Arulanantham.
Mr. Coble. Thank you, sir. It's good to have you with us.
And you serve as staff attorney in the Southern California
Office of the American Civil Liberties Union. Prior to joining
the ACLU's Southern California Office, this gentleman was
Assistant Federal Public Defender in El Paso, and worked as a
fellow at the ACLU Immigrants Rights Project in New York. He is
a graduate of the Yale Law School, and a former law clerk for
Judge Steven Rhinehart of the United States Court of Appeals
for the Ninth Circuit.
Gentlemen, good to have you all with us.
And I'm sorry I wasn't able to pronounce your name, but
thank you for your assist.
And I want to apologize to all of you again. I am still
plagued with this damnable pollen attack that comes every
spring, so you all bear with me. I know it doesn't sound very
favorable.
Gentlemen, as we have told you all previously, we operate
under the 5-minute rule here. We have examined your testimony,
and it will be reexamined. And if you'll keep your eyes on
those panels that appear on the table with you, when the amber
light reflects in your eye, that is your warning that you have
about a minute to go. So if you could stay within the 5-minute
time frame, we would be appreciative. And in the sense of
fairness, a fair and balanced approach, we impose the 5-minute
rule against ourselves, as well. So if you could, confine your
answers as tersely as possible.
Mr. Fine, we will start with you, sir.
TESTIMONY OF THE HONORABLE GLENN A. FINE, INSPECTOR GENERAL,
UNITED STATES DEPARTMENT OF JUSTICE
Mr. Fine. Mr. Chairman, Congressman Scott, and Members of
the Subcommittee, I appreciate the Committee's invitation to
testify this morning about the work of the Department of
Justice Office of the Inspector General. I have been asked to
address the OIG's responsibilities under section 1001 of the
PATRIOT Act. That section requires the OIG to receive and
review complaints of civil rights and civil liberties
violations by Department of Justice employees. It also requires
the OIG to publicize our duties and provide semi-annual reports
to Congress on the implementation of section 1001.
Since passage of the PATRIOT Act in October 2001, the OIG
has issued six such semi-annual reports to Congress; most
recently, in March of this year. Each of these reports is
available publicly on the OIG's website.
In my written statement, I discuss in detail three issues.
First, I describe the procedures the OIG has implemented
regarding our section 1001 duties. Second, I discuss the
numbers and types of complaints we have received, the cases we
have investigated, and the outcomes of those investigations.
Third, I summarize a series of OIG reviews that relate to our
civil rights and civil liberties oversight responsibilities.
I will not repeat my written statement here. But instead,
will highlight for the Committee a few key points. First, the
OIG has aggressively implemented and widely publicized our
duties under section 1001. For example, we established a
special e-mail address where people can report section 1001
complaints to us. We've developed a poster in English and
Arabic that explains how to file complaints with the OIG, and
we disseminated the poster to all Federal Bureau of Prison
facilities and a variety of other organizations.
We placed advertisements on television, radio, and in
newspapers about our section 1001 duties and how to contact us
with complaints. We created and distributed fliers about our
duties in Arabic, Urdu, Punjabi, Spanish, and Vietnamese. And
we reached out to groups involved in civil rights and civil
liberties issues.
As a result of these efforts, the OIG has received more
than 7,000 complaints during the past 3 years. I discuss the
disposition of these complaints in my written statement. Many
of the complaints involve matters outside of the Department of
Justice's jurisdiction and, consequently, we referred them to
the appropriate entity, such as the Department of Homeland
Security or local authorities. Many complaints, on their face,
do not warrant investigation. Still others discuss management
issues, such as complaints from Federal prisoners about the
type of food served or cell assignments, and we refer those
complaints to the components for appropriate handling.
However, other complaints present serious allegations that
warrant investigation. In several of these cases we have
substantiated misconduct by DOJ employees, including one case
in which we found a disturbing pattern of discriminatory
actions against Muslim inmates by officials at a BOP facility.
One of the questions we frequently receive is whether we
have received any complaints alleging abuse of a provision in
the PATRIOT Act. To date, none of the allegations we have
received, with one possible exception, have related to the use
of a provision of the PATRIOT Act. The one possible section is
the Brandon Mayfield matter.
In our ongoing review of the Mayfield case, the OIG is
investigating the FBI's conduct in connection with the
misidentification of a latent fingerprint found on evidence
from the March 2004 Madrid train bombing. The FBI incorrectly
identified the print as belonging to Brandon Mayfield, an
attorney in Portland, Oregon. As a result of the
misidentification, the FBI initiated an investigation of
Mayfield that resulted in his arrest and detention for
approximately 2 weeks. Mayfield was released when the Spanish
National Police matched the fingerprint on the evidence to an
Algerian national.
The OIG is investigating the cause of the erroneous
fingerprint identification and the FBI's handling of the
matter, including any use of the PATRIOT Act in this case. We
plan to issue a report describing the results of our
investigation when it is completed.
I also want to briefly note that our office has conducted
other reviews that go beyond the requirements of section 1001,
but that relate to civil rights and civil liberties issues. For
example, we investigated the treatment of aliens held on
immigration charges in connection with the investigation of the
September 11 attacks, and we found significant problems in the
way the Department handled these detainees.
We focused in particular on the treatment of detainees at
the Metropolitan Detention Center in Brooklyn, New York, where
we found, among other things, that many detainees were held in
unduly harsh conditions; that some were physically and verbally
abused; that detainees did not receive timely notice of charges
against them; and that meetings between some detainees and
their attorneys were improperly taped.
We recommended that certain MDC staff members be
disciplined for their conduct. Unfortunately, a year and a half
after issuance of our report, the BOP still is reviewing the
matter and has not imposed any discipline.
Finally, I want to note for the Committee an ongoing OIG
review that is examining the observations by FBI employees of
interrogation techniques used on detainees held at the U.S.
military facilities in Guantanamo Bay and elsewhere. The OIG is
examining whether and to whom FBI employees reported any
observations of abuse of interrogation of detainees, how those
reports were handled, and whether any FBI employees
participated in abusive interrogations.
In sum, since passage of the PATRIOT Act, the OIG has
undertaken our critical duties under section 1001, and we will
continue to make these important duties a high priority.
That concludes my statement, and I would be glad to answer
any question about the OIG's work.
[The prepared statement of Mr. Fine follows:]
Prepared Statement of the Honorable Glenn A. Fine
Mr. Chairman, Congressman Scott, and Members of the Subcommittee on
Crime, Terrorism, and Homeland Security:
I appreciate the opportunity to testify before the Committee this
morning as it examines various provisions of the USA PATRIOT Act
(Patriot Act), Public Law 107-56. I am here to discuss one section in
particular--Section 1001, the section that directs the Office of the
Inspector General (OIG) in the U.S. Department of Justice (DOJ or
Department) to undertake a series of actions related to complaints of
civil rights or civil liberties violations allegedly committed by DOJ
employees. It also requires the OIG to provide semiannual reports to
Congress on the implementation of the OIG's responsibilities under
Section 1001.
Since passage of the Patriot Act, the OIG has reported to Congress
about our Section 1001 activities on six occasions, most recently in
March of this year. Each of these reports is available publicly on the
OIG's website.
In my remarks today, I plan to address three primary issues. First,
I will describe how the OIG is implementing its oversight
responsibilities under Section 1001. Next, I will discuss the types of
civil rights and civil liberties complaints we have received since
passage of the Patriot Act, the cases we have investigated, and the
outcomes of those investigations. Third, I will highlight findings in a
series of OIG reviews that go beyond the explicit requirements of
Section 1001 but that are related to our civil rights and civil
liberties oversight responsibilities.
I. BACKGROUND
Section 1001 of the Patriot Act provides the following:
The Inspector General of the Department of Justice shall
designate one official who shall--
(1) review information and receive complaints alleging abuses
of civil rights and civil liberties by employees and officials
of the Department of Justice;
(2) make public through the Internet, radio, television, and
newspaper advertisements information on the responsibilities
and functions of, and how to contact, the official; and
(3) submit to the Committee on the Judiciary of the House of
Representatives and the Committee on the Judiciary of the
Senate on a semi-annual basis a report on the implementation of
this subsection and detailing any abuses described in paragraph
(1), including a description of the use of funds appropriations
used to carry out this subsection.
As an independent entity in the Department of Justice, the OIG has
statutory jurisdiction to review programs and personnel in all DOJ
components (with one exception), including the Federal Bureau of
Investigation (FBI), the Drug Enforcement Administration (DEA), the
Federal Bureau of Prisons (BOP), the Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATF), the U.S. Attorneys' Offices, and other
DOJ components.\1\
---------------------------------------------------------------------------
\1\ The one exception is that the Department's Office of
Professional Responsibility has the jurisdiction to review alleged
misconduct by Department attorneys or law enforcement personnel that
relates to the exercise of attorneys' authority to investigate,
litigate, or provide legal advice. See Attorney General Order 2492-
2001.
---------------------------------------------------------------------------
After passage of the Patriot Act, the OIG created the Special
Operations Branch in its Investigations Division to manage the OIG's
investigative responsibilities outlined in Section 1001. Staff in this
OIG unit receive civil rights and civil liberties complaints via mail,
e-mail, telephone, and facsimile, and each complaint is reviewed by an
Investigative Specialist and a supervisor. The complaints are entered
into an OIG database and a decision is made concerning its disposition.
The more serious civil rights and civil liberties allegations that
relate to actions of DOJ employees or DOJ contractors normally are
assigned to an OIG Investigations Division field office, where OIG
special agents conduct investigations of criminal violations and
administrative misconduct.\2\ Matters that involve broader issues, such
as widespread allegations of detainee abuse, often are assigned to the
OIG's Oversight and Review Division for review.
---------------------------------------------------------------------------
\2\ It is important to note that the OIG can pursue an allegation
either criminally or administratively. Many OIG investigations begin
with allegations of criminal activity but, as is the case for any law
enforcement agency, do not end in prosecution. When this occurs, the
OIG is able to continue the investigation and treat the matter as a
case for potential administrative discipline.
---------------------------------------------------------------------------
Publicizing the fact that we review allegations from individuals of
civil rights and civil liberties abuses by Department employees is an
important part of our responsibilities under the Patriot Act. Over the
past three years, the OIG has met its Section 1001 advertising
requirements in a variety of ways, including providing information on
the OIG's website about how individuals can report violations of their
civil rights or civil liberties and establishing an e-mail address
([email protected]) where individuals can send complaints of
civil rights and civil liberties violations. The vast majority of the
complaints we receive are sent to our e-mail address.
In addition, the OIG developed a poster, translated in Arabic, that
explains how to file a civil rights or civil liberties complaint with
the OIG. The OIG disseminated approximately 2,500 of these posters to
more than 150 national and local Muslim and Arab organizations in 50
cities, including the Council on American-Islamic Relations, Sikh
Mediawatch and Resource Task Force, and the American-Arab Anti-
Discrimination Committee. We also provided the posters to the BOP,
which placed at least two in each of its facilities. The OIG also
provided 400 copies of the poster to the Immigration and Naturalization
Service (INS), prior to its transfer to the Department of Homeland
Security (DHS) in March 2003 for distribution to its offices around the
country.
The OIG has aired television advertisements in areas of the country
with high concentrations of Arab speakers. The text of this
advertisement was spoken in Arabic and scrolled in English. The OIG
also purchased blocks of time on ANA Television Network, Inc., an Arab
cable television station with outlets around the country. The segment
aired 48 times during prime time in June and July 2003.
The OIG also submitted public service announcements to 45 radio
stations in cities across the country including New York, Los Angeles,
Sacramento, Chicago, Detroit, Houston, Dallas, and Washington, D.C. In
addition, we purchased airtime for 44 radio advertisements on Arab/
Muslim American radio stations in New York, Chicago, Los Angeles,
Detroit, and Dallas. These advertisements, in both English and Arabic,
were 60 seconds long.
On several occasions, the OIG has purchased newspaper
advertisements in Arab community newspapers highlighting its role in
investigating allegations of civil rights and civil liberties abuses.
Finally, the OIG created flyers translated into several languages,
including Arabic, Urdu, Punjabi, Spanish, and Vietnamese. Special
agents in OIG Investigations Division field offices have distributed
these flyers to organizations and businesses that have frequent contact
with individuals who speak these languages.
In addition to advertising the OIG's role in reviewing claims of
civil rights and civil liberties violations, the OIG has reached out in
other ways to provide information to the public about our Section 1001
responsibilities, including meeting with groups involved in civil
rights and civil liberties issues.
II. CIVIL RIGHTS AND CIVIL LIBERTIES COMPLAINTS
As described below, the OIG received thousands of complaints each
year. Given the number of complaints received compared to our limited
resources, the OIG does not investigate all allegations, but instead
refers the less serious complaints involving DOJ employees to internal
affairs offices in DOJ components, such as the FBI Inspection Division,
the DEA Office of Professional Responsibility, and the BOP Office of
Internal Affairs for appropriate handling. For a majority of the
referrals related to Section 1001, the OIG required the components to
report the results of their investigations to the OIG. In most cases,
the OIG notifies the complainant of the referral.
However, many of the complaints received by the OIG alleging civil
rights or civil liberties abuses do not merit investigation or involve
matters outside the Department of Justice's jurisdiction. Complaints
that identify a specific issue for investigation are forwarded to the
appropriate investigative entity. For example, complaints of
mistreatment by airport security staff are sent to the DHS OIG. We also
have forwarded complaints to other OIGs, including the Department of
Veterans Affairs, Department of State, United States Postal Service,
Department of Defense, Central Intelligence Agency, and the Equal
Employment Opportunity Commission. In addition, we have referred
complainants to a variety of police department internal affairs offices
that have jurisdiction over the subject matter of those complaints.
When an allegation received from any source involves a potential
violation of federal civil rights statutes by a DOJ employee, the OIG
normally discusses the complaint with the DOJ Civil Rights Division. In
some cases, the Civil Rights Division accepts the case for possible
prosecution and requests additional investigation by either the OIG or
the FBI. In other cases, the Civil Rights Division declines
prosecution.
A. Analysis of Civil Rights and Civil Liberties Complaints
The total number of civil rights and civil liberties complaints
processed by the OIG from enactment of the Patriot Act in October 2001
through December 2004 was 7,136. After reviewing the complaints, the
OIG determined that 3,902 of the 7,136 complaints did not warrant an
investigation or review.\3\ The OIG also determined that an additional
2,144 complaints made allegations against agencies or entities outside
of the DOJ, including other federal agencies, local governments, or
private businesses. The OIG concluded that 970 of the remaining 1,090
complaints that fell within the OIG's jurisdiction raised purely
management issues, and the OIG referred those complaints to a variety
of DOJ components for handling.\4\ For 120 of these remaining
complaints, the OIG determined that an investigation or further review
was warranted, either by the OIG or a DOJ component. The OIG opened
investigations into 30 of these matters and referred the remaining 90
complaints to the components.
---------------------------------------------------------------------------
\3\ For example, some of the complaints were frivolous on their
face, alleging that government agents were broadcasting signals that
interfere with a person's dreams or that prison officials had laced
prison food with hallucinogenic drugs.
\4\ For example, some inmates complained about the general
conditions at federal prisons, such as the poor quality of the food or
the lack of hygiene products. These complaints were forwarded to the
BOP for its review.
---------------------------------------------------------------------------
One of the questions we frequently receive about our Section 1001
activities is whether we have received any complaints alleging abuse of
a provision in the Patriot Act. None of the allegations we have
received alleging misconduct by a Department employee, with one
possible exception, related to use of a provision of the Patriot Act.
The one possible exception, described later in this testimony, is the
Brandon Mayfield matter.
B. Examples of Substantiated Cases
The OIG has taken its Section 1001 duties seriously, and has
aggressively investigated various allegations of civil rights
violations. While many of the complaints are not substantiated, the OIG
has substantiated various allegations of civil rights and civil
liberties abuses. The following are examples of investigations
completed by the OIG pursuant to its Section 1001 responsibilities in
which allegations of abuse were substantiated:
The OIG investigated allegations by Muslim inmates
that staff at a BOP prison, including the warden, discriminated
against these inmates and engaged in retaliatory actions. The
OIG substantiated many of the allegations against the warden
and other BOP staff, and we found a disturbing pattern of
discriminatory and retaliatory actions against Muslim inmates
by BOP officers at this facility.
For example, we found that members of the prison's executive
staff, including the warden, unfairly punished Muslim inmates
who complained about the conditions of confinement or who
cooperated with the OIG's investigation. A Muslim inmate who
had filed complaints relating to his treatment at the prison
was placed in the Special Housing Unit for four months for what
we determined were specious reasons. In a separate incident,
our review found that 5 days after the OIG interviewed a Muslim
inmate, the warden inappropriately and unjustly ordered the
inmate transferred to the Special Housing Unit for more than
120 days.
The OIG investigated claims that an INS Supervisory
Detention Enforcement Officer (SDEO) entered a gas station
operated by an Arab-American and demanded paper towels. When
the attendant replied that he did not have paper towels, the
SDEO displayed his credentials, asked the attendant if he was
American, and requested his immigration documents. The
investigation also revealed that the SDEO requested a colleague
to query an immigration database for information on the
attendant. We found that the SDEO improperly displayed his
credentials for other than official purposes and
inappropriately caused an INS database to be queried. We
provided our report of investigation to the DHS for appropriate
action.
The OIG investigated allegations raised by
approximately 20 inmates that a BOP correctional officer
verbally abused inmates with ethnic and racial slurs and
inappropriate comments. After the BOP facility's investigation
concluded that the allegations were unsubstantiated, the BOP's
Office of Internal Affairs referred the matter to the OIG. When
the OIG interviewed the correctional officer, he admitted to
not being completely candid with BOP investigators, to verbally
abusing the Muslim inmate, and to throwing the inmate's Koran
into the trash can.
The OIG investigated allegations that a BOP
correctional officer used excessive force and failed to follow
BOP policy in handling and restraining a Muslim inmate when the
inmate was removed from his cell to be escorted to the Medical
Unit for examination. The OIG concluded that the correctional
officer used poor judgment in handling the inmate and failed to
follow BOP policy when the correctional officer immediately
entered the inmate's cell and used force to subdue the inmate
instead of waiting for assistance and preparing a plan for a
safer entry into the cell.
The OIG learned that an electronic communication (EC)
from one FBI field office to other FBI field offices around the
country identified the names and addresses of the proprietors
and customers of a Muslim-based website. The EC listed the
proprietors' and customers' names by FBI field office and
stated that the field offices should take whatever action they
deemed appropriate. The OIG received a copy of the EC from an
FBI employee concerned about the lack of predication or
apparent basis on the face of the EC for the information to be
sent for investigation to FBI field offices. We asked the FBI
Inspection Division to review the incident and report back to
us. The FBI Inspection Division notified us that the FBI
recognized that the EC raised First Amendment concerns. The FBI
subsequently retracted the EC and directed its field offices to
conduct no further investigative action based on the EC. The
Inspection Division also informed us that the FBI had concluded
that the EC should have been reviewed by the legal advisor for
the originating field office prior to being disseminated and
that in the future such an EC will be subject to legal review.
C. Examples of Cases Not Substantiated
The following are examples of investigations completed by the OIG
pursuant to its Section 1001 responsibilities in which allegations of
abuse were not substantiated:
The OIG investigated allegations that unidentified
correctional officers and the warden of a BOP facility
threatened to ``gas'' inmates of Middle Eastern ancestry if war
broke out in the Middle East. A BOP inmate further alleged that
BOP staff members retaliated against him for reporting these
allegations by placing him in segregation, denying him medical
treatment, and eventually transferring him to another
institution. The OIG investigation did not substantiate the
allegations.
The OIG investigated allegations that four
individuals of Arab descent were detained improperly by FBI
agents at the U.S. port of entry in the Virgin Islands. The OIG
investigation did not substantiate any misconduct by the FBI
agents.
The OIG investigated allegations that FBI agents
conducted an illegal search of an Arab American's apartment
and, during the search, vandalized the apartment, stole items,
and called the complainant a terrorist. The complainant alleged
that even though the FBI found no evidence linking him to
terrorism, approximately four months later the FBI recruited
his friend to plant drugs in the complainant's home. According
to the complainant, FBI agents came to his home, conducted a
consent search, and arrested him after finding the drugs.
During the OIG interview of the complainant, he recanted his
allegations.
The OIG investigated allegations that an Arab-
American immigration detainee was beaten, threatened by
officers, denied adequate medical treatment, and forced to eat
pork on a regular basis even though it was against his
religion. The OIG interviewed the jail staff and reviewed the
complainant's INS and medical records. The jail's Food Services
Administrator told the OIG that the jail has had a 100 percent
non-pork diet for approximately one year. In addition, prison
dental records show that the victim signed consent forms to
have his badly infected teeth removed. Regarding the alleged
assault by the correctional officers, the OIG investigation
revealed conflicting information from the victim, witnesses,
and officers, and the OIG could not substantiate the detainee's
alleged injuries. The OIG presented the results of its
investigation to attorneys in the Civil Rights Division, who
declined prosecution.
The OIG investigated allegations of misconduct
relating to dialysis treatment of Muslim inmates at a BOP
medical center. The OIG had received letters from two inmates
alleging that inmate patients were required to take injections
of porcine (pork) heparin as part of their dialysis treatment,
despite the patients' religious objections to pork. While we
did not substantiate misconduct by BOP employees, the OIG found
deficiencies in the medical center's management of information
and communications affecting the use of heparin for the
inmates' treatment. The OIG provided several recommendations to
the BOP relating to these deficiencies, and the BOP agreed to
adopt these recommendations.
III. OTHER ACTIVITIES RELATED TO THE OIG'S CIVIL RIGHTS AND CIVIL
LIBERTIES OVERSIGHT RESPONSIBILITIES
The OIG has more than simply responded individually to each
complaint of misconduct. Rather, we have conducted several reviews that
go beyond the explicit requirements of Section 1001 in order to
implement more fully our civil rights and civil liberties oversight
responsibilities. Given the multi-disciplinary nature of our staff, the
OIG can extend its oversight beyond traditional investigations of
misconduct to evaluate DOJ programs. Using this approach, the OIG has
conducted reviews that address, in part, issues relating to our duties
under Section 1001.
A. Brandon Mayfield Matter
The OIG currently is investigating the FBI's conduct in connection
with the erroneous identification of a latent fingerprint found on
evidence from the March 2004 Madrid train bombing. The FBI's
fingerprint examiners erroneously concluded that the fingerprint
belonged to Brandon Mayfield, an attorney in Portland, Oregon. As a
result of the misidentification, the FBI initiated an investigation of
Mayfield that resulted in his arrest as a ``material witness'' and his
detention for approximately two weeks. Mayfield was released when
Spanish National Police matched the fingerprints on the evidence to an
Algerian national. The OIG is examining the cause of the erroneous
fingerprint identification and the FBI's handling of the matter. The
Department's Office of Professional Responsibility is reviewing the
conduct of the prosecutors in the case.
The OIG's report will examine the causes of the misidentification.
In connection with this aspect of the report, the OIG has consulted
with national fingerprint experts to assist in the evaluation of the
causes identified by the FBI and the international panel the FBI
assembled to review the case. The OIG report also will examine the
corrective actions taken by the FBI Laboratory since the
misidentification came to light.
In addition, the OIG report will address issues arising from the
FBI's investigation and arrest of Brandon Mayfield, including the FBI's
use of FISA in this case; any use of or implication of the Patriot Act
in this case; the FBI's participation in the preparation of the
material witness and criminal search warrants; and Mayfield's
conditions of confinement while he was held as a material witness.
B. Review of FBI Conduct Relating to Detainees in Military Facilities
in Guantanamo Bay and Elsewhere
In late 2004, the OIG initiated a review to examine FBI agents'
observations of interrogation techniques used on detainees held at the
U.S. military's prison facilities in Guantanamo Bay and other military
facilities. The OIG is examining whether FBI staff participated in any
abusive interrogation techniques of detainees at these military
detention facilities, whether and to whom FBI employees reported their
observations of these interrogation techniques, and how those reports
were handled.
OIG investigators have reviewed thousands of pages of documents
from the FBI and the Department of Defense (DOD); interviewed dozens of
FBI agents, supervisory FBI personnel, and DOJ officials; and traveled
to Guantanamo Bay to interview detainees, FBI personnel, and DOD
military personnel. In addition, the OIG plans to survey FBI employees
who have served in an overseas area controlled by the U.S. military
during the past two years as part of its review of this matter.
C. Treatment of Aliens Held on Immigration Charges in Connection with
the Investigation of the September 11 Attacks
After the September 11 terrorist attacks, the Department used
federal immigration laws to detain many aliens in the United States who
were suspected of having ties to the attacks or connections to
terrorism, or who were encountered during the course of the FBI's
investigation into the attacks. In the 11 months after the attacks, 762
aliens were detained in connection with the FBI terrorism investigation
for various immigration offenses, including overstaying their visas and
entering the country illegally.
The OIG received allegations of mistreatment by these detainees.
Rather than handling each one separately, we examined in a systematic
fashion the treatment of these detainees, including their processing,
the bond decisions, the timing of their removal from the United States
or their release from custody, their access to counsel, and their
conditions of confinement. The OIG's 198-page report, released in June
2003, focuses in particular on detainees held at the BOP's Metropolitan
Detention Center (MDC) in Brooklyn, New York.
Our report found significant problems in the way the Department
handled the September 11 detainees. Among the report's findings:
The FBI in New York City made little attempt to
distinguish between aliens who were subjects of the FBI
terrorism investigation (called ``PENTTBOM'') and those
encountered coincidentally to a PENTTBOM lead. The OIG report
concluded that, even in the chaotic aftermath of the September
11 attacks, the FBI should have expended more effort attempting
to distinguish between aliens who it actually suspected of
having a connection to terrorism from those aliens who, while
possibly guilty of violating federal immigration law, had no
connection to terrorism but simply were encountered in
connection with a PENTTBOM lead.
The INS did not consistently serve the September 11
detainees with notice of the charges under which they were
being held within the INS's goal of 72 hours. Our review found
that some detainees did not receive these charging documents
for weeks or more than a month after being arrested. This delay
affected the detainees' ability to understand why they were
being held, obtain legal counsel, and request a bond hearing.
The Department instituted a policy that all aliens in
whom the FBI had an interest in connection with the PENTTBOM
investigation required clearance by the FBI of any connection
to terrorism before they could be removed or released. The
policy was based on the belief--which turned out to be
erroneous--that the FBI's clearance process would proceed
quickly. The OIG review found that instead of taking a few days
as anticipated, the FBI clearance process took an average of 80
days, primarily because it was understaffed and not given
sufficient priority by the FBI.
In the first 11 months after the terrorist attacks,
84 September 11 detainees were housed at the MDC in Brooklyn
under highly restrictive conditions. These conditions included
``lock down'' for at least 23 hours per day; escort procedures
that included a ``4-man hold'' with handcuffs, leg irons, and
heavy chains when the detainees were moved outside their cells;
and a limit of one legal telephone call per week and one social
call per month.
BOP officials imposed a communications blackout for
September 11 detainees immediately after the terrorist attacks
that lasted several weeks. After the blackout period ended, the
MDC's designation of the September 11 detainees as ``Witness
Security'' inmates frustrated efforts by detainees' attorneys,
families, and even law enforcement officials to determine where
the detainees were being held. We found that MDC staff
frequently--and mistakenly--told people who inquired about a
specific September 11 detainee that the detainee was not held
at the facility when, in fact, the opposite was true.
With regard to allegations of abuse at the MDC, the
evidence indicated a pattern of physical and verbal abuse by
some correctional officers against some September 11 detainees,
particularly during the first months after the attacks and
during intake and movement of prisoners. The OIG conducted a
supplementary investigation of these allegations (discussed
below).
The OIG report offered 21 recommendations addressing issues such as
developing uniform arrest and detainee classification policies,
improving information-sharing among federal agencies on detainee
issues, improving the FBI clearance process, clarifying procedures for
processing detainee cases, revising BOP procedures for confining aliens
arrested on immigration charges who are suspected of having ties to
terrorism, and improving oversight of detainees housed in contract
facilities.
In responding to the report, the Department took significant steps
to implement the OIG's recommendations. For example, the Department
developed protocols for making more timely decisions on whether an
alien is ``of interest'' to the FBI or whether the alien should be
handled according to routine immigration procedures. In addition, the
BOP implemented a policy to retain for six months, rather than 30 days,
videotapes depicting inmate movements outside their prison cells.
However, the Department still has not taken action on all the
recommendations. Despite the agreement by the Department and the DHS to
enter into a memorandum of understanding (MOU) to formalize policies,
responsibilities, and procedures for managing a national emergency that
involves alien detainees, this MOU has not yet been established. We
have been informed that discussions between the Department and the DHS
over the language of the MOU still are ongoing.
D. Supplemental Report on September 11 Detainees' Allegations of Abuse
at the MDC in Brooklyn, New York
In December 2003, the OIG issued a Supplemental Report that
examined in detail allegations made by detainees held in connection
with the Department's terrorism investigation that some MDC
correctional staff members at the MDC physically and verbally abused
them.
The Supplemental Report concluded that certain MDC staff members
abused some of the detainees. We did not find evidence that the
detainees were brutally beaten, but we found evidence that some
officers slammed detainees against the wall, twisted their arms and
hands in painful ways, stepped on their leg restraint chains, and
punished the detainees by keeping them restrained for long periods of
time. We concluded that the way these MDC staff members handled
detainees was, in many respects, unprofessional, inappropriate, and in
violation of BOP policy.
In addition, we found systemic problems in the way detainees were
treated at the MDC, including staff members' use of a t-shirt taped to
the wall in the facility's receiving area designed to send an
inappropriate message to detainees, audio taping of detainees meetings
with their attorneys, unnecessary and inappropriate use of strip
searches, and banging on detainees' cell doors excessively while they
were sleeping.
During our investigation, we examined approximately 30 detainees'
allegations of physical and verbal abuse against approximately 20 MDC
staff members. In our review of these allegations, we interviewed more
than 115 individuals, including detainees, MDC staff members, and
others.
We also reviewed MDC videotapes, including hundreds of tapes
showing detainees being moved around the facility and tapes from
cameras in detainees' cells. During the course of our investigation,
MDC officials repeatedly told us that videotapes of general detainee
movements no longer existed. That information was inaccurate. In late
August 2003, the OIG found more than 300 videotapes at the MDC spanning
the period from October through November 2001.
The OIG developed evidence that approximately 16 to 20 MDC staff
members, most of whom were assigned to the ADMAX SHU, violated BOP
policy by physically or verbally abusing detainees, and we recommended
that the BOP consider discipline for them.
In addition, we made seven systemic recommendations to the BOP,
ranging from developing guidance to train correctional officers in
appropriate restraint techniques to educating BOP staff concerning the
impropriety of audio recording meetings between inmates and their
attorneys.
The BOP has reacted favorably to the systemic recommendations, and
has taken appropriate action to implement them. However, the BOP still
has not imposed discipline on anyone in response to our report.
The BOP initiated its own investigation based on the OIG's findings
to determine whether discipline is warranted. Yet, more than a year
later, the BOP review still is ongoing. We believe that this delay is
too long and that appropriate discipline should have been imposed in a
more timely fashion.
Finally, in February 2005, the BOP discovered additional videotapes
from the MDC relevant to the OIG's supplemental review that had not
been provided previously to the OIG. Some of the videotapes included
additional instances of video- and audio-taped meetings between
detainees and their attorneys at the MDC. Others concerned detainee
movements. The OIG and the BOP are reviewing the newly discovered
videotapes, and the OIG is investigating why the MDC had not previously
provided these videotapes.
E. Review of BOP Security Policies Regarding the Search Religious
Headwear
In another review, the OIG examined the BOP's policies on searching
religious headwear worn by visitors to BOP facilities. This review
arose out of a complaint to the OIG from a Sikh attorney who was denied
access to his client being held at the MDC in Brooklyn, New York,
because he refused to remove his turban for inspection. The Sikh's
religious practice requires him to wear his turban in public at all
times.
The OIG review examined the BOP's policies regarding religious
headwear in light of the BOP's interest in ensuring security at its
facilities. The OIG interviewed the Sikh attorney, officials at the
MDC, BOP managers, and representatives from Sikh Mediawatch and
Resource Task Force.
During our review, BOP Headquarters issued a memorandum to all
Regional Directors and Wardens that clarified how the BOP's search
policies should be interpreted and applied to the search of religious
headwear. While this memorandum effectively addressed the Sikh
attorney's complaint, the OIG recommended that the BOP take additional
steps to ensure that its search policies are consistently applied
throughout the BOP to all visitors who wear religious headwear. In
response to our report, the BOP revised its official policies by
outlining a standard procedure for searching religious headwear. The
BOP also addressed the searching of religious headwear during its staff
annual refresher training in 2004.
F. Review of the BOP's Process for Selecting Muslim Clerics
In May 2004, the OIG released a report that examined the BOP's
procedures for selecting individuals who provide Islamic religious
services to federal inmates. The OIG initiated its review in response
to concerns from several members of Congress about the selection of
Muslim chaplains. Our investigation examined the recruitment,
endorsement, selection, and supervision of Muslim chaplains,
contractors, and volunteers who work with the approximately 9,000 BOP
inmates who seek Islamic religious services.
The OIG review found that while the BOP has made some improvements
in how it selects and supervises Muslim religious services providers, a
number of deficiencies remained, including that:
the BOP and the FBI had not adequately exchanged
information regarding the possible connections to terrorism of
Muslim organizations that endorse applicants for BOP religious
service positions;
once contractors and certain volunteers gain access
to BOP facilities, ample opportunity existed for them to
deliver inappropriate and extremist messages without
supervision from BOP staff members; and
BOP inmates often lead Islamic religious services,
subject only to intermittent supervision from BOP staff
members, which increases the possibility that inappropriate
messages can be delivered to inmates.
The OIG review made 16 recommendations to help the BOP improve its
process for selecting, screening, and supervising Muslim religious
services providers. These recommendations include improving and
increasing the information flow between the BOP and the FBI regarding
the radicalization and recruitment of inmates; requiring that all
chaplain, religious contractor, and certain volunteer applicants be
interviewed by at least one individual knowledgeable of the applicant's
religion; implementing additional security screening requirements for
religious services providers; supervising more closely inmate-led
religious services; using more effectively the expertise of its current
Muslim chaplains to screen, recruit, and supervise Muslim religious
services providers; and developing a strategy specifically targeted
towards recruiting additional Muslim chaplains and contractors.
The BOP agreed with all of the report's recommendations. It has
implemented procedures to integrate into the interview process experts
who are knowledgeable of applicants' religious beliefs and practices;
implemented further security screening requirements for religious
services providers; assigned an additional staff member as liaison with
the FBI to increase and improve information-sharing between the two
agencies; restructured its endorsement requirements for religious
services providers; and modified its requirements for the supervision
of chapel areas.
G. Review of the FBI's Implementation of Attorney General Guidelines
The OIG is completing a review of the FBI's implementation of four
sets of Attorney General guidelines that govern the exercise of FBI
investigations: Attorney General's Guidelines Regarding the Use of
Confidential Informants; Attorney General's Guidelines on FBI
Undercover Operations; Attorney General's Guidelines on General Crimes,
Racketeering Enterprise and Terrorism Enterprise Investigations; and
Revised Department of Justice Procedures for Lawful, Warrantless
Monitoring of Verbal Communications.
The OIG review of the FBI's implementation of the revised
investigative guidelines is designed to assess the FBI's compliance
with the guidelines and to evaluate the procedures that the FBI
employed to ensure that the revised guidelines were properly put into
practice. Adherence to these guidelines could implicate civil rights or
civil liberties issues under Section 1001.
As part of this review, the OIG surveyed three groups of special
agents in the FBI's 56 field offices who play key roles in responding
to questions about and promoting adherence to the guidelines:
Confidential Informant Coordinators; Undercover Coordinators; and
Division Counsel, who serve as chief legal advisers in the field. The
team also surveyed Criminal Division Chiefs of the 93 U.S. Attorneys'
Offices to address guidelines' provisions requiring routine approval,
concurrence, or notification to U.S. Attorneys' Offices relating to
significant Guidelines-related authorities or developments. In
addition, the OIG team visited 12 FBI field offices to review FBI
investigative and administrative files reflecting use of the
authorities or operational techniques authorized by the guidelines.
Finally, the OIG reviewed hundreds of FBI documents and interviewed
senior FBI officials at Headquarters and in field offices.
IV. CONCLUSION
Since passage of the Patriot Act, the OIG has taken steps to
fulfill its duties under Section 1001. We have created the
infrastructure within the OIG to evaluate the hundreds of complaints we
receive each reporting period, have conducted extensive public outreach
about our duties, and have opened investigations on the most serious
allegations that fall within our jurisdiction.
In addition, we have completed a series of reviews examining
important issues related to our civil rights and civil liberties
oversight responsibility. We also have several ongoing reviews that
implicate these issues.
That concludes my statement, and I would be pleased to answer any
questions about the OIG's work.
Mr. Coble. Thank you, Mr. Fine.
Mr. Katsas.
TESTIMONY OF GREGORY KATSAS, DEPUTY ASSISTANT ATTORNEY GENERAL,
CIVIL DIVISION, UNITED STATES DEPARTMENT OF JUSTICE
Mr. Katsas. Mr. Chairman, Congressman Scott, Members of the
Subcommittee, thank you for inviting me to testify about the
statutes prohibiting the provision of material support to
terrorists or designated foreign terrorist organizations.
Those statutes reflect strong bipartisan consensus that in
order to fight terrorism effectively, we must attack it at its
source. The material support provisions do that by preventing
terrorist groups from raising money and obtaining the property,
personnel, and expertise necessary to commit acts of terrorism.
As you know, Mr. Chairman, the statute prohibiting the
provision of material support to designated foreign terrorist
organizations was signed into law by President Clinton in 1996.
Under Attorney General Reno, Attorney General Ashcroft, and now
Attorney General Gonzales, the Department of Justice has
vigorously defended the constitutionality of that important
provision.
In 2000, the Court of Appeals for the Ninth Circuit broadly
upheld this provision against various constitutional
challenges. The Ninth Circuit squarely rejected a claim that
the statute impermissibly imposes guilt by association, and
likewise held that the Constitution does not require proof that
donors to foreign terrorist organizations specifically intend
to aid the unlawful purposes of those organizations.
As the Ninth Circuit explained, the statute prohibits the
act of giving material support, and there is no constitutional
right to facilitate terrorism. Any incidental burdens on
speech, the court held, were no greater than necessary to
achieve Congress' important purpose of combatting international
terrorism. In December of last year, the en banc court
reaffirmed those holdings.
Unfortunately, the Ninth Circuit also held that the terms
``personnel'' and ``training,'' as set forth in the statutory
definition of material support, were unconstitutionally vague.
The Justice Department disagreed with that holding but,
nonetheless, urged the Congress to enact clarifying amendments.
As you know, Congress recently did just that. In section
6603 of the Intelligence Reform and Terrorism Prevention Act of
2004, Congress directly addressed the Ninth Circuit's concerns
by providing specific definitions of the terms ``training,''
``personnel,'' and ``expert advice or assistance.'' Congress'
action in providing these definitions was a careful response to
the Ninth Circuit and reflects highly productive cooperation
between the Executive Branch and the Legislative Branch on this
important matter.
These clarifying amendments were immediately beneficial to
us in our pending litigation. In light of them, the Ninth
Circuit has vacated an injunction regarding the terms
``personnel'' and ``training,'' and more recently vacated a
separate injunction regarding the term ``expert advice or
assistance.'' The constitutionality of the amended definitions
is now before the district court in California, and we are
confident that the amended provisions are constitutional.
Unfortunately, Mr. Chairman, section 6603 of the 2004 act
is set to expire at the end of 2006. Allowing that provision to
expire would be unfortunate, because the definitions in the
material support statute would then revert back to language
that the Ninth Circuit had held was constitutionally suspect.
For that reason, the Department strongly supports the permanent
codification of section 6603.
Once again, Mr. Chairman, I want to thank you for inviting
me here to testify, and I look forward to any questions the
Subcommittee might have about the constitutionality of the
material support provisions. Thank you.
[The joint prepared statement of Mr. Katsas and Mr. Sabin
follows on page 18.]
Mr. Coble. Thank you, Mr. Katsas.
Mr. Sabin.
TESTIMONY OF BARRY SABIN, CHIEF, COUNTERTERRORISM SECTION,
CRIMINAL DIVISION, UNITED STATES DEPARTMENT OF JUSTICE
Mr. Sabin. Mr. Chairman, Ranking Member Scott, Members of
the Subcommittee, I appreciate the opportunity to testify at
this important hearing. I am pleased to discuss with you the
Justice Department's efforts in investigating and in
prosecuting terrorists and in protecting the American people
from future terrorist attacks, owing to the important tools
Congress has provided us over the years. Specifically, I will
focus on our use of the material support statutes, title 18,
United States Code, sections 2339A and B, which have been at
the heart of the Department's prosecutive efforts.
Working together with the intelligence community and our
international allies, law enforcement agents and prosecutors
have made significant progress in our counterterrorism mission
through the use of the criminal justice system. This progress
in national security investigations through article III courts,
whether depicted in jury trials, plea dispositions, or legal
rulings, has been infused by the importance we place on
preserving and protecting our constitutional liberties.
As I discussed in my written statement, the Justice
Department's commitment to successfully bringing prosecutions
in the criminal justice system is critically dependent upon the
material support statutes which have provided, and continue to
provide, the Government the ability to address terrorist
supporters and their logistical support networks at the
earliest stages of terrorist planning.
The material support statutes, as enhanced and clarified by
the USA PATRIOT Act in 2001 and the Intelligence Reform and
Terrorism Prevention Act of 2004 just a few months ago, are
critical features of our current approach to counterterrorism.
Rather than criminalizing the violent acts used by terrorists,
these statutes recognize that there are important components of
the terrorist infrastructure that stop short of actual attacks.
The front-line terrorists cannot operate without their
supporters and their logistical support networks. The material
support statutes are designed to reach these individuals and
their logistical infrastructure.
Section 2339A, passed in 1994, criminalizes knowingly
providing material support or resources to a particular crime
of terrorism, such as a bombing plot. Section 2339A thus
focuses upon how the material support or resources are to be
used.
Section 2339B, which became operational in October 1997,
criminalizes the knowing provision of material support or
resources to a foreign terrorist organization, such as al Qaeda
or Hamas, irrespective of the providers' violent intent.
Section 2339B thus primarily focuses upon who receives the
material support or resources.
A number of victories in recent months illustrate these
powerful law enforcement tools and how they operate in
practice. On April 27 of 2005, a New Jersey jury convicted
Hemant Lakhani, a United Kingdom national, on all counts in the
indictment. Among these charges, Lakhani was convicted of
attempting to provide material support to terrorists, pursuant
to section 2339A, for his role in attempting to sell an anti-
aircraft missile to a man whom he believed represented a
terrorist group intent on shooting down a United States
commercial airliner.
On April 22 of 2005, a jury convicted Ali Al-Timimi, a
speaker and spiritual leader in Northern Virginia, of all ten
counts alleged against him. This prosecution was the second
phase of the Northern Virginia jihad case involving a group of
individuals who were encouraged and counseled by Al-Timimi to
go to Pakistan to receive military training from Lashkar-e-
Taiba in order to fight against American troops.
The first phase of the criminal prosecution involved direct
convictions under the material support statutes. Al-Timimi's
firearm convictions were based upon, in part, the material
support statutes which served as the predicate crimes of
violence for the firearms offenses.
On March 10 of 2005, after a 5-week jury trial, a jury in
Brooklyn, New York, convicted two Yemeni citizens of a variety
of material support charges, including conspiring to provide
material support to al Qaeda and Hamas.
These cases demonstrate some important principles. First,
that 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 Al-
Moayad prosecution was significantly aided by our German
colleagues, who worked alongside the FBI in the undercover
operation and made the arrests 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.
In the Lakhani prosecution, witnesses from the United
Kingdom and Russia testified in New Jersey Federal court about
the assistance they provided the United States counterparts. In
the Al-Timimi prosecution, the British and Australians provided
significant assistance.
In turn, the United States has reciprocated. For example,
last week two convicted conspirators from the Northern Virginia
jihad case testified via video-teleconference in an Australian
court proceeding.
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 leads and new
evidence. In the Al-Moayad trial, prosecutors presented the
testimony of Yaya Goba, one of the convicted defendants in the
Lackawanna case. Successful prosecutions beget more
prosecutions.
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 for inviting us here and providing
us the opportunity to discuss how the material support statutes
are being used around the country, consistent with our
constitutional values, to fight terrorism in the criminal
justice system. Together, we will continue our efforts to
secure justice and defeat those who would harm this country.
[The joint statement of Mr. Katsas and Mr. Sabin follows:]
Joint Prepared Statement of Gregory Katsas and Barry Sabin
Mr. Chairman, Ranking Member Scott, Mmembers of the SubcCommittee,
we appreciate the opportunity to testify at this important hearing. We
are pleased to discuss with you the Justice Department's efforts in
investigating and prosecuting terrorists and in protecting the American
people from future terrorist attacks, owing to the important tools
Congress has provided us over the years. Specifically, we will focus on
our use of the material support statutes, Title 18, United States Code
Sections 2339A and 2339B, which have been at the heart of the
Department's prosecutive efforts.
Working together with the intelligence community and our
international allies, law enforcement agents and prosecutors have made
significant progress in our counterterrorism mission through the use of
the criminal justice system. This progress in national security
investigations through Article III courts, whether depicted in jury
trials, plea dispositions or legal rulings, has been infused by the
importance we place on preserving and protecting our constitutional
liberties. As we discuss below, the Justice Department's commitment to
successfully bringing prosecutions in the criminal justice system is
critically dependent upon the material support statutes which have
provided, and continue to provide, the government the ability to
address terrorist supporters and their logistical support networks at
the earliest stages of terrorist planning.
The material support statutes, as enhanced and clarified by the USA
PATRIOT Act in 2001, and the Intelligence Reform and Terrorism
Prevention Act of 2004 just a few months ago, are critical features of
the law enforcement's current approach to counterterrorism. Rather than
criminalizing the violent acts used by terrorists, 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. People who perform these services
and fill these positions who occupy th position in the terrorism
division of responsibility might not themselves be bomb-throwers. But
the front-line terrorists cannot operate without their supporters and
their logistical support networks. The material support statutes are
designed to reach these individuals and their logistical
infrastructure.
Even before the most recent amendment, these provisions
criminalized the act of knowingly providing ``material support or
resources'' to terrorist acts and to foreign terrorist organizations,
or FTOs, designated by the Secretary of State. ``Material support or
resources'' addresses a broad range of conduct--all along the terrorist
chain--including providing financial services, lodging, safe houses,
false documentation or identification, weapons, communications
equipment, and explosives. Section 2339A, passed in 1994, criminalizes
knowingly providing material support or resources to a particular crime
of terrorism, such as a bombing plot. Section 2339A thus focuses upon
how the material support or resources are to be used.
Section 2339B, which became operational in October 1997,
criminalizes the knowing provision of material support or resources to
a foreign terrorist organization such as al Qaeda or Hamas,
irrespective of the provideors' violent intent. Section 2339B thus
focuses upon who receives the material support or resources. There are
presently 40 designated FTOs ranging from Al Qaeda to Abu Musab al-
Zarqawi's Jama--at al-Tawhid wa--al-Jihad to the Palestinian
rejectionist groups, such as the Palestinian Islamic Jihad, to narco-
terrorist groups, such as the Revolutionary Armed Forces of Columbia
(FARC).
Thanks to Congress, the material support laws contain the inchoate
offenses of attempt and conspiracy, which allow law enforcement the
legal basis to intervene at the very early stages of terrorist
planning, potentially several steps removed from the execution of
particular attacks. This capability is crucial to the prosecution of
terrorist supporters who may not themselves be prone to violence. By
allowing for the prosecution of someone who intends to provide support
to terrorists and takes an affirmative step in that direction, we can
successfully interdict the support without waiting for it to reach the
terrorist, let alone waiting until it culminates in a terrorist attack.
Over the past several years, our concerted efforts have led to the
identification, disruption or demise of terrorist support conspiracies
throughout the country. Some of these cases have involved individuals
who are operational. Many have not. The material support statutes you
have provided us which criminalize such conduct has assisted the
Justice Department in securing criminal charges and convictions against
terrorists and their supporters.
CONVICTIONS
A number of victories in recent months illustrate these powerful
law enforcement tools and how they operate in practice.
On April 27, 2005, a New Jersey jury convicted Hemant Lakhani, a
United Kingdom national, on all counts in the indictment. Among these
charges, Lakhani was convicted of attempting to provide material
support to terrorists, pursuant to 18 U.S.C. Section 2339A, for his
role in attempting to sell an antiaircraft missile to a man whom he
believed represented a terrorist group intent on shooting down a United
States commercial airliner.
On April 22, 2005, a jury convicted Ali Al-Timimi, a speaker and
spiritual leader in Northern Virginia, of all ten counts alleged
against him. This prosecution was the second phase of the Northern
Virginia jihad case involving a group of individuals who were
encouraged and counseled by Al-Timimi to go to Pakistan to receive
military training from Lashkar-e-Taiba in order to fight against
American troops. The first phase of prosecution involved direct
convictions under the material support statutes; Al-Timimi's firearms
convictions were based upon, in part, the material support statutes
which served as the predicate crimes of violence for the firearms
offenses.
On March 10, 2005, after a five-week trial, a jury in Brooklyn, New
York, convicted two Yemeni citizens, Mohammed Ali Hasan Al-Moayad and
Mohsen Yahya Zayed, of a variety of material support charges including
conspiring to provide material support to al Qaeda and Hamas, pursuant
to 18 U.S.C. 2339B. Al-Moayad, the imam of a large Yemeni mosque and an
influential political leader, was caught on undercover tape recordings
discussing the collection of monies from the al Farook mosque in
Brooklyn and his desire to distribute the monies to al Qaeda and Hamas
to finance violent jihad.
These cases demonstrate some important principles:
First, that 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 Al-Moayad
prosecution was significantly aided by our German colleagues, who
worked alongside the FBI in the undercover operation, and made the
arrests 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. In the Lakhani prosecution,
witnesses from the United Kingdom and Russia testified in New Jersey
federal court about the assistance they provided their United States
counterparts. In the Al-Timimi prosecution, the British and Australians
provided significant assistance. In turn, the United States has
reciprocated and, for example, last week two convicted conspirators
from the Northern Virginia jihad case testified via video-
teleconference in an Australian court proceeding.
Second, successful indictments and prosecutions often lead to
further successes in combating terror. We are able to leverage the
intelligence collected from cooperators in our criminal cases to
discover and track down new leads and evidence. The Al-Moayad
investigation uncovered his contacts in Brooklyn, including a Brooklyn
associate who had transferred over $20 million overseas through the
bank account of his tiny ice cream store. Those Brooklyn associates
have been charged with various federal crimes ranging from unlicensed
money remitting to making false statements as part of the Department's
disruption approach. In the Al-Moayad trial, prosecutors presented the
testimony of Yaya Goba, one of the convicted defendants in the
Lackawanna case. 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. Ahmed Abdel Sattar, an Islamic Group (AGAI) leader and
associate of the Blind Sheik Omar Abdel Rahman, was convicted of
plotting to kill and kidnap persons in a foreign country, in a trial
which included evidence highlighting his crucial participation in
drafting and disseminating a legal fatwah in Sheik Abdel Rahman's name
urging the murder of Jews wherever found. Lynne Stewart, a criminal
defense attorney who has represented the Sheik, and Mohammed Yousry, an
Arabic interpreter for the Sheik, were convicted on both substantive
and conspiracy counts of providing, and concealing the provision of,
material support or resources, knowing that such support was to be used
in carrying out a conspiracy to kill persons in a foreign country, in
violation of 18 U.S.C. 2339A.
We also have continued to achieve convictions through guilty pleas.
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 an important cooperation guilty plea to
violations of both Sections 2339A and 2339B, among other charges, from
a Pakistani-American involved in al-Qaeda related procurement, training
and recruitment. The defendant, Mohammed Junaid Babar, arranged for a
month-long jihadi training camp, at which attendees received training
in basic military skills, explosives and weapons. Among the attendees
were individuals who were plotting to bomb targets abroad.
INDICTMENTS
The operation of the material support statutes is also illustrated
by a number of pending prosecutions. Last month, the 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. Dhiren Barot, Nadeem
Tarmohamed and Qaisar Shaffi, all British nationals, are charged with
assisting in a plot to attack the New York Stock Exchange and the
Citigroup building in New York, the Prudential Building in New Jersey,
and the International Monetary Fund and World Bank buildings in
Washington, D.C.
Prosecutors in Miami superseded another indictment charging a
Section 2339A violation, adding Kihah Jayyoussi as a defendant. A U.S.
citizen, Jayyoussi was arrested on March 27, 2005 at the airport in
Detroit upon his return from a trip to Qatar. According to the
superseding indictment, Jayyousi, Adham Hassoun and Mohammed Youssef
conspired to fund and support violent jihad abroad. These cases
demonstrate how Section 2339A can be used in the absence of admissible
evidence that the particular support was provided to a group that had
been formally designated as foreign terrorist organization.
Another Sec. 2339A case involves Babar Ahmad and Azzam
Publications, charged in Connecticut in October, 2004. Ahmad, a
resident of the United Kingdom, allegedly operated and directed Azzam
Publications and its family of Internet websites, located in the United
States and around the world, to recruit and assist the Chechen
mujahideen and the Taliban and to raise funds for violent jihad
overseas. Along with other Internet media allegedly created and
operated by Ahmad, these sites gave instructions for travel to Pakistan
and Afghanistan to fight with these groups and for surreptitious
transfer of funds to the Taliban; they also solicited military items
for these groups, including gas masks and night vision goggles.
Ahmad has been charged with crimes that include providing material
support to terrorists under 18 U.S.C. 2339A. We describe this
indictment to you--in part--to highlight the use of the Internet by
those who support their violent goals through, among other conduct,
recruitment. This is criminal conduct and is not protected by the, not
rights protected by the First Amendment. The government must meet the
challenges posed by the technology of the twenty-first century through
the use of all our tools, including criminal investigation and
prosecution.
Meanwhile, we have a couple of important pending Sec. 2339B cases.
In Florida, the trial of four of the defendants in the Sami al Arian
case is scheduled to begin next week. In a 53-count indictment, Sami
Al-Arian and eight other defendants, including Ramadan Shallah, the
acknowledged worldwide leader of the Palestinian Islamic Jihad (PIJ),
have been charged with using facilities in the United States, including
the University of South Florida, as the North American base for PIJ,
providing material support to PIJ, and conspiring to murder individuals
abroad, among other offenses. PIJ was designated as a foreign terrorist
organization in 1997, and has claimed responsibility for suicide
bombings in the Middle East that have killed U.S. citizens.
In August 2004, a Chicago grand jury indicted Mousa Marzook,
Abdelhaleem Ashqar, and Mohammad Salah for participating in a 15-year
racketeering conspiracy in the United States and abroad to illegally
finance Hamas's terrorist activities in Israel, the West Bank, and Gaza
Strip, including providing money for the purchase of weapons. The
indictment, which for the first time identifies Hamas as a criminal
enterprise, also charges Salah under 18 U.S.C. Sec. 2339B for providing
material support to Hamas. All three defendants allegedly used bank
accounts in the United States to launder millions of dollars for Hamas,
which has publicly claimed credit for engaging in suicide bombings that
resulted in the deaths of Americans and other foreign nationals in
Israel and the West Bank, as well as Israeli military personnel and
civilians.
These cases, plus the other matters that have already resulted in
convictions, demonstrate the manner in which we have come to rely upon
the material support statutes.
LEGAL VICTORIES
We have also obtained important, favorable appellate court rulings
in recent months that are vital to the enforcement of Section 2339B. In
United States v. Afshari and United States v. Hammoud, a panel of the
Ninth Circuit and the en banc Fourth Circuit, respectively, held that a
criminal defendant charged with providing material support to a
designated FTO under Section 2339B may not challenge the validity of
the underlying FTO designation in the course of the criminal
prosecution. The Afshari district court opinion, which was overturned
by the appellate court, had raised the untenable specter of multi-
district challenges to an FTO designation and the resulting
criminalization of terrorist conduct in one district but not another.
The appellate courts agreed with the government in both cases that the
validity of an FTO designation is not an element of the offense under
18 U.S.C. 2339B, consistent with language explicit in the FTO statute
to that effect.
Furthermore, in Humanitarian Law Project v. Ashcroft, the Ninth
Circuit held en banc that there is no First Amendment right to provide
material support to the ostensibly humanitarian or political activities
of a designated FTO. Similarly, in United States v. Hammoud, the Fourth
Circuit en banc rejected claims that the material support prohibition
contained in Section 2339B impermissibly encroached on First Amendment
rights of free association and expression. In the words of the Ninth
Circuit, ``giving support intended to aid an organization's peaceful
activities frees up resources that can be used for terrorist acts.''
THE FUTURE AND THE INTELLIGENCE REFORM ACT
Looking to the future, we are confident that the amendments to the
material support statutes and foreign terrorist organization provisions
of the Immigration and Nationality Act, passed by Congress and signed
by the President in December, will significantly enhance the
capabilities of prosecutors to eradicate terrorist activity at early
planning stages. These amendments--contained in the Intelligence Reform
and Terrorism Prevention Act of 2004--provide prosecutors important new
and enhanced tools in the fight against terrorism here and abroad. We
wish to thank the members of this Subcommittee for ensuring that these
important amendments were included in the intelligence reform
legislation, and in particular wish to commend Congressman Green for
his leadership on this issue.
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 definition formerly was limited to specified types of
material support and ``other physical assets.'' Congress's action to
clarify this definition assures that no form of terrorist assistance or
activity will escape the reach of the statute.
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.'' These changes should
eliminate some of the uncertainty generated by adverse court decisions
rejecting the government's interpretation of those terms. For example,
it is now clear that the provision of ``personnel'' to a terrorist act
or organization includes providing oneself. Congress also clarified
that no one could be prosecuted for providing ``personnel'' under
section 2339B unless the individual(s) were provided to manage,
supervise or otherwise direct the terrorist organization or,
conversely, to work under its direction or control. These changes
respond to a few court decisions which opined that the term
``personnel'' could be vague. The amendments also defined the terms
``training,'' and ``expert advice or assistance,'' in response to
perceived constitutional problems identified by the Ninth Circuit or
the district court in Humanitarian Law Project. We are hopeful that
these amendments will achieve their desired effect, especially in light
of the Ninth Circuit's recent orders in HLP vacating the district
courts' injunctions against enforcement of the terms ``training,''
``personnel,'' and ``expert advice or assistance'' and remanding to the
district court in light of changes made by the December legislation.
Two other changes to the material support statutes are also
significant. First, the recent amendments expand the jurisdictional
basis for material support charges. Under the old jurisdictional
provisions, Section 2339B was limited to activity occurring within the
United States, and to overseas activity committed by persons ``subject
to the jurisdiction of the United States.'' Now, among other things,
Section 2339B also reaches conduct by any lawful permanent resident
alien anywhere in the world, as well as stateless persons who
habitually reside in the United States. Jurisdiction also extends to
conduct by an alien offender outside the United States who is later
brought to the country or found here, regardless of whether the alien
is a permanent resident alien. The rationale for the latter expansion
is that those aliens outside the United States who furnish material
support or resources to an FTO endanger the national security of the
United Sates and should be subject to prosecution if they are present
here.
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 FTO or that it engages in
certain terrorist conduct. The government is not required to show that
the material support was provided for the express purpose of furthering
the FTO's terrorist activities, a standard at odds with the purposes of
Section 2339B.
The Intelligence Reform Act also created a new ``material support''
offense, 18 U.S.C. 2339D, that explicitly criminalizes the receipt of
military-type training from a foreign terrorist organization. Under the
statute, ``military-type training'' includes ``training in means or
methods that can cause death or serious bodily injury, destroy or
damage property, or disrupt services to critical infrastructure, or
training on [sic] the use, storage, production, or assembly of any
explosive, firearm or other weapon, including any weapon of mass
destruction[.]'' 18 U.S.C. Sec. 2339D(c)(1).
Section 2339D fills an arguable gap in 18 U.S.C. Sec. 2339B, which
criminalizes providing material support, including training, to a
foreign terrorist organization, but does not explicitly prohibit
receiving training from a foreign terrorist organization, as Section
2339D now does. Thus, for post-enactment conduct, the prosecutor has a
charging option that is a narrowly tailored fit and improves our
ability to apprehend those who threaten our homeland.
Section 2339D is also a potent remedy for the serious problems
created by the steady flow of recruits to terrorist training camps.
Various investigations have uncovered individuals who have traveled
overseas to training camps to receive military-style training. These
individuals, who in many cases have received firearms and explosives
training, appear to be preparing to conduct terrorist activity or
violence and pose a clear threat here and abroad.
MATERIAL SUPPORT TO TERRORISM PROHIBITION IMPROVEMENTS ACT
The amendments to the material support statutes contained in
Intelligence Reform and Prevention Act of 2004 are currently scheduled
to sunset at the end of 2006. As described above, these amendments are
critical to maintaining the efficacy of the material support statutes
as a potent prosecutorial tool in combating terrorism. The Department
therefore supports renewing these revisions to the material support
statutes and we commend Senator Kyl for introducing the Material
Support to Terrorism Prohibition Improvements Act (MSTPIA), which would
do just that.
Although the Department has not yet had a chance to evaluate
thoroughly all of the provisions in the proposed legislation, repealing
the sunset on those amendments to the material support statutes
contained in the Intelligence Reform and Terrorism Prevention Act would
represent a significant step forward, ending uncertainty in this area
of the law and ensuring that prosecutors will not lose a critical tool.
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 the 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. To put it
simply, such aliens represent a clear and present danger to the safety
of the American people and should not be allowed to enter nor remain
present in the United States.
The legislation proposed in the Senate also contains other
worthwhile provisions, and the Department looks forward to working with
members in the Senate and the House on this important piece of
legislation.
CONCLUSION
The changes recently enacted in the Intelligence Reform Act have
built upon, and enhanced, the work of prior Congresses in the USA
PATRIOT Act, the Anti-Terrorism and Effective Death Penalty Act of 1996
and the Violent Crime Control and Law Enforcement Act of 1994.
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 providing us
the opportunity to discuss how the material support statutes are being
used around the country, consistent with our constitutional values, to
fight terrorism in the criminal justice system. We would also like to
thank this Committee for its continued leadership and support.
Together, we will continue our efforts to secure justice and defeat
those who would harm this country.
Mr. Coble. Thank you, Mr. Sabin.
Mr. Arulanantham? Am I close?
Mr. Arulanantham. You're absolutely right, Chairman.
Mr. Coble. Thank you, sir. Good to have you with us, Mr.
Arulanantham.
TESTIMONY OF AHILAN T. ARULANANTHAM, STAFF ATTORNEY, SOUTHERN
CALIFORNIA OFFICE, AMERICAN CIVIL LIBERTIES UNION
Mr. Arulanantham. I'd like to thank the Subcommittee for
giving me this opportunity. I'm a staff attorney at the ACLU of
Southern California. I work on cases involving the material
support of terrorism. But I'm also here today because I saw
firsthand, with my own eyes, how these material support of
terrorism laws can impede important humanitarian efforts.
I was born and raised in the U.S., but my family is from
Sri Lanka. And I was on a plane going to that country on
December 26 of 2004, when the tsunami struck. It killed 40,000
people in Sri Lanka, alone. I landed the next day, and spent
the next 3 weeks doing relief work there with a variety of
different humanitarian organizations. The things that I saw
changed me forever.
I saw and spoke with mothers and fathers who had watched
their children just get dragged away by the ocean. I saw whole
villages--nurseries, hotels, roads, trees, everything--just
washed away by the sea. And the situation on the ground in Sri
Lanka was terrible. The tsunami would have been terrible, no
matter where it had hit; but it was worse in Sri Lanka because
that's a country that's been torn by civil war for about 20
years. And now about a fifth of the territory of Sri Lanka is
controlled by a group called the ``Liberation Tigers of Tamil
Eelam,'' LTTE, and that's a designated terrorist organization
under the State Department's list.
As a result, it is illegal to give material support to the
LTTE. It's a violation of the criminal laws, and also
deportable under the immigration laws. Now, in the territory
that it controls, the LTTE is, for all practical purposes, the
government. They run courts; they run health clinics; they run
orphanages. They even have their own traffic police. But the
tsunami didn't differentiate between the areas of Sri Lanka
under LTTE control and the areas under government control.
Thousands of people in the LTTE-held areas were killed.
Thousands more were displaced, and desperately in need of food,
shelter, clothing, and medicine.
But the material support laws don't have a general
exception for humanitarian assistance. So for example, if
somebody wants to, say, give any property or service,
intangible or otherwise, to a designated group, that's
criminalized under the current material support laws.
Now, there is an exception for medicine and for religious
materials, but in my experience on the ground out there, I
found that exception to be sorely inadequate. The most serious
medical problems that we saw, and which I understand is common
in a situation of massive displacement, is the spread of
infectious diseases. And this happens through things like bad
drinking water; inadequate sanitation, like inadequate toilets;
or lack of shelter. But the material support laws don't have
exceptions for those things.
So for example, if a public health expert wanted to talk to
the LTTE about how to set up their refugee camps so as to
decrease the spread of infectious diseases, that could be
expert advice or assistance under the PATRIOT Act provisions
added to the material support laws. Similarly, if somebody
wanted to give toilets for the LTTE to put into their refugee
camps, the camps that they run, that could be any property,
tangible or intangible. People who want to train health workers
of the LTTE to do trauma counseling for children--which is so
important when children have seen their parents washed away in
the ocean--are arguably giving training or personnel under the
statute as its currently defined. You can give them medicines
for life-saving surgery, but you can't send a surgeon if there
is nobody there to do the surgery to save people's lives.
Now, these concerns are not just theoretical. I talked to
people when I was there. I talked to doctors who were scared to
go to work in the LTTE-held territories because they were
worried about criminal liability under our laws. I talked to
humanitarian groups that were scared to operate in those areas
and to do projects in those areas.
And as I understand it, the law is actually going to get
much worse on this subject, with the passage of the REAL ID
Act; because under the immigration material support laws, it's
soon going to be true that an organization that actually gives
material support will itself be a terrorist organization. So a
doctor who goes to work for a humanitarian organization that
itself works with the LTTE will be engaging in material
support, even if they never go to the LTTE or contact a person
who is with the LTTE.
Now, we believe that the solution to this problem is to
make clear that the law does not punish genuine, real
humanitarian assistance, by requiring the Government to show an
intent to further terrorist activity. Now, an intent standard
wouldn't prevent the Government from doing important
prosecutions against terrorists. I mean, in the examples that
Mr. Sabin was giving, for example, if somebody's sending an
anti-aircraft missile, everyone knows that's not humanitarian
assistance. And juries in this country are not going to be
sympathetic to implausible claims by sham humanitarian groups.
But there are other humanitarian groups and individuals who
have to work with terrorist organizations; not because they
like them or believe in them or support their ideology, but
because it's the only way to help the people who are
unfortunate enough to live under those organization's control.
And this is not a hypothetical concern. I remember the faces of
the people in those camps. Their needs were very, very real.
This Congress has an opportunity now to correct some of the
unintended consequences of the material support laws. And I
believe that's what we're talking about here. And I hope,
Chairman, that the Committee will take the opportunity to do
that. Thank you very much.
[The prepared statement of Mr. Arulanantham follows:]
Prepared Statement of Ahilan T. Arulanantham
Chairman Coble, Ranking Member Scott and members of the
Subcommittee:
Thank you for giving me the opportunity to speak today at this
critical oversight hearing on two amendments to the law criminalizing
material support of terrorism: Section 805 of the USA PATRIOT Act and
Section 6603 of the Intelligence Reform and Terrorism Prevention Act of
2004.
I am a staff attorney at the ACLU of Southern California, where I
have worked on several cases involving the issue of material support of
terrorism. However, I am also here today because I have seen first-
hand, with my own eyes, how those laws have impeded humanitarian relief
operations in the worst natural disaster in recent memory.
I was born and raised in the United States, but my parents and
extended family are from Sri Lanka. I was on a plane to visit relatives
there last December, in the air between Los Angeles and Singapore, when
the tsunami struck--killing 40,000 people in Sri Lanka alone. I landed
there a day later, and spent the next three weeks doing relief work
with several different humanitarian organizations.
The suffering and devastation I saw was unimaginably horrible. My
first mission was to a displaced persons camp in eastern Sri Lanka,
with a relief team from the Hospital Christian Fellowship. At that camp
we treated about 200 people. Every person I spoke with had lost at
least one family member to the tsunami. I spoke with mothers and
fathers who had been unable to keep hold of their children as they were
sucked away by the sea, and parents who had been forced to choose, in a
split second, which of their children to save because they could not
grab on to all of them. I met children who saw their families, their
homes, their villages--everything they had known--disappear in an
instant. Seeing the destruction of whole towns, places of worship,
roads, trees--everything--was a humbling experience that is indelibly
etched in my memory.
If this had happened anywhere in the world, even here, the
devastation and its aftermath would have been terrible to behold. But
it was made worse because it happened in Sri Lanka--a country that has
been torn by civil war for over twenty years. About one fifth of the
territory of Sri Lanka is controlled by the Liberation Tigers of Tamil
Eelam (LTTE), an armed group fighting against the government of Sri
Lanka. The LTTE has been designated as a Foreign Terrorist Organization
by the State Department pursuant to Section 219 of the Immigration and
Nationality Act, 8 U.S.C. Sec. 1189. As a result, it is a violation of
law to give material support to that group. Material support is defined
very broadly, as I will discuss below, and consequences for violating
the law are severe. Non-citizens face deportation, while citizens and
non-citizens alike face civil forfeiture and criminal penalties up to
twenty years in prison. 8 U.S.C. Sec. 1227(a)(4)(B); 18 U.S.C.
Sec. 2339B.
Although the LTTE is designated as a terrorist organization, in the
territory it controls it functions as a government. The LTTE runs a
court system, a police force, orphanages, a set of health clinics, and
even its own traffic police. It is for all practical purposes the
government for well over 500,000 people who live in the LTTE-controlled
areas. And, because the LTTE governs its territory as an authoritarian
military regime, it exerts a significant amount of control over all of
the institutions in its territory. As with civil war situations around
the globe--Somalia, Indonesia, Sudan, Ethiopia, to name a few--
providing humanitarian aid to the most needy people in Sri Lanka almost
inevitably requires working in areas controlled by--and dealing
directly with--a group that is designated as, or at least meets the
very broad definition of, a foreign terrorist organization.
Unlike our material support laws, the tsunami did not differentiate
between areas under the LTTE's control and those controlled by the Sri
Lankan government. Thousands of people living in LTTE-held territory
died, and hundreds of thousands more were displaced into camps, many
having lost some or all of their family members and in urgent need of
food, shelter, and medical care. In fact, because the LTTE controls
large segments of the eastern seaboard of the island, which was most
directly hit by the tsunami, people in LTTE territory were some of the
most severely affected.
Sadly, though, our material support laws contain no exception for
support even if it is necessary to save the lives of people who happen
to live in LTTE-held territory. In fact there is no exception for
humanitarian assistance at all, except for ``medicine and religious
materials.'' While this exception is important, it is sorely inadequate
to meet the needs of people caught in humanitarian crises.
For example, in the first few days of relief work, we focused on
treating people's immediate medical needs--injuries, wounds,
dehydration, respiratory infections--with medicines and dressings. Such
assistance would probably fit under the exception for ``medicine.'' But
within a week, the most serious public health problems for the hundreds
of thousands of displaced people changed. In situations of mass
displacement, the greatest killer is often infectious disease, which
spreads through contaminated water, inadequate sanitation, and exposure
from a lack of shelter. To prevent outbreaks, humanitarian
organizations must provide displaced people with water purification
systems, toilets, tents, and other such goods which are not
``medicine'' but nonetheless serve an absolutely critical medical
function.
Yet our material support laws do not appear, as a practical matter,
to allow humanitarian organizations to provide such vital resources to
people living under the LTTE's control, because such resources
generally cannot be provided without providing ``material support'' to
the LTTE as the statute defines that term. For example, as currently
written the law defines material support to include ``any property,
tangible or intangible, . . . or service.'' This definition appears to
encompass much of what I saw was needed for humanitarian relief work,
including water, water purification systems, sanitation equipment such
as toilets, all forms of shelter (including even children's clothing),
and many of the materials needed for longer-term reconstruction such as
boats and building materials. Because the law makes no distinction
between lethal aid--such as weapons or ammunition--and non-lethal aid,
a group seeking to provide toilets to the LTTE's health ministry to
take to camps in an area under its control may be violating the
material support laws.
The statute also criminalizes the provision of expert advice or
assistance (if derived from specialized knowledge).\1\ Thus, a public
health expert who wants to advise the LTTE--and the LTTE is the
government for all practical purposes in the areas it controls--about
how to set up camps so as to minimize the spread of diseases, such as
dysentery or cholera, probably cannot do so under the statute. Indeed,
even training psychological counselors working with the LTTE in their
territory--which is a crucial need for children who lost parents in the
tsunami--may violate the ``training'' or ``personnel'' provisions, as
long as the training imparts a ``specific skill'' and the counselors
work under the LTTE's ``direction and control.''
---------------------------------------------------------------------------
\1\ See 18 U.S.C. Sec. Sec. 2339A, 2339B, as amended by the
Intelligence Reform and Terrorism Prevention Act of 2004, at Sec. 6603,
Pub. L. No. 108-458 and the USA PATRIOT Act Sec. 805, Pub. L. No. 107-
56.
---------------------------------------------------------------------------
As a result, qualified people who have the willingness and ability
to help those affected by the disaster are scared to do so. I have
spoken personally with doctors, teachers, and others who want to work
with people desperately needing their help in Sri Lanka, but fear
liability under the ``expert advice,'' ``training,'' and ``personnel''
provisions of the law. I also know people who feared to send funds for
urgent humanitarian needs, including clothing, tents, and even books,
because they thought that doing so might violate the material support
laws. I have also consulted with organizations, in my capacity as an
ACLU attorney, that seek to send money for humanitarian assistance to
areas controlled by designated groups. I have heard those organizations
express grave concerns about continuing their work for precisely these
reasons.
Unfortunately, the fears of these organizations are well-justified.
Our Department of Justice has argued that doctors seeking to work in
areas under LTTE control are not entitled to an injunction against
prosecution under the material support laws, and it has even succeeded
in winning deportation orders under the immigration law's definition of
material support, for merely giving food and shelter to people who
belong to a ``terrorist organization'' even if that group is not
designated. See Humanitarian Law Project v. United States Department of
Justice, 393 F.3d 902 (9th Cir. 2004) (en banc); Singh-Kaur v.
Ashcroft, 385 F.3d 293, 299-301 (3d Cir. 2004).
Last year, Congress passed a law that was supposed to clarify the
intent needed to prosecute for ``material support.'' Under section 6603
of the Intelligence Reform and Terrorism Prevention Act of 2004, the
government must prove that assistance was provided knowing that the
organization had been designated as a ``foreign terrorist
organization'' or that the organization had been involved in
international terrorism. This amendment did not provide comfort to the
doctors, relief workers and organizations with whom I worked. Many in
the humanitarian aid community are well aware of the LTTE's
designation, which has been the subject of a number of high-profile
court decisions. Even without knowing of the designation, anyone with
even a passing understanding of Sri Lanka knows that the LTTE and the
government are involved in a violent conflict. Knowledge that the LTTE
has engaged in violent acts would probably satisfy the intent
requirement under current law. To provide desperately needed drinking
water, blankets, clothing or tents in LTTE-held areas may require
working with the LTTE officials who are the de facto government in that
area. Thus, our law puts aid workers in the untenable position of
having to choose between providing assistance, knowing they are
exposing themselves and their organizations to a risk of exclusion from
the United States, deportation, civil forfeiture or even criminal
prosecution, or leaving desperate victims of natural calamity to face
the disaster on their own.\2\
---------------------------------------------------------------------------
\2\ The government may point to the exception in 18 U.S.C.
Sec. 2339B(j) for activities that would otherwise constitute providing
``personnel,'' ``training'' or ``expert advice or assistance'' if
permitted by the Attorney General and Secretary of State. This
exception, of course, makes vital assistance dependent on the politics
of the incumbent administration. Furthermore, the exception still bars
much-needed humanitarian aid because it does not cover food, water,
blankets or other genuine humanitarian items. Finally, there will not
be enough time, in many humanitarian crises, to obtain a special
license even if the licensing system is working well.
---------------------------------------------------------------------------
Indeed, the current material support provision with its limited
exceptions and extremely broad intent requirement leads to truly
irrational results. A humanitarian organization may send medicine to
aid in life-saving surgeries, but arguably cannot send a doctor to
perform those surgeries. Medicine is useless to people dying of
starvation, but the law contains no exception for food.
Most worrisome of all, under provisions currently part of the REAL
ID Act, the situation will likely become even worse. A provision of
that bill will alter the definition of what constitutes a ``terrorist
organization'' in the Immigration and Nationality Act such that
humanitarian groups that provide material support to designated
terrorist organizations will themselves be defined as terrorist
organizations. Thus, a doctor who goes to work for a humanitarian group
that works with both parties to the conflict in Sri Lanka will violate
the immigration code's material support laws, even if he or she never
has any contact with a designated terrorist organization at all. This
change is of critical importance. The law will soon provide an
extremely broad definition of what constitutes a terrorist
organization--a definition that will include groups that engage in
absolutely no violent activities of any kind. Such expansion must be
accompanied by a corresponding narrowing in the definition of what
constitutes material support if we are to prevent our laws from
prohibiting entirely innocent and vitally important humanitarian
activity.
The solution to this problem is for Congress to clarify the law by
requiring the government to prove that individuals charged under the
material support laws actually intended to further terrorist activity
when they provided humanitarian assistance. Without such a standard,
humanitarian organizations and individual volunteers are deterred from
providing vitally needed assistance to victims of disasters like the
tsunami. The people who managed to survive the tsunami should not be
deprived of basic necessities such as food and shelter in their hour of
greatest need simply because they happen to live in an area under the
control of a designated terrorist organization. Denying humanitarian
assistance to such people does not make us safer; giving basic
necessities to these devastated people simply does not undermine our
nation's security.
The government has argued that a rule requiring proof that an
individual actually intended to further terrorist activity will allow
bad actors who provide support to terrorist groups to escape liability.
However, proof of intent has proved a workable standard in a variety of
legal contexts. Reckless disregard of the risk that resources will be
misused could still serve as a basis for prosecution, and ``deliberate
ignorance'' or willful blindness to such misuse could also be punished.
Indeed, implausible claims that a group did not intend to support a
terrorist group are unlikely to succeed in front of juries concerned
about the threat of terrorism. However, groups that carefully screen
and monitor projects to ensure that aid is sent only to those who truly
need it, audit their programs through detailed receipts and written
acknowledgements from beneficiaries, or send their own personnel to
ensure that aid is provided as intended will be able to continue their
work. If a humanitarian organization can show that its work does not
further terrorist activity, it should be free to continue providing
life-saving services in conflict areas such as Sri Lanka.
I was working in Manhattan on September 11, 2001, and I felt the
horror of the terrorist attacks in a very personal way. I believe we
must do everything we can to make our country safe from the scourge of
terrorism. However, as I sit here before you today, the faces of the
people I saw in the camps in Sri Lanka flash before me, and I know
their need. We do not have to choose between national security and our
commitment to help those who are suffering around the globe. Amending
our material support laws to allow vital humanitarian work to go
unimpeded would allow us to fulfill those ideals without undermining
our safety. The victims of the tsunami deserve nothing less.
Mr. Coble. Thank you, Mr. Arulanantham. Good to have all of
you with us.
We've been joined by the distinguished lady from
California, Ms. Waters, and the distinguished gentleman from
Ohio, Mr. Chabot. And as I said, folks, keep in mind, we have
the 5-minute rule against us, as well. So if you could, be
terse in your responses.
Mr. Fine, have you detected any civil liberties violations
by the Justice Department for any PATRIOT Act provision?
Mr. Fine. What I can say, as I reported in my statement, we
have publicized our duties, we have asked for complaints, and
we have received no complaints, with the exception of possibly
one, the Brandon Mayfield matter, that alleged a violation of
the use of a provision of the PATRIOT Act.
Mr. Coble. I went to Guantanamo with another Member of our
Subcommittee, and we were invited to examine an interrogation.
And there's been some talk that that may have been staged. Are
you familiar with any of this information?
Mr. Fine. We are reviewing allegations about abusive
interrogation techniques in Guantanamo; particularly what the
FBI saw, what the FBI reported, how those reports were handled,
and whether any FBI agent possibly participated in any abusive
techniques. We have an ongoing review of that. Our folks have
been down to Guantanamo. So we're actively reviewing the
matter.
Mr. Coble. Well, it appeared to be regular to me. But
admittedly, they had control of the apparatus. But it appeared
to be in order, as I observed it.
Mr. Arulanantham, you state that the LTTE has engaged in
violent acts. Do you think that the LTTE is a terrorist
organization?
Mr. Arulanantham. Well, yes, Your Honor--excuse me, Your
Honor--excuse me, Chairman. I'm used to litigating in court.
Mr. Coble. You just promoted me,
Mr. Arulanantham.
Mr. Arulanantham. Yes, Chairman, under the statute, if an
organization is designated, and even if it's not designated, if
it's two or more people that have engaged in the use of a
weapon for a violent purpose or something like that, it's a
terrorist organization. Apart from that, there's no doubt the
LTTE has a huge armed fighting force. There's absolutely no
doubt about it, Your Honor--Chairman.
Mr. Coble. Well, Mr. Sabin and Mr. Katsas, let me propose a
hypothetical for you. Has the Department of Justice
prosecuted--it may or may not be a hypothetical. Has the
Department of Justice prosecuted anyone for aiding the victims
in the tsunami tragedy, regardless of where they lived?
Mr. Sabin. No. No criminal prosecutions have been filed in
that regard.
Mr. Coble. Do you want to weigh in on that, Mr. Katsas?
Mr. Katsas. That's correct.
Mr. Arulanantham. Mr. Chairman?
Mr. Coble. Yes, sir.
Mr. Arulanantham. May I have an opportunity just briefly to
comment on that? Which is just to say that I do think it's
important to note that a lot of humanitarian organizations fear
engaging in activity because they're worried about criminal
liability. So I think if the law makes something illegal,
that's going to be a concern in terms of humanitarian groups,
whether or not they're actually prosecuted as a practical
matter later on down the line. It deterred people from doing
things in Sri Lanka, Your Honor--Mr. Chairman.
Mr. Coble. I know that I recall having seen U.S. service
personnel extending aid to the victims during that episode--at
the time, I guess, when you were there.
Mr. Arulanantham. Yes, Mr. Chairman. I think the tsunami
struck both in southern Sri Lanka and in northeast Sri Lanka.
It's the northeastern part of the country that is where the
conflict zone is and where the LTTE operates. I am fairly
certain from the time that I was there that there were no
American military service personnel in the northeast part of
the country. I know Kofi Annan was not allowed to go to the
northeast part of the country. And that was where a lot of the
really horrible damage was.
Mr. Coble. Mr. Sabin and Mr. Katsas, I'm going to come back
to you all again. Should the Government be required to show
that a donor specifically intended to aid terrorist activity
when he or she gives assistance? Say, to al Qaeda, for example.
Mr. Sabin. No. Should the--one more time, Chairman? I'm
sorry.
Mr. Coble. Should the Government be required to show that
the donor specifically--with intent.
Mr. Sabin. There should be--there is a knowing requirement
in the statute. To impose a specific intent requirement would
be contrary to what was the standard passed in the Intelligence
Reform Act back in December, and would be a significant problem
for criminal prosecutions.
If I can expound, Congress passed the material support
statutes. The legislative intent was to not distinguish, for
groups like Hamas or al Qaeda, humanitarian versus the military
type activities. Specific legislative intent, I would refer you
to Senator Feinstein's comments, ``I simply do not accept that
so-called humanitarian works by terrorist groups can be kept
separate from their other operations. I think the money will
ultimately go to bombs and bullets, rather than babies; or,
because money is fungible, free up other funds to be used on
terrorist activities.''
So you have the concept of fungibility; the idea that in
order to address the entirety of the terrorist support, it is
the network; not just Richard Reed, who was operational on the
plane, but those individuals who are providing the means,
writing the checks, providing the identification, the means by
which those violent activities could occur.
We cannot separate between Hamas' humanitarian works--which
frees up the resources so that they can do their deadly
operations. It also provides legitimacy. If you have groups of
individuals providing to al Qaeda monies for so-called social
services or humanitarian services, that provides legitimacy for
the group that is continuing to conduct violent action.
Mr. Coble. Well, now my red light--it appears, Mr. Katsas,
if you will hold that, I will get a second round. Don't forget
where you are. But my red light is on, so I will yield to the
gentleman from Virginia, Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman. I guess this is for Mr.
Sabin. How do you get on the list to begin with, the FTO list?
Mr. Sabin. There's an administrative process that has been
scrutinized by the D.C. Circuit. It is a designation by the
Secretary of State of the United States, in consultation with
the Attorney General and the Secretary of Treasury. An
administrative record is compiled, and the designation occurs
after publication. There are presently 40 foreign terrorist
organizations so designated under that procedure.
Mr. Scott. You said ``foreign.'' Can an American group be
designated?
Mr. Sabin. No. By definition, it is a foreign terrorist
organization. So it must be a foreign entity; it must be a
terrorist organization with harm or threat to the interests of
the United States national security; and it must be an
organization, as opposed to individuals.
A separate structure exists under the International
Emergency Economic Powers Act, known as ``IEEPA,'' involving
individuals.
Mr. Scott. If you feel you are wrongfully designated, can
you try to get off the list?
Mr. Sabin. Yes, an organization has the ability to
challenge that in court. And such challenges have occurred in
the D.C. Circuit--in the D.C. court system.
Mr. Scott. And if they don't bother to try to get off the
list, anyone who donates to that organization is committing a
Federal crime?
Mr. Sabin. The system that Congress has passed is a
transparent mechanism by which individuals who have the
requisite, knowing intent to provide funds or any kind of
material support or resources to that foreign terrorist
organization would be committing a violation of U.S. law.
Mr. Scott. Now, this intent, do you have to know that it's
been designated?
Mr. Sabin. Yes. As delineated in the Intelligence Reform
and Terrorism Prevention Act, and as the Ninth Circuit Court of
Appeals articulated, you have to know that the entity has been
designated, or that it has engaged in terrorist activity. So
there is a knowing requirement that has been articulated by
Congress, by the courts, and executed and implemented by the
Justice Department.
Mr. Scott. Yes, but the knowing is knowing that it's been
designated.
Mr. Sabin. It's ``or.'' It's ``or.'' Either designated, or
that you knew that they were involved in terrorist activity.
Mr. Scott. Okay. If you make a charitable contribution for
what you think is humanitarian aid, tsunami relief, to an
organization that's on the list, that's easy, if you knew it
was on the terrorist list. What if you didn't know it was a
terrorist organization, but in fact it is a terrorist
organization?
Mr. Sabin. We would have to prove a knowing violation. So
that if under your hypothetical the Government can't meet its
burden of proof beyond a reasonable doubt that it was a knowing
violation of the statute, we cannot bring and obtain a
conviction under this law.
Mr. Scott. Well, in one of the examples that was given,
you're trying to get humanitarian relief, and the only game in
town is a terrorist organization.
Mr. Sabin. Myself and Mr. Katsas can explain that in
detail. When we talk about the tsunami relief, let's break that
down into specific components. We applaud the generosity and
the spirit of the American people in order to provide funds for
those kinds of victims. You cannot--who is the assistance being
provided to? Is it the foreign terrorist organization? If
``Yes,'' then it is a violation of the statute.
If it is being provided to an individual who is a victim,
and that victim is also under the direction and control of the
foreign terrorist organization, yes, it would be a violation of
the criminal statute.
If that victim is in the area, but is not a member under
the direction and control of the foreign terrorist
organization, it would not be a violation of criminal law to
bring a charge.
What kind of assistance is being provided? In addition to
whom it's being provided, what are you providing? Are you
providing----
Mr. Scott. Well, what about expertise? The example was
given, you can give expertise on medical care.
Mr. Sabin. And you could also provide expertise regarding
how you should conduct a military operation for the area.
Mr. Scott. That's right. Now, let's talk about the medical
advice. Is that covered?
Mr. Sabin. No, because explicitly, in section 2339B,
medicine is exempted from the parameters of criminal violation.
Mr. Scott. Well, what about food? Food is not exempt; is
that right?
Mr. Sabin. It is not exempt.
Mr. Scott. So if you're providing expertise on how to
deliver food, is that a Federal crime?
Mr. Sabin. It will depend upon the circumstances, to whom
you are providing and what your knowledge is of that individual
who you are providing it to. And if there is any problem over
clarity under 2339B violation, Congress provided, under
Subsection J in the Intelligence Reform and Prevention Act, a
mechanism by which you can seek guidance as to whether your
conduct is violative of the statute.
Mr. Scott. Did you want to comment,
Mr. Arulanantham?
Mr. Arulanantham. I did, if briefly, Representative, two
things. First, just the very last thing that Mr. Sabin said,
the licensing scheme in Subsection J doesn't cover food. So for
example, if you wanted to provide advice about how to deliver
food aid, or clothing, or tents, or water purification systems,
the statute doesn't allow you to do that. Second----
Mr. Scott. It doesn't allow--you mean you would be
committing a Federal crime if you did?
Mr. Arulanantham. That's correct. You'd be committing a
Federal crime, punishable by up to 20 years in prison, for
doing that. In addition, in the humanitarian law project case,
the Government succeeded--as we've all been talking about--
succeeded in winning the injunction against a doctor who wanted
to give advice about public health services--you know, that the
injunction had to be dissolved so that that could be criminally
prosecuted.
And I think the ambiguity in the statute is that it
distinguishes--it says ``medicines,'' but it doesn't appear to
cover medical expertise or actually medical services, or the
conducting of medical--you know, of medical activity.
And I think it's also important to realize that, as I said,
medical problems are not limited to medicines. Medicine doesn't
do you any good if you're starving. It doesn't do you any good
if you can't get any drinking water. And this statute doesn't
cover those things. It doesn't exempt them.
Mr. Scott. Thank you.
Mr. Coble. Then gentleman's time has expired.
In order of appearance, the gentleman from Texas is
recognized for 5 minutes.
Mr. Gohmert. Thank you, Mr. Chairman. And thank you for
your testimony, gentlemen.
I was curious, Mr. Fine, when you mentioned there was an
investigation ongoing on how Mayfield was inappropriately
identified. And I'm just curious, having heard lots of
testimony on FBI standards for identifying fingerprints, you
know, the points of comparison and what-not--whether it's
seven, ten--that are utilized, how long does it take to figure
that out, as to how he was inappropriately identified?
Mr. Fine. We know how he was inappropriately identified, in
terms of the inaccurate fingerprint. What we want to do is to
consult with experts and to determine whether their systems are
appropriate; whether there's a broader problem in the FBI
fingerprint lab. And we also want to determine what exactly
happened in the Mayfield case: what happened as a result of the
inaccurate fingerprint identification; how he was investigated;
how he was treated; and whether any provision of the PATRIOT
Act was implicated. So we have a very thorough review of this
matter ongoing.
Mr. Gohmert. Okay. Has any of that information about how
the fingerprint was inappropriately identified gone out to,
like, State and local law enforcement?
Mr. Fine. I think the FBI has done its own review of it,
and they have had some experts opine on that. We are actually
looking at that, as well. The extent to which the FBI has
disseminated it more widely, I don't know; although I do
believe that that initial review has been fairly well known in
the fingerprint community.
Mr. Gohmert. All right. Mr. Katsas, you mentioned, I
believe, as I understood you, that if the PATRIOT Act provision
that we're talking about were eliminated, that it would revert
back to language the Ninth Circuit has called suspect. Was that
your statement? What language specifically was that that they
called suspect?
Mr. Katsas. There are three elements in the definition of
material support that have generated litigation against the
Department. One is the provision addressing personnel, a second
is the provision addressing expert advice or assistance, and a
third is the provision addressing training.
Each of those cases was the subject of pending litigation.
And in our view, each of those provisions was constitutional as
originally written; but there were courts that had disagreed,
including the Ninth Circuit with respect to personnel and
training.
We were continuing to litigate those cases but, given the
difficulty in the courts, we thought it perfectly appropriate
to seek clarifying amendments from the Congress which would
serve our narrow litigation interests in the cases but, much
more importantly, would serve the public interest of providing
as clear a notice as possible, consistent with the vigorous
enforcement of this scheme.
Congress enacted clarifying language that the Executive
Branch was happy with, that I assume you all were happy with,
and that caused the Ninth Circuit in the pending cases to order
the district court to take a second look and----
Mr. Gohmert. That goes a little beyond just the specific
language they found suspect. Of course, you're probably aware
of scholarly writings that called the Ninth Circuit opinions
suspect, too, but that's another hearing.
Anyway, Mr. Fine, could you clarify for us the abuse
related to the PATRIOT Act of people being interrogated? Is
that more an abuse of detainees under common law or general
standards, or is that actually a violation of the PATRIOT Act?
Mr. Fine. What I was referring to, Congressman, in terms of
our Guantanamo review, did not implicate the PATRIOT Act. What
it implicated was what the FBI saw, and whether there was
abusive interrogation techniques ongoing. That was not a
provision of the PATRIOT Act that's at issue, but it is
something that we believe is important to review. And it has
civil rights and civil liberties implications and we, at the
request of--on our own, but also at the urging of several
Members of Congress, as well, decided to do a review of that
matter.
Mr. Gohmert. Well, the Chairman had asked the question, had
you seen or heard of any information that the interrogation
that the Chairman observed when he was at Guantanamo was
staged. And I didn't hear an answer to that particular
question.
Mr. Fine. We are not doing a review of everything that the
military did with regard to the interrogations. We have gone
down to Guantanamo, and we have asked our own questions about
what the FBI observed. With regard to whether interrogations
were staged for Members of Congress, I don't know the answer to
that but we have an ongoing review.
Mr. Gohmert. Okay, but the specific question, have you seen
or heard of any information that indicated that they were
staged, yes or no?
Mr. Fine. I think there have been some allegations of that,
yes.
Mr. Gohmert. Okay. Thank you. Thank you, Mr. Chairman.
Mr. Coble. I thank the gentleman.
The distinguished gentleman from Massachusetts, Mr.
Delahunt.
Mr. Delahunt. Yes, thank you, Mr. Chairman.
I want to commend Mr. Fine. And I wish you would please
convey back to the members of your staff my high regard for the
integrity and the independence that they have demonstrated. And
your reports I give serious weight to.
Mr. Fine. Thank you very much. I appreciate that.
Mr. Delahunt. I would like to also know whether you feel,
or whether you make the determination, in response to the
answer by my friend from Texas, Mr. Gohmert, that you have
jurisdiction about the so-called staged interviews.
Mr. Fine. Well, we have limited jurisdiction, as you know.
We have jurisdiction over the Department of Justice and any
actions taken by Department of Justice employees. If there was
any participation in any action by a Department of Justice
employee in that regard, we would have jurisdiction. On the
other hand, if it was the military, we would not.
Mr. Delahunt. Right. I would hope that you would thoroughly
investigate, because I think that's a very serious matter. If
the Congress of the United States is being misled--I don't want
to use the word ``deceived''--in terms of information regarding
whether it implicates the PATRIOT Act or whatever, I think it's
important that we know that.
Mr. Fine. Congressman, if we have any indication of that,
we would bring that forward.
Mr. Delahunt. And I would also commend to the Chairman the
fact that the Bureau of Prisons is still reviewing, after a
year and a half, your recommendation regarding treatment of
inmates, or detainees. I find that just totally unacceptable, a
year and a half. And I would hope that the Bureau of Prisons--
or the Department of Justice would convey to the Bureau of
Prisons that it's time to respond. A year and a half is far too
long. Let's just get that done.
Mr. Sabin.
Mr. Sabin. Yes, sir.
Mr. Delahunt. In terms of the concerns that were expressed
by the representative of the ACLU, I don't know whether you
have a position or not. But how does the concept of a waiver by
the President or his designee, because that--that could be
issued in terms of crisis. Let's call it a humanitarian waiver.
So that situations such as the efforts in South Asia,
particularly regarding the tsunami, we wouldn't have the basis,
if you will, for the deterrence by individuals acting. Do you
have any opinion on that?
Mr. Sabin. And that is what I believe Congress intended in
2339B, Subsection J.
Mr. Delahunt. Well, they might have intended it, but, you
know, the problem is--and I'm sure you realize--you cannot, by
redefining definitions, account for every potential situation.
What I'm suggesting is that it's at the initiative of the
Government, rather than asking an NGO to rely on some mechanism
to seek clarification.
In other words, the President or his designee would be
able, in the kind of situations that occurred back in December
of last year, to respond, so that we don't get into--
particularly into situations that timeliness is of such a
critical aspect, where we're fudging around whether doctors can
do this or doctors can do that, because--let's not make this a
legalistic argument, is my issue.
Mr. Sabin. We recognize the desire to inspire the American
opportunity to provide assistance where people are in need of
assistance. The United States Government--and I don't want to
get into foreign policy considerations but--has the ability to
interact with the Sri Lankan government. But because a group
that has been determined to be a violent terrorist group has de
facto control, they can go to the Sri Lankan government and
work----
Mr. Delahunt. I understand they can go to the Sri Lankan
government. But we have NGOs, where we have people that are in
absolutely desperate straits. And because NGOs are deterred and
we know, I think--can you agree with me that there is a
chilling effect? I'm sure they have counsel, and counsel is
suggesting or recommending to them, ``Go slow on this issue.''
Meanwhile, we have people, you know, in such dire straits, and
there's such a tremendous loss of life that it doesn't, I
think, serve American national interests, and it certainly
doesn't, you know, serve the best interests of those people.
Mr. Sabin. And all I'm saying, in terms of my role as a
criminal prosecutor, is that there are mechanisms and
procedures that the United States Government has by which that
assistance can be provided. In terms of the chilling effect, I
don't want to speculate----
Mr. Delahunt. You don't want to chill. Right.
Mr. Sabin. I don't want to chill the ability for that kind
of assistance to get to the victims. But I do not want the
structure that is so vital, that is at the heart of what we
have used in our post-9/11 world to prevent these kinds of
activities by groups that are designated as violent terrorist
groups----
Mr. Delahunt. I understand that. But what I'm suggesting is
that we vest--that Congress revisit this issue and vest in the
President of the United States the ability to make that
decision given the crisis of the moment.
Mr. Sabin. You could have the Secretary of State de-
designate that organization from the foreign terrorist list.
Mr. Delahunt. I'm not going that far. What I'm saying is
I've got to deal--we have to deal, as the American people, with
the reality on the ground. And you don't have time to pick up
the phone, call your lawyer, and seek advice and guidance when
you have at risk tens of thousands, if not hundreds of
thousands, of people.
Mr. Sabin. And all I'm saying is that you can provide
mechanisms by providing that to the appropriate government, and
not the terrorist organization.
Mr. Arulanantham. Mr. Chairman, may I have an opportunity
to comment on this?
Mr. Coble. Since I had Mr. Katsas to wait for the second
round, will you just hold that thought. But the gentleman's
time has expired.
Mr. Delahunt. Thank you, Mr. Chairman.
Mr. Coble. The distinguished gentleman from Ohio is
recognized for 5 minutes, Mr .Chabot.
Mr. Chabot. Thank you, Mr. Chairman. Just one observation
before I get into the questions. You know, there have been a
lot of kind of wild allegations--not in this Committee; I'm not
referring to anybody here--but much of them kind of inflamed
over the Internet; you know, that Congress passed the PATRIOT
Act a few years ago, a knee-jerk reaction to 9/11, and
basically turned the Federal Government loose on the American
public to trample on civil liberties and abuse people left and
right. And you know, the facts, as have been coming out in this
Committee, I think point to something very different.
And I think one of the wisest things that Congress did in
passing that legislation was to sunset certain portions of the
PATRIOT Act, so that Congress would have to exercise oversight.
And this is the eighth hearing that we've had in this
Subcommittee alone relative to that oversight. And I want to
commend the Chairman for his diligence in utilizing this
Committee to participate in that oversight process.
I think this has been a very helpful process. And if in
fact portions of the PATRIOT Act--if it's determined they
should be modified or rejected and not--you know, that they not
remain law in this country, then so be it. But I just again
want to say that I thought that was very important that we did
require this oversight, and this whole process that we've been
going through is part of that.
Let me in my first question here refer to section 6603J,
and quote, ``No person may be prosecuted under this section in
connection with the term 'personnel,' 'training,' or 'expert
advice or assistance,' if the provision of that material
support or resources to a foreign terrorist organization was
approved by the Secretary of State with the concurrence of the
Attorney General.''
So let me ask the panel, and any of the members are welcome
to respond, if the humanitarian groups are concerned that they
might be prosecuted or they might be at some risk, can they not
go to the State Department and get permission to provide that
aid? Mr. Katsas?
Mr. Katsas. We think they can.
Mr. Chabot. They can?
Mr. Sabin. The answer is ``Yes.''
Mr. Chabot. Okay. Yes, sir?
Mr. Arulanantham. Yes, Representative, a couple of features
about this I think are important to note. The first is, it's
only personnel, training, or expert advice or assistance. So as
I said earlier, it doesn't cover a huge amount of the vital
services that I saw that were necessary there and that
humanitarian organizations I think would say are necessary.
Food is not there. You know, clothing isn't there; tents;
shelter. A whole set of vitally important services are not
covered by this provision. Water purification is not here.
The second thing I would say is that this process was in
place prior to the tsunami hitting. You know, this statute was
already the law, you know, at the time that this had happened.
And in fact, its constitutionality had already been considered
in a preliminary way in the Ninth Circuit. Obviously, it's not
necessarily going to be fast enough to deal with humanitarian
crises.
When I was on the ground about 48 hours after the tsunami
hit, doctors are having to make decisions about things to do
right then; people are dying right then. And a process whereby
the Secretary of State has to concur with the Attorney General
and make a political decision--you know, I think it was
President Reagan who said, ``A hungry child knows no
politics.'' And I continue to be somewhat disturbed by the idea
that this humanitarian activity would be subordinated to
political objectives; whether it be political objectives to
undermine the legitimacy of one of these groups, or the
political objectives of, you know, the Government in making
foreign policy decisions. I mean, there ought to be----
Mr. Chabot. Okay, let me stop you there, because my time is
about out. Would one of the other gentlemen on the panel like
to respond to any of the points made by the gentleman whose
name has been mispronounced only more often than my name, I
think?
Mr. Katsas. With respect to food, let's say, we think there
is a crucial distinction between what is permissible, which is
providing food to starving individuals, and what is not
permissible, which is providing something like food to, say,
the terrorist group directly. One can imagine something like an
al Qaeda training operation which would be aided were someone
to donate to it the food services necessary to run that
organization.
Mr. Chabot. Would one of the other gentlemen like to
respond? Mr. Sabin?
Mr. Sabin. On a variety of fronts. First, if the issue is
timeliness and, following up on Mr. Delahunt's point, to the
extent that there is a concern that somehow 2339B(J) won't be
efficient enough in a crisis or disaster mechanism, we can work
with the Congress to provide appropriate clarification. We're
open to that kind of dialogue.
But if I have heard correctly, in that specific instance,
there was not a type of food or other humanitarian assistance
that was prevented from being provided that has been documented
here today.
And let's not lose sight of the larger picture; that this
structure is what Congress desired so that groups like Hamas
would not have the ability to free up, through the humanitarian
assistance, and have individuals have that escape hatch so that
they could not be in violation of the law. And in case after
case, it has proved to be of tremendous assistance.
And we have used the article III courts, the Justice
Department has, including six trials in the last 90 days where
terrorist-related prosecutions resulted in convictions of all
defendants including----
Mr. Coble. Mr. Sabin, the gentleman's time has expired. If
you could, wrap it up.
Mr. Sabin. The bottom line is that I don't believe it's a
constitutional argument that I'm hearing today. It is one in
terms of the efficiency and timeliness. And we'll be able to
work with you in order to provide a mechanism and procedure by
which that can occur.
Mr. Coble. The gentleman's time has expired.
The distinguished lady from California, Ms. Waters, is
recognized.
Ms. Waters. Thank you very much, Mr. Chairman. Let me,
before I ask my question, thank you for all the work that
you've done on the PATRIOT Act. I've never seen these many
hearings, this in-depth kind of work done. And I think this is
so important, and I'm really appreciative for it.
Mr. Coble. If the lady would suspend?
Ms. Waters. Yes.
Mr. Coble. I thank you for that, but we've all pulled the
plow together. Bobby and I--Mr. Scott and I are not the only
ones to do it. But thank you, Ms. Waters.
Ms. Waters. Both of you. Both of you. Both of you have done
an excellent job.
Let me say to our panel today that we understand the need
to have a PATRIOT Act, and we understand very well that we have
embarked upon trying to secure the homeland. And it was
necessary for us to take a look at ways by which we deal with
terrorism. But at the same time, let me also say that those of
us who have fought for civil rights and civil liberties all of
our lives must also fight for balance and make sure that we are
in no way undermining the civil rights and civil liberties of
our citizens in this democracy.
I'd like to thank the ACLU for doing just an excellent job.
People don't know the kind of work that goes into trying to
protect the democracy. And I have a real appreciation for all
of the problems that you have in trying to do this work.
Having said that, I am pleased that we have written into
law that we should have this report on this section--I guess,
101--on whether there have been any civil rights violations;
but I don't want to concentrate on that right now.
What I want to talk about is equal application of the law,
and I want to try and understand how these decisions are made.
I know that the PATRIOT Act came into being after 9/11, but I'm
still bothered by the fact that following the attack somebody
in government rounded up the royal family and others. We don't
even know who all they rounded up and put on airplanes and
shipped out of here, and let them get back to Saudi Arabia. And
we do know that some members of the royal family are from the
Osama Bin Laden-thinking side; that they don't all think alike.
And we know that some members of the royal family have been
supportive of terrorist organizations. We believe that. We even
know about an ambassador's wife, I think it was, that gave
money to an organization that was identified as a terrorist
organization.
I want to know, have they ever been investigated? Who are
those people that we let out of here? Were they tied to
terrorist organizations? Were they supplying funds to terrorist
organizations? Let me start with Mr. Sabin. Do you know
anything about that?
Mr. Sabin. If I recall, when I testified before a different
Committee that you were on back in September, you had raised a
related question in that regard.
Ms. Waters. Refresh me.
Mr. Sabin. And the specifics of that are beyond the scope
of this particular hearing today. But to the extent that you're
asking whether there is an ongoing investigation in that
matter, I am not at liberty to say now, but I can check with
the FBI and we, through our appropriate channels in the Justice
Department, will get back to you with an answer one way or
another.
Ms. Waters. I doubt if I'll get an answer, but that's okay.
I just--it's just on my mind, and it won't leave until I
understand what took place. Are you familiar with the madrasas
in Saudi Arabia?
Mr. Sabin. In a general proposition.
Ms. Waters. Do you know what they do?
Mr. Sabin. In terms of providing teachings----
Ms. Waters. Yes.
Mr. Sabin.--to inspire or recruit or develop a particular
kind of teaching? Yes, generally.
Ms. Waters. Let me just ask this. Are there groups or
organizations in the United States that are supplying funds or
resources to the madrasas in Saudi Arabia?
Mr. Sabin. To the extent that you are suggesting that there
is a violation of a United States law, either 2339A or B, in
relationship to that, if you have specific facts, we would
welcome the opportunity to review----
Ms. Waters. No, I want to know, do you know about any?
Mr. Sabin. There are matters under investigation at the
FBI. I am not going to comment on the specifics of a madrasa,
or Saudi Arabia in particular. We welcome all specific facts,
whether it's from Congress or the public. If there is a
predication for a violation of United States law, we will
review it.
Ms. Waters. Well, I'm talking about equal application of
the law. And I raise this question because I don't want to sit
here and talk about getting tough on terrorism and, because we
are friends with Saudi Arabia--whether it is because of the oil
connection, or the President just knows them so well and loves
them and kisses and hugs them when they come over; I don't know
what it is--but I don't want to talk about how we are fighting
terrorism and how we are targeting groups, when in fact we have
right before our very eyes--and, I think, knowingly--that we
have support for madrasas and other organizations in Saudi
Arabia.
And I would kindly ask my Chairman for just 30 more
seconds.
Mr. Sabin. And I can answer----
Mr. Coble. Without objection.
Ms. Waters. I think I get your drift. Is the Taliban a
terrorist organization?
Mr. Sabin. It is not designated as a foreign terrorist
organization. It is listed under the International Emergency
Economic Powers Act as a specially designated global terrorist,
I believe is the proper term.
Ms. Waters. Please just tell us, is the Taliban----
Mr. Sabin. It is not a foreign terrorist organization that
would prove a predicate for a 2339B violation. But yes, it is
listed so that you could have a violation of the IEEPA statutes
under title----
Ms. Waters. Do you have conservative religious
organizations in the United States who supply resources to the
Taliban?
Mr. Sabin. I don't know what you're specifically referring
to.
Ms. Waters. Well, I'm talking about Pat Robertson and some
of the organizations that were involved with support of the
Taliban before 9/11. And I'm told that still there may be some
connections to them. Do you know anything about this at all?
Mr. Sabin. I don't know what you're referring to.
Ms. Waters. Well----
Mr. Sabin. I would welcome the specific facts. But in terms
of your larger question, as a considered prosecutor----
Ms. Waters. Do you know of any conservative organizations
in the United States, religious organizations, that are
supportive of the Taliban, either before 9/11 or after 9/11?
Mr. Sabin. Again, I am not going to comment in a public
forum about a particular investigation. If there are specific
facts that you believe suggest a violation----
Ms. Waters. Well, let me just say--let me just say this----
Mr. Sabin.--of a United States law, we equally apply them.
Ms. Waters. The point that is made--Mr. Chairman, this is
the point. This is the point. You may not be able to comment.
You will probably never comment. But my point is this: What's
good for the goose is good for the gander. And if we're
fighting terrorism, we don't have any, and shouldn't have any,
special friends who we let off the hook because somehow they
are doing something that we consider is all right.
And until you can clear up these kinds of questions in my
mind, then I'm going to do everything that I can not to allow
this country to have a PATRIOT Act or anything else that
selectively identifies and prosecutes any organization.
You have got to come down with the truth at some point. And
you may not be able to do it today, and I probably will never,
ever know; but I'll keep asking these questions over and over
and over again.
Thank you, Mr. Chairman.
Mr. Coble. Will the--Mr. Sabin, very briefly.
Mr. Sabin. And we appreciate that oversight of Congress,
and the Inspector General, and the press, and the ACLU. We are
better for that dialogue. And I would clearly and unequivocally
say that the prosecutors around the country in the Justice
Department and the investigators on the joint terrorism
taskforces look at the facts, apply it to the law, and seek
justice.
And we do so not because of special favorites, or any kind
of other objectives; but in order to fulfill our
responsibilities under the Constitution even-handedly, to bring
cases where appropriate, and also not to bring cases when it's
inappropriate.
Mr. Coble. Well, the gentlelady's time has expired.
Ms. Waters. Thank you very much, Mr. Chairman.
Mr. Coble. You betcha. We'll try a second round now. Mr.
Katsas, I cut you off, or the red light cut you off, in the
first round. I'll be glad for you to respond.
Mr. Katsas. Mr. Chairman, you----
Mr. Coble. I think it was in response to something Mr.
Sabin had said.
Mr. Katsas. You had a colloquy with Mr. Sabin on the very
sound reasons for not imposing a specific intent requirement,
the intent of the donor. So that writing a check to al Qaeda is
illegal, and we don't get into issues of whether that is
intended for terrorist operations or humanitarian operations.
The only point that I wanted to add was with respect to the
constitutional question, whether you have to have a specific
intent requirement. We have litigated that issue in four United
States Courts of Appeals. Every one of them has held this kind
of scheme to be permissible: the Ninth Circuit; the D.C.
Circuit; the Seventh Circuit; and the Fourth Circuit, which was
sitting en banc, at least eleven-to-one, on this point. So we
think the authority for Congress proceeding as it has is now
very well established.
Mr. Coble. I thank you, sir. Mr. Fine, you indicated in
your written testimony that section 1001 of the PATRIOT Act
explicitly requires the Inspector General of the Department of
Justice to designate an official who shall submit to this
Committee, and also the Committee on the Judiciary of the other
body, the Senate, on a semi-annual basis. As to responses to
this section, how would changing the requirement for submitting
such a report from a semi-annual basis to an annual basis
affect the ability of the IG's office to successfully implement
its oversight responsibilities?
Mr. Fine. I don't believe it would affect our ability to do
that. We provide the reports that Congress asks for, and we try
and do a thorough and expeditious job in it. If it was moved to
an annual basis, we could do that as well, and we could also
provide briefings to the Committee, to the extent they needed
it, as well.
Mr. Coble. But is it not being considered to transfer to an
annual?
Mr. Fine. I have heard of no--this is the first I've heard
of that.
Mr. Coble. Okay, I'm----
Mr. Fine. But I wouldn't be opposed to it.
Mr. Coble. All right. Very well.
Mr. Arulanantham. Mr. Chairman, can I comment very briefly
on that?
Mr. Coble. Yes, sir.
Mr. Arulanantham. Just to clarify that. Mr. Fine is relying
on reports that other people send to him. So for example, in
situations where there's a gag order, as in the National
Security Letter context, and, you know, people are prevented
from disclosing what may be abuses under the act, then
obviously that's going to limit his investigation.
Mr. Coble. Mr. Fine, do you want to respond to that?
Mr. Fine. We widely publicize who we are, what our duties
are. We do rely upon complaints coming in. We've received 7,000
of them. To the extent that people do not know of anything
happening to them, there is an issue about whether they can
complain; so I think that's a legitimate question. But I will
say we have very widely publicized what we do, and we received
a very significant number of complaints.
Mr. Coble. I thank you, sir.
The distinguished gentleman from Virginia.
Mr. Scott. Thank you. Mr. Fine, you indicated that you are
investigating the Mayfield situation?
Mr. Fine. Yes.
Mr. Scott. You won't be offended if some of us are really
skeptical about how he could have been misidentified by
fingerprints? Of all the people in the world to get
inadvertently misidentified, it happened to be a Muslim lawyer
suing the United States. That's--that's unusual; don't you
think?
Mr. Fine. I think it is unusual, and I think healthy--
skepticism is a healthy thing. And that's what we try and bring
to bear on our investigations. And we're going to investigate
this very thoroughly.
Mr. Scott. So you have to do a little bit more
investigation than average to convince a lot of people that
there wasn't something going on other than just a random
misidentification of fingerprints.
Now, on your civil rights investigations, you've kind of
alluded to this a little bit. One of the problems, if you're
just waiting for complaints, is that, one, you've got the gag
orders to deal with. You've got another problem. A lot of these
things are secret. You didn't know you were--there was a sneak-
and-peek investigation or search of your house. Are you being
pro-active in your investigation, or are you just waiting for
the complaints?
Mr. Fine. We're not simply waiting for complaints. We look
to see where there's serious problems. In fact, in our
investigation of the treatment of detainees after September
11th, we received a few complaints and we were very pro-active
in going forth with a systemic review of what was happening to
those detainees.
With regard to the delayed notification, or the so-called
``sneak-and-peek,'' eventually people do get notified of the
search. And if they had complaints, I would presume they'd know
where to come, or should come to us with it.
Mr. Scott. Did you look into the fact that Muslims were
rounded up in the Detroit area, as a civil rights violation?
Mr. Fine. We have not investigated that matter, no.
Mr. Scott. What about, did you take a position on the idea
of enemy combatants, where people could get arrested in the
United States and held without charges?
Mr. Fine. That's a matter that's before the courts, and we
have not opened an independent review of the enemy combatant
situation.
Mr. Scott. What about the status of military tribunals?
Mr. Fine. The status of military tribunals?
Mr. Scott. Yes. I mean, there was a lot of civil rights
implications on whether or not people would get a fair trial
under that situation. I mean, the first announcement said that,
you know, you're not entitled to guilt beyond a reasonable
doubt, you're not entitled to a presumption of innocence. Mr.
Katsas, do you want to----
Mr. Katsas. Mr. Scott, if I may, that issue is the subject
of litigation which is currently pending in the Court of
Appeals for the D.C. Circuit.
Mr. Scott. And therefore, you can't look at it as a civil
rights violation?
Mr. Katsas. Not to comment----
Mr. Scott. I mean, even if it's legal, it seems to me that
there's some problems with hauling people off the street and
locking them up. And I asked Attorney General Ashcroft, ``If
you happened to round up the wrong person, and they're
innocent, when do they get out?'' And the answer was, ``The end
of the conflict.'' At the end of the war on terrorism, they can
get out. No hearing, no habeas corpus, no nothing. Isn't that
something that we need to look at, whether it's legal or not,
as a civil rights violation?
Mr. Fine. I think that is a very serious issue that should
be looked at by Congress, by others, by the courts. I'm not
sure how we would investigate it.
Mr. Scott. Well, Congress hadn't authorized this, pick
people off the street. How do we look into it?
Mr. Fine. I think Congress, in its oversight role, could
look into it. And there's many facets of oversight.
Mr. Scott. Well, suppose Congress passed that you can pick
somebody off the street and lock them up. I mean, so what? I
mean, it's still illegal; isn't it?
Mr. Fine. Presumably. I would hope that if there was an
illegal action by Congress that the courts would review it.
Mr. Scott. Well, I mean, if we passed a law that you could
pick somebody off the street who'd been designated by the
Executive Branch as an enemy combatant and held without
charges, if we passed a law to authorize that, don't you think
the courts ought to throw it out, or somebody in the civil
rights division ought to find a little civil rights problem?
Mr. Fine. Absolutely.
Mr. Scott. Okay. I don't know who this--maybe Mr. Katsas or
Mr. Sabin. Is there anything comparable in domestic law that
has this aid to terrorist organizations? We have a lot of
little terrorist organizations around. Some of the groups have
websites listing abortion physicians that end up getting shot.
Do you have any--is there any domestic equivalent to this?
You've got militias running around in the woods, teaching
people how to use firearms.
Mr. Sabin. There is not a comparable provision. There is
title 18, United States Code, Section 842(P), which provides
for the teaching of bomb-making type of activities; which
arguably could have first amendment concerns that civil
libertarians would seek to address. But in terms of a listing
approach, no. The answer is, no.
Mr. Scott. But I mean, if we had caught the Oklahoma
bombing group before--and I understand you're trying to open an
investigation to determine whether we got everybody or not--if
we had gotten a group before, and they'd just been training,
with nothing specific, without getting into any specifics, just
training for this kind of thing, and you concluded that they
were a terrorist organization, would we have any domestic law
to deal with that?
Mr. Sabin. We can work with the Congress in terms of
specifics. But there is, for example, under eco-terrorism,
section 43 of title 18 of the United States Code, which has--
addresses that. There's the explosive statutes under section
844, that you could have certain kinds of conspiracies. And
that's how we reached, for example, the Oklahoma City bombers,
in use of weapons of mass destruction and the like.
Mr. Scott. Yes, but in all of those, you have to have--
actually be involved in the crime. It's just not giving feeding
and other expertise, medical advice, to the group, with nothing
to do with the crime. Your activities have to be crime-related.
There's apparently no comparison to where you're giving that
kind of advice to a group, and then all of a sudden, because
they're a terrorist organization, you're roped into a Federal
crime.
Mr. Sabin. I think we have to look carefully at the
language of section 43 relating to eco-terrorism; but I think
that is generally a correct proposition, sir. There is attempt
and conspiracy statutes that could encompass certain kinds of
criminal activity.
Mr. Arulanantham. Just briefly----
Mr. Sabin. Also, a concept under the guidelines for
terrorism enterprise investigations where there are a number of
organizations that are under review and scrutiny, such as some
of the militia groups that you've referred, that the FBI has
under investigative scrutiny.
So there's an investigative mechanism in that regard, but
not a statute, if I understand your question correctly.
Mr. Arulanantham. Representative Scott, just briefly, if I
may, I think the question is a good one, and it goes to the
constitutional point. I'm making here primarily a humanitarian
argument because of the horrible things that I saw, but I think
the analogy is very, very important to understand.
A lawyer who wanted to advise Operation Rescue about how
they can comply with, you know, the laws governing clinic
protection, for example, and still legitimately protect--or
protest abortion provision going on in this country, is clearly
expert advice. It just clearly is. And it involves specialized
knowledge.
It's very hard to understand--in fact, in the Humanitarian
Law Project case, where the Government has won an--has defeated
an injunction, most recently in the Ninth Circuit, one of the
prospective defendants wants to give human rights training to a
group so they can comply with, you know, international
humanitarian law. And the Government argues that, you know,
that can be proscribed under the statute.
So I think there's no even remote analogue in the domestic
context, because in all vicarious liability contexts, whether
it be conspiracy law, or aiding and abetting, or RICO, or any
of these contexts, you require something. It's not a specific
intent; it's just that the person have some interest in the
actual criminal activity going on.
And in this other context, we don't--you know, the way the
law is currently written, it doesn't require the doctor to
actually want to further the LTTE's military purposes. Quite on
the contrary. The doctor might just want to help starving
people or people in need of medical assistance; but the law
still bans it.
Mr. Coble. The gentleman's time has expired.
Mr. Katsas, you looked like you wanted to jump in. Did you
not? Okay, I misread you.
The gentleman from Texas is recognized for 5 minutes.
Mr. Gohmert. I thank you, Mr. Chairman. Mr. Sabin, let me
follow up on a matter of previous questioning, and ask you, is
there any group that is operating, or allegedly operating, out
of Saudi Arabia, that has been designated as a terrorist
organization?
Mr. Sabin. Specific foreign terrorist organization? I mean,
there are groups--there are individuals of groups in that
country that--al Qaeda representatives, and the like. Off the
top of my head, of the 40 groups that have been designated, I
think the answer is, no. But I can check, and get back to you
on that.
Mr. Gohmert. Do they get--if there are individuals in Saudi
Arabia, are they getting any special treatment because of the
relationship of the U.S. and Saudi Arabia?
Mr. Sabin. No. No. Specifically, I can refer you to the
case that is pending in the Eastern District of Virginia,
involving Abu Ali, where he was in Saudi Arabia, a U.S.
citizen, allegedly involved in providing assistance to al
Qaeda.
Mr. Gohmert. Just a comment, lest others are tempted to
discuss whom a President hugs and kisses. I don't think we want
to go down that road in comparing this President to past
Presidents and who they hug and kiss, nationally or
internationally. But anyway, I'm still concerned--we talk about
concerns--about the Justice Department of the prior
Administration still not prosecuting anybody for having a
thousand FBI files or so, when Chuck Colson went to prison over
one in that kind of abuse.
But this is such a difficult issue. And I'd like to thank
the Chairman again for having the hearings. You know, on the
one hand, the concern expressed has quoted from Senator
Feinstein about masking humanitarian aid with terrorism. I
mean, we've seen some of that in the oil-for-food scandal. And
now we've got the U.N. trying to cover its tracks. It is a
difficult issue.
And on the other hand, then we have the benefit of looking
backwards and seeing how unfairly Dr. Mudd was treated when he
was presented with, you know, John Wilkes Booth, who he had no
idea had just killed our great President.
So we want to prescribe fairness. We want to make sure that
there is fairness and justice. And we appreciate you all's
efforts in testifying. You provided a great deal of information
in your written testimony.
I would like to ask Mr. Fine, though, having read the quote
from a New York Times article I'm sure you're quite familiar
with, by the author Mr. Shiman, he says that, ``Mr. Fine, whose
job is to act as the Department's internal watchdog, found that
hundreds of illegal immigrants had been mistreated after they
were detained following attacks.'' Can you explain the
discrepancy? It sounds to me there's a discrepancy in what he
says and what you say.
Mr. Fine. The quote that you just read I think is accurate.
We did find in our report dealing with the treatment of aliens
held after the September 11th attacks that there was abuses;
that they were mistreated; that they were held in unduly harsh
conditions; that they were not given their notice of charges;
that they were not allowed access to counsel in a timely way;
that some of their conversations with their attorneys, when
they got them, were taped. We found a series of problems and
abuses of them. That was not of the PATRIOT Act, though. I
think that's where the issue is.
Mr. Gohmert. That's the distinction.
Mr. Fine. That's the distinction. But there were serious
problems that we found in the way the FBI and the Department
treated those detainees. And we pointed them out and as
Congressman Delahunt pointed out again. And we recommended
discipline be taken. And we're still waiting.
Mr. Gohmert. All right. Thank you. I would encourage you to
follow up on any allegations or potential information about
interrogation being staged for the benefit of Congress;
because, you know, how can Congress function adequately, if
we're not given, you know, real information from which to act?
So we appreciate all of your testimony. And I haven't asked
you any questions at this point, but I'll try to follow up on
some of the things I heard as concerns. So, thank you.
Mr. Coble. I thank the gentleman from Texas.
The distinguished gentleman from Massachusetts is
recognized for 5 minutes.
Mr. Delahunt. I thank the Chair. Who's the senior member of
the Department here? Is that you--Mr. Katsas.
Mr. Katsas. We're from different areas in the Department.
Mr. Delahunt. I understand. Different areas. What I would
like to do is have--I guess I would make the request of you,
Mr. Katsas, to inquire of--you can go up the chain and then
down the chain, if necessary--to inquire on behalf of myself in
a request for a written response as to why the delay from the
Bureau of Prisons, in terms of considering the recommendation
made by the Department of the Inspector General.
Mr. Katsas. With respect, that's far outside the purview of
the civil division. I imagine we have processes for
transmitting that----
Mr. Delahunt. I see some gentlemen in the back that are
making notes. I see Mr. Moschella leaning over. Since he is the
congressional liaison, I would--through you to Mr. Moschella,
please follow up on that request, so that we can, you know,
understand the rationale.
Mr. Katsas. And I've just been told we will do so.
Mr. Delahunt. Thank you. I want to be clear to Mr. Sabin,
you know, I'm not speaking about the constitutionality of the
particular provision that we're here reviewing, as far as the
PATRIOT Act is concerned. I'll leave that to the courts. There
are plenty of decisions. Presumably, at some point in time, the
Supreme Court might take jurisdiction. I don't know. And I want
to be clear that I understand your concerns, and I respect your
concerns.
But I do think, again, to go back to what I was talking
about, that some sort of humanitarian waiver on the part of the
appropriate secretary, or the President himself, that would
implicate the necessary conditions for accountability would, I
think, address the concerns that we've heard here today. And I
just think that is common sense.
Now, we can get into what section and subsection, and
whether it's ``P'' or ``B.'' But I think we, as Americans,
want--I know we all want to do the right thing. And there are
occasions when that--let's call it waiver authority--could be
implicated.
Mr. Sabin. Fair point. We'll work with you and we'll work
with the Congress, in order to see if we can reach a meeting of
the minds in that regard that can preserve what we're trying to
preserve in terms of our enforcement abilities, but also
address the concerns that you articulate. To follow up, though,
on a----
Mr. Delahunt. I'm going to interrupt you----
Mr. Sabin. Okay.
Mr. Delahunt.--because I'll run out of time.
Mr. Sabin. Okay.
Mr. Delahunt. But I want to follow up on, I think, what the
concerns were expressed by my friend from California,
Congresswoman Waters, in terms of, how do you get on these
various lists? I sent a letter recently to the Attorney
General, Mr. Gonzales. I guess this would be under the IEEPA.
Am I pronouncing the acronym correctly?
Mr. Sabin. Yes.
Mr. Delahunt. That was----
Mr. Sabin. When I came to Washington, I learned there's a
lot of acronyms you have to learn.
Mr. Delahunt. Right. I'm starting to. I've only been here a
short time.
Mr. Sabin. Miss your days as a prosecutor, sir.
Mr. Delahunt. Right, I do. There are two individuals, and
I'd like to have some sort of a written response. If you can do
it, you are our counterterrorism expert. I've spent
considerable time in Latin America and in the Caribbean. I've
asked Attorney General after Attorney General, what is the
status of an individual that I believe to still be in the
United States, by the name of ``Emanuel Todo Constant,'' who is
the leader of the FRAP, a foreign terrorist organization if
there ever should be one. Is he on--if you know, is he on the--
you know, the terrorist--the identified terrorist list?
Mr. Sabin. I'll look into it and get back to you, sir.
Mr. Delahunt. You don't know whether he's on----
Mr. Sabin. Not as I sit here today, I do not know.
Mr. Delahunt. You don't. And then, there's an individual
who recently, yesterday, was on the front page of the New York
Times, who allegedly was responsible in the late 1970's for the
killing of some 73 innocent civilians aboard a Cuban airline,
by the name of ``Luis Posada Carriles''; who purportedly,
according to his lawyer and others in Florida, is currently in
the United States. Is he on the--is he an identified terrorist
on the list?
Mr. Sabin. I'm familiar with that individual. And I do not
know, as I sit here, whether he is on the list, but the Justice
Department is familiar with that individual; as well as other
Government components, including the Department of Homeland
Security.
Mr. Delahunt. I take it, this is not a secret list; is it?
Mr. Sabin. No, it's not. What I'm saying is, I can go back;
we can check; and we can provide you that, transparently.
That's the purpose of the list, is to have these individuals.
Mr. Delahunt. Right.
Mr. Sabin. So I am familiar with the individual; I just
don't know whether that individual is on a list.
Mr. Delahunt. If you could, let me know. Because I guess,
once I find out, I'm going to--you've solicited our assistance
and input. And once I find out, if he's not on the list, I
intend to try to develop some information so that both of these
individuals will be placed on the terrorist list.
Mr. Sabin. We appreciate your interest, and we'll work with
you to make sure that the matter is addressed.
Mr. Delahunt. Thank you.
Mr. Coble. The gentleman's time is expired.
The Chair recognizes the distinguished lady from
California, Ms. Waters, for 5 minutes.
Ms. Waters. I don't believe that Todo Constant is on any
list, but I can tell you where he is up in New Jersey. If you
call my office, I will give you his address. And probably,
because he worked for the CIA, he will not make the list; as
Mr. Posada will not.
Now, let me get back to the Taliban. And I'm going to go to
Mr. Katsas now. Is the Taliban listed as a terrorist
organization? And what's the distinction that Mr. Sabin was
trying to make between being on--listed as a terrorist
organization in some other way? Would you help me with that?
Mr. Katsas. I don't know if it's listed or not. I can tell
you the distinction Mr. Sabin was trying to make----
Ms. Waters. Okay.
Mr. Katsas.--is that there are different--there are
different statutes which target terrorist organizations. The
principle one that we're discussing here is the foreign
terrorist organization provisions, primarily in section 2339B.
There is a separate statutory scheme, called IEEPA, which has a
different kind of designation.
I can't tell you who is designated under which provisions.
My job is to defend the constitutionality of each statute as it
is challenged, and we have done that fairly well.
Ms. Waters. Well, let me just say, listed under
``Indictments'' I see that, on page 5 of your testimony, that,
``Ahmad, a resident of the United Kingdom, alleged operated and
directed Azzam Publications and its family of Internet
websites, located in the United States and around the world, to
recruit and assist the Chechen mujahideen and the Taliban and
to raise funds for violent jihad overseas.''
So the Taliban is considered a terrorist organization under
this indictment?
Mr. Sabin. No, the Taliban is considered a terrorist
organization under the IEEPA statutes; not under the foreign
terrorist organizations definition under 2339B of title 18.
Ms. Waters. What's the difference?
Mr. Sabin. Under 2339B, you have to be foreign, you have to
be terrorist, and you have to be an organization. So you could
not have a domestic entity in the--in the FTO, 2339B scheme. It
has to be a terrorist; namely, involved in activities that harm
United States' interests, threats to the United States national
security. And an organization is the--as opposed to an
individual; an actual group or collection of individuals
seeking to accomplish terrorist goals.
Ms. Waters. Why is it the Taliban does not fit the
definition?
Mr. Sabin. Under an FTO?
Ms. Waters. Yes.
Mr. Sabin. Actually, we had charged in certain
indictments--and I would refer you to the Khan case out of the
Eastern District of Virginia, where we had alleged certain
activities, under FTO designation for 2339B regarding
individuals, were both in violation of al Qaeda and the
Taliban. And the court ruled that it is not the same and it is
not designated.
To the extent that your recommendation is that the Taliban
should be designated as a foreign terrorist organization, we'll
go back and scrutinize that. Previously, it had been an actual
government, and so it could be listed as one of the seven state
sponsors of terrorism; an actual state, as opposed to an
organization. If I understand the thrust of your question--and
I think it's a fair one--should the Taliban be designated as an
FTO so that it can be under the--not only under the IEEPA
statutes, but under the material support statutes.
Ms. Waters. Well, you know, I appreciate your willingness
to go back and take a look at this. But I would hope that this
isn't the first time you heard this. And I would hope that you
know way more about it than I do; and that you should be on top
of it. And that just coming here--well, we only have 5 minutes
to talk with you--all of a sudden raises a concern that you
never had.
Mr. Sabin. No, I don't mean to suggest that.
Ms. Waters. Yes?
Mr. Sabin. What I'm saying is that, in regards to bringing
cases against individuals that are involved with the Taliban,
we have brought those cases, as you refer to Mr. Ahmad. He is
now in custody in the United Kingdom, awaiting extradition
determination to the United States for those----
Ms. Waters. Was the Taliban involved in killing any of our
soldiers in Afghanistan?
Mr. Sabin. Yes.
Ms. Waters. Were they involved with killing people in the
public square, and assisting any organizations involved, as you
said here, with jihad overseas?
Mr. Sabin. Yes.
Ms. Waters. I don't understand why, then, they are not
considered a terrorist organization under the statute we're
dealing with.
Mr. Sabin. And my point is that we have not been precluded
from bringing prosecutions against individuals under the
statute.
Ms. Waters. I'm talking about individuals and the
organization. And I'm really trying to get to the fact that
there are conservative religious organizations attached to the
Taliban right here in the United States. Do you not know about
that?
Mr. Sabin. And to the extent you have a specific
individual----
Ms. Waters. No, no, no, no.
Mr. Sabin.--or groups that you're referring to----
Ms. Waters. No, my question----
Mr. Sabin.--I'd welcome that information.
Ms. Waters. My question is, do either you or Mr. Katsas
know anything about religious organizations connected to the
Taliban here in the United States, who may be providing
material support, now or in the past?
Mr. Katsas. I don't. But I would like to just elaborate for
a minute on the different ways we try to protect the country
from terrorist-like entities. I said there were two principle
ones: this scheme, and the IEEPA scheme. Those are typically
schemes enforced against non-government terrorist entities.
There is a third scheme involving provisions in the Foreign
Sovereign Immunities Act, which imposes certain different
liabilities on governments, foreign governments that support
terrorism. So that's a third way in which we go after
governments.
And finally, with respect to the Taliban itself, you are
absolutely correct that there was obviously an armed conflict.
And we have taken various measures, including the enemy
combatant designations, to hold members of the Taliban who have
been fighting against our troops and are dangerous. And we are
actively defending the constitutionality of that program, as
well.
So there are a whole range of ways in which we try to
protect Americans from terrorist private organizations, and
terrorist governments.
Ms. Waters. Mr. Chairman, if I may, 30 seconds.
You recognize that the Taliban is not a legitimately
organized government entity; do you not?
Mr. Katsas. I'm not sure--I'm reluctant to speak on the
foreign policy--the precise status of the Taliban. I might--I
think that's right.
Ms. Waters. Do you know how Afghanistan is organized? Do
you know what Mr. Karzai's role is there, and what he's
supposed to be doing?
Mr. Katsas. He is current--the head of--currently the head
of state.
Ms. Waters. That's right. That's right. The Taliban----
Mr. Katsas. The Taliban is no longer the ruling government.
Ms. Waters. Absolutely. It is not a government
organization. But it's still in existence; is it not? Is it not
the organization that's up on the border between Afghanistan
and Pakistan, still giving us a lot of trouble?
Mr. Katsas. I assume so. You're well beyond my expertise.
Mr. Coble. Well, the gentlelady's time has expired.
Ms. Waters. Thank you.
Mr. Coble. As the gentlelady from California pointed out at
the outset, folks, we have covered a lot of ground, we Members
of this Subcommittee. And we've gleaned valuable information,
in my opinion; thanks in no small part to the outstanding
witnesses--and today being no exception to that--who have
contributed very ably and very significantly to this problem.
As we--I'm going to make this clear later, but the record
will remain open for 7 days. But as we go about trying to
resolve some of these problems, I don't want any of us to
become oblivious to the fact as to why we had a PATRIOT Act to
begin with. I mean, we were attacked on 9/11. And I'm afraid
that many Americans have maybe--you know, we Americans have
short memory spans, and we forget. But I don't want us to
forget that, because that's very significant.
I appreciate the witnesses for your testimony. The
Subcommittee appreciates your contribution. In order to ensure
a full record and adequate consideration of this important
issue, the record will remain open for additional submissions
for 7 days. Also, any written question that a Member wants to
submit should be submitted within that same 7-day time frame.
The gentleman from Massachusetts?
Mr. Delahunt. Yes, if the Chair would indulge me for a
moment?
Mr. Coble. Yes, sir. The gentleman from Massachusetts.
Mr. Delahunt. I don't know if the Chair could inform us,
but can we anticipate further hearings?
Mr. Coble. If I may be brutally frank, I hope not, but----
Mr. Delahunt. Okay. [Laughter.]
Mr. Coble. But I'll say to the gentleman from
Massachusetts, I don't know that with certainty. This is our
eighth one, as you know. And I think there may be two others
that may involve the full House Judiciary Committee. That's a
fair question, Mr. Delahunt, but I don't have an answer right
now.
Mr. Delahunt. Okay. Mr. Chairman, if you know, or at least
I would hope that, if there will be additional Subcommittee
hearings--or if you could convey this to the appropriate
personnel on the full Committee staff--I would suggest that, in
terms of the timing, you know, a Tuesday at 2, as opposed to a
Tuesday at 10, time would probably be more conducive to
Members, in terms of attendance.
Mr. Coble. Very well.
Mr. Scott. Mr. Chairman?
Mr. Coble. Yes, sir.
Mr. Scott. And I would hope that we would, if and when
legislation is actually drafted, we could have hearings on that
legislation. I think it would be extremely helpful.
Mr. Coble. And by the way, I don't want anyone to think
that I am being too casual when I said I hope not. My point is
that we have other matters that fall under the jurisdiction of
this Subcommittee, other than the PATRIOT Act. And that's what
I meant, that that will afford us additional time to direct
attention to those other features.
This concludes the oversight hearing on the
``Implementation of the USA PATRIOT Act: Prohibition of
Material Support Under Sections 805 of the USA PATRIOT Act and
6603 of the Intelligence Reform and Terrorism Prevention Act of
2004.''
Thank you for your cooperation, and the Subcommittee stands
adjourned.
[Whereupon, at 11:55 a.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Robert C. Scott, a Representative
in Congress from the State of Virginia, and Ranking Member,
Subcommittee on Crime, Terrorism, and Homeland Security
Thank you, Mr. Chairman. I appreciate your holding this hearing on
the issues surrounding the material support provision of the USA
PATRIOT Act. This provision has proved troublesome in its application.
It has proved to be particularly troublesome in the context of
humanitarian and disaster relief efforts where aid workers are severely
hampered by bizarre implications of a provisions that attempts to make
an exception for medical and humanitarian relief, but not for food and
water, or medical supplies to provide for the medical procedures to
provide the relief.
Various aspects of the provision have been found unconstitutional
by several courts. We have not had a definitive ruling on it from the
U.S. Supreme Court, so the issues are still being litigated.
We made some fixes to the provision in the 9/11 bill we passed last
year, but there still appear to be problems. Moreover, that fix is
sunsetted to expire in 2006, so it is timely that we are revisiting it
at this time.
So, Mr. Chairman. I look forward to the testimony of our witnesses
on what problems have arisen with the provision and what it takes to
fix it, assuming it can be fixed. And I look forward to working with
you to implement their recommendations. Thank you.