```

[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
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                       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.

                                 
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