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21–818 PDF 2005

S. HRG. 109–49

A REVIEW OF THE MATERIAL SUPPORT TO

TERRORISM PROHIBITION IMPROVEMENTS ACT

HEARING

BEFORE THE

SUBCOMMITTEE ON TERRORISM, TECHNOLOGY 

AND HOMELAND SECURITY

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

APRIL 20, 2005

Serial No. J–109–14

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

DAVID BROG, Staff Director 

MICHAEL O’NEILL, Chief Counsel 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

SUBCOMMITTEE ON TERRORISM, TECHNOLOGY AND HOMELAND SECURITY

JON KYL, Arizona, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JOHN CORNYN, Texas 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

DIANNE FEINSTEIN, California 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

RUSSELL D. FEINGOLD, Wisconsin 

RICHARD J. DURBIN, Illinois 

STEPHEN HIGGINS, Majority Chief Counsel 

STEVEN CASH, Democratic Chief Counsel 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Cornyn, Hon. John, a U.S. Senator from the State of Texas, prepared statement ...................................................................................................................... 28

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 16

prepared statement .......................................................................................... 30

Kyl, Hon. Jon, a U.S. Senator from the State of Arizona .................................... 1

WITNESSES 

McCarthy, Andrew C., Senior Fellow, Foundation for the Defense of Democracies, Washington, D.C. ..................................................................................... 6

Meron, Daniel, Principal Deputy Assistant Attorney General, Civil Division, 

Department of Justice, Washington, D.C. .......................................................... 5

Sabin, Barry, Chief, Counterterrorism Section, Criminal Division, Department 

of Justice, Washington, D.C. ............................................................................... 2

SUBMISSIONS FOR THE RECORD 

Cole, David, Professor, Georgetown University Law Center, Washington, D.C., 

prepared statement .............................................................................................. 19

McCarthy, Andrew C., Senior Fellow, Foundation for the Defense of Democracies, Washington, D.C., prepared statement .................................................. 31

Sabin, Barry, Chief, Counterterrorism Section, Criminal Division, Department 

of Justice, Washington, D.C. and Meron, Daniel, Principal Deputy Assistant 

Attorney General, Civil Division, Department of Justice, Washington, D.C., 

joint prepared statement ..................................................................................... 45

(1)

A REVIEW OF THE MATERIAL SUPPORT TO 

TERRORISM PROHIBITION IMPROVEMENTS 

ACT 

WEDNESDAY, APRIL 20, 2005

UNITED STATES SENATE, 

SUBCOMMITTEE ON TERRORISM, TECHNOLOGY AND HOMELAND

SECURITY, OF THE COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Subcommittee met, pursuant to notice, at 2:28 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Jon Kyl, Chairman 

of the Subcommittee, presiding. 

Present: Senators Kyl and Feingold. 

OPENING STATEMENT OF HON. JON KYL, A U.S. SENATOR 

FROM THE STATE OF ARIZONA 

Chairman KYL. Good afternoon. This hearing of the Judiciary 

Subcommittee on Terrorism, Technology and Homeland Security 

will come to order. We are going to get started a couple of minutes 

early because I think the reality is we are not likely to get very 

many of the other Committee members here this afternoon. There 

is a bankruptcy bill signing ceremony down at the White House 

and at least one other conflict of which I am aware. So I don’t 

think it would do as much good to wait for other members to attend the hearing. 

I do appreciate all of the witnesses being here. Because there 

was one witness that could not attend and some of the members 

won’t be here, we will leave the record open for additional statements or for questions to be submitted to the witnesses. 

This hearing this afternoon is going to focus on Senate bill 873, 

which is the Material Support to Terrorism Prohibition Improvements Act of 2005, a bill which I recently introduced with Senators 

Cornyn, Coburn and Sessions. With this hearing today, I hope that 

we can give this legislation a public airing and prepare for marking 

the bill up in the Committee. 

I am pleased to introduce the witnesses who are going to testify 

today. Barry Sabin is the Chief of the Counterterrorism Section of 

the Justice Department’s Criminal Division. He previously served 

nearly a dozen years in the U.S. Attorney’s office in Miami, Florida, 

where he held the positions of Chief of the Criminal Division, Chief 

of the Major Prosecutions and Violent Crime Section and Deputy 

Chief of the Economics Crime Section. His most recent position in 

that office was First Assistant United States Attorney. 

2

Also with us today is Daniel Meron. He is the Principal Deputy 

Assistant Attorney General of the Civil Division of the Department 

of Justice. Mr. Meron brings a wealth of experience to the legal and 

constitutional issues presented by the legislation we are reviewing 

today. 

Finally, I am pleased to introduce Mr. Andrew McCarthy, who is 

a Senior Fellow at the Foundation for the Defense of Democracies. 

Mr. McCarthy is a former Federal prosecutor who led the prosecution of the case of Omar Abdel Rahman, the so-called blink sheik, 

in connection with the 1993 World Trade Center bombing. He has 

worked on a large number of other counterterrorism prosecutions 

as well. 

I thank all of you for being here today and would suggest that 

if you want to submit a statement in full, we will accept that. If 

you would like to summarize that statement, that would be fine. 

It may be that I am the only one asking oral questions, but as I 

said, if there are members of the Committee that have other questions, if you would be so kind, we could submit those to you and 

perhaps you could get answers to us for the record. 

So with that, let me start, Mr. Sabin, with you. Why don’t I simply ask each of you to make your presentations and then we will 

have a little questioning session after that? Thank you. 

STATEMENT OF BARRY SABIN, CHIEF, COUNTERTERRORISM 

SECTION, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE, 

WASHINGTON, D.C. 

Mr. SABIN. Mr. Chairman, thank you for the opportunity to testify at this important hearing. I will focus on our use of the material support statutes, 18 U.S.C. Sections 2339A and 2339B, which 

are at the heart of the Justice Department’s prosecutive efforts. 

The material support statutes, as enhanced and clarified by the 

USA PATRIOT Act in 2001 and the Intelligence Reform and Terrorism Prevention Act just a few months ago, are critical features 

of the law enforcement approach to counterterrorism. These statutes recognize that there are important components of the terrorist 

infrastructure that stop short of actual attacks. 

We know from experience that terrorists need funding and 

logistical support to operate. They need to raise funds, open and 

use bank accounts to transfer money, and to communicate by 

phone and the Internet. They need travel documents. They need to 

train and recruit new operatives and procure equipment for their 

attacks. 

Thanks to Congress, the material support laws contain the inchoate offenses of attempting conspiracy which allow law enforcement 

the legal basis to intervene at the very early stages of terrorist 

planning several steps removed from the execution of particular attacks. This capability is crucial to the prosecution of terrorist supporters. 

A number of victories in recent months illustrate these powerful 

law enforcement tools and how they operate in practice. On March 

10, 2005, after a five-week trial, a jury in Brooklyn, New York, convicted two Yemeni citizens of, among other charges, conspiring to 

provide material support to Al Qaeda and Hamas pursuant to 18 

U.S.C. Section 2339B. 

3

This case clearly demonstrates two important principles. First, 

United States prosecutors and investigators, like our colleagues in 

the intelligence community and the military, must rely upon our 

international partners to be successful. The defendants could not 

have been brought to justice without the assistance of our German 

colleagues, who worked alongside the FBI in the sting operation 

and made the arrest that ultimately culminated in the extradition 

of the defendants to the United States from Germany. German officials testified about their actions in Federal court in Brooklyn. 

Second, successful indictments and prosecutions often lead to further successes in combatting terror. We are able to leverage the intelligence collected from cooperators in our criminal cases to discover and track down new leads and evidence. In the Al-Moayad 

trial, prosecutors presented the testimony of Yaya Goba, one of the 

convicted defendants in the Lackawanna case; namely, successful 

prosecutions beget more prosecutions. 

On February 10, 2005, a Manhattan jury in United States v. 

Sattar found all defendants guilty on all counts, which also involved material support charges. In February of this year, prosecutors in Detroit obtained a guilty plea from a Hizballah financier. 

The defendant, whose brother is the organization’s chief of military 

security in southern Lebanon, admitted that he helped others raise 

money for Hizballah. Last year, we obtained a guilty plea to violations of both Sections 2339A and B, among other charges, from a 

Pakistani American involved in procurement, training and recruitment of a foreign terrorist organization. 

The operation of the material support statutes is also illustrated 

by a number of pending prosecutions. Last week, the Justice Department announced the unsealing of an indictment that made important use of Section 2339A to charge three individuals for their 

alleged participation in terrorist plots to attack the financial sectors in New York, New Jersey and the District of Columbia. 

Meanwhile, prosecutors in Miami superseded another indictment 

charging a Section 2339A violation adding Kihah Jayyoussi as a 

defendant. According to the superseding indictment, Jayyoussi and 

two co-defendants conspired to fund and support violent jihad 

abroad. 

Another Section 2339 case involves Babar Ahmad and Azzam 

Publications charged in Connecticut in October of 2004. Ahmad, a 

resident of the United Kingdom, allegedly operated and directed 

Azzam Publications and its family of Internet websites to recruit 

and assist the Chechen Mujahadeen and the Taliban, and to raise 

funds for violent jihad abroad. 

In Florida, the trial of four of the defendants in the Sami AlArian case is scheduled to begin next month on May 16. In a 53-

count indictment, Sami Al-Arian and eight other defendants, including Ramadan Shalla, the acknowledged worldwide leader of the 

Palestinian Islamic jihad, have been charged with using facilities 

in the United States, including the University of South Florida, as 

a North American base for the Palestinian Islamic jihad. 

In August of 2004, a Chicago grand jury indicted three defendants for participating in a 15-year racketeering conspiracy in the 

United States and abroad to illegally finance Hamas’s activities in 

Israel, the West Bank and Gaza Strip, including providing money 

4

for the purchase of weapons and the inclusion of material support 

charges. 

These cases, plus other matters that have already resulted in 

convictions, demonstrate the manner in which we have come to 

rely upon the material support statutes. Looking to the future, we 

are confident that the amendments to the material support statutes passed by Congress and signed by the President in December 

will significantly enhance the capabilities of prosecutors to eradicate terrorist activity at every stage. 

Significantly, the definition of material support or resources was 

expanded to encompass all property, whether tangible or intangible, and all services, except for medicine and religious materials. 

The amendments also clarify the meaning of the terms ‘‘personnel,’’ 

‘‘training’’ and ‘‘expert advice or assistance,’’ as used in the definition of material support or resources. 

Two other changes to the material support statutes are also significant. First, the recent amendments expand the jurisdictional 

basis for material support charges. Second, the amendments also 

clarify the knowledge requirement of Section 2339B. That section 

now expressly says that the defendant must either know that the 

organization is a designated foreign terrorist organization or that 

it engages in certain terrorist conduct. 

The Intelligence Reform Act also created a new material support 

offense, Title 18 United States Code, Section 2339D, that explicitly 

criminalizes the receipt of military-type training from a foreign terrorist organization. 

The amendments to the material support statutes contained in 

the Intelligence Reform and Prevention Act of 2004 are currently 

scheduled to sunset at the end of 2006. These amendments are critical to maintaining the efficacy of the material support statutes as 

a potent prosecutorial tool in combatting terrorism. The Department therefore supports making these revisions to the material 

support statutes permanent, and we commend you for introducing 

the Material Support to Terrorism Prohibition Improvements Act, 

which would do just that. 

The proposed legislation also contains another important provision which the Department strongly supports. Under current law, 

those aliens who have received military-type training from or on 

behalf of a terrorist organization may be deported from this country. Such aliens, however, are not inadmissible. This anomaly in 

the law does not make any sense and the proposed legislation 

would fix this problem by rendering inadmissible those aliens who 

have received military-type training from or on behalf of a terrorist 

organization. The proposed legislation also contains other worthwhile provisions, and the Department looks forward to working 

with you and other Committee members on this important piece of 

legislation. 

The changes recently enacted in the Intelligence Reform Act have 

built upon and enhanced the work of prior Congresses. Together, 

this legislation has provided law enforcement and prosecutors with 

a solid framework within which to pursue the goal of prevention, 

disruption and eventual eradication of terrorism within our borders 

and beyond. 

5

We as prosecutors in the Justice Department have more work to 

do to eliminate this deadly threat, and we urge you in Congress to 

continue to build upon and enhance the legal tools needed to accomplish our mutual goals. 

Mr. Chairman, thank you again for inviting us here and giving 

us the opportunity to discuss how the material support statutes are 

being used in the field to fight terrorism. Together, we will continue our efforts to defeat those who would harm this country. 

Chairman KYL. Well, Mr. Sabin, I appreciate that statement very 

much. Thank you. 

Dan Meron. 

STATEMENT OF DANIEL MERON, PRINCIPAL DEPUTY ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION, DEPARTMENT 

OF JUSTICE, WASHINGTON, D.C. 

Mr. MERON. Thank you, Mr. Chairman. Thank you very much for 

inviting me here today to testify on the subject of the Material Support Terrorism Prohibition Improvements Act that you recently introduced. 

The material support to terrorism prohibitions that are codified 

in 18 U.S.C. Sections 2339A and 2339B are the product of a strong 

bipartisan consensus that in order effectively to fight the war 

against terrorism, you have to attack terrorism at its source. These 

provisions do that by preventing groups from raising money and 

obtaining the property, personnel and expertise necessary to commit their terrorist acts. 

As you know, Mr. Chairman, Section 2339B, which prohibits the 

provision of material support or resources to designated foreign terrorist organizations, was signed into law by President Clinton in 

1996, and the constitutionality of this provision in its original form 

was vigorously defended by the Department of Justice under Attorney General Janet Reno. 

In 2000, the United States Court of Appeals for the Ninth Circuit 

broadly upheld the constitutionality of this provision against a series of legal challenges. The Ninth Circuit squarely rejected the 

claim that the statute impermissibly imposed guilt by association, 

and likewise held that the Constitution did not require proof that 

the accused had the specific intent of aiding the terrorist organization’s unlawful purposes. 

As the Ninth Circuit explained, this provision prohibits the act 

of giving material support, not speech, and there is no constitutional right to facilitate terrorism. Any incidental burdens on 

speech, the Ninth Circuit held, were not necessary to achieve 

Congress’s purposes. In December of last year, the en banc court 

reaffirmed those critical holdings. 

In separate decisions in 2000 and 2003, however, the Ninth Circuit held that the terms ‘‘personnel’’ and ‘‘training’’ in the Act’s definition of material support or resources, which were not at the time 

defined in the Act, were unconstitutionally vague. Although the Department of Justice had given those terms narrowing constructions 

that we believed addressed any constitutional vagueness problems, 

those narrowing constructions were not contained in the statute 

and were not legally binding on the Department. 

6

As you know, Mr. Chairman, in the Intelligence Reform and Terrorism Prevention Act of 2004, Congress directly addressed the 

Ninth Circuit’s concerns with the potential vagueness of the provision. Specifically, in Section 6603 of that Act, Congress provided 

specific definitions for the terms ‘‘training’’ and ‘‘expert advice and 

assistance.’’ Congress also adopted a proviso that made clear that 

no individual could be convicted of providing personnel to a terrorist organization unless that person knowingly provided one or 

more individuals, including himself, to work under the organization’s direction and control. 

Congress’s action providing these definitions was a responsible 

and considered response to the judicial branch’s constitutional rulings and reflects a highly productive cooperation between the executive and legislative branches on this matter. 

Those amendments had an immediate beneficial effect. In light 

of those provisions, last December the en banc Ninth Circuit Court 

vacated the injunction that had previously been in place regarding 

the terms ‘‘personnel’’ and ‘‘training,’’ and more recently on April 

1 of this year vacated the district court’s injunction regarding ‘‘expert advice and assistance.’’ The sufficiency of these definitions are 

now before the district court for a fresh look in light of Congress’s 

amendments, and we are confident in the strength of our position 

that these provisions are constitutional. 

Unfortunately, as you also know, Senator Kyl, Section 6603 of 

the 2004 Act is set to sunset at the end of this calendar year. Allowing those provisions to sunset would, we believe, be a grave 

mistake because the language in the Act would then revert to the 

language that the Ninth Circuit had held was unconstitutionally 

vague. Indeed, even before that point, the very existence of a sunset provision undermines the beneficial impact of these definitions 

on the certainty and clarity of these legal prohibitions. 

For these reasons, the Department of Justice strongly supports 

the provision in Senate bill 783 that would make permanent the 

amendments contained in Section 6004 of the Intelligence Reform 

Act. 

Once again, Mr. Chairman, I thank you for inviting me to be 

here today and I look forward to answering any questions that you 

may have with regard to the constitutional challenges that have 

arisen with respect to these provisions. 

[The joint prepared statement of Messrs. Sabin and Meron appears as a submission for the record.] 

Chairman KYL. Thank you, Mr. Meron. That is very helpful. 

Mr. McCarthy.

STATEMENT OF ANDREW C. MCCARTHY, SENIOR FELLOW, 

FOUNDATION FOR THE DEFENSE OF DEMOCRACIES, WASHINGTON, D.C. 

Mr. MCCARTHY. Thank you, Mr. Chairman. Thank you for inviting me here this afternoon. It is an honor to testify here in connection with a matter of such importance to our national security. 

From a time shortly after the World Trade Center was bombed 

in February of 1993 through early 1996, I was privileged to lead 

the prosecution against Sheik Omar Abdel Rahman and 11 others 

for conducting against the United States a war of urban terrorism 

7

that included, among other things, the World Trade Center bombing and a conspiracy to carry out what was called a day of terror, 

a plan for simultaneous bombings of New York City landmarks 

that was thwarted by the dedicated work of the FBI and the New 

York Joint Terrorism Task Force. 

I also worked on some of our office’s other major terrorism prosecutions and helped run the command post near Ground Zero in 

lower Manhattan in the wake of the 9/11 attacks. So while I have 

not been in the trenches for a few years, it is from the trenches 

that I come. And it is from that perspective that I thank this Committee and you, Mr. Chairman, and Congress for its tradition of 

strong bipartisan support in ensuring that law enforcement has the 

tools it needs to protect our national security. 

It was in that tradition in 1996 that we first received the desperately needed material support statutes that the Committee is 

considering today. And it is in honoring that tradition that I respectfully and enthusiastically urge the Committee to support the 

proposed bill, the Material Support to Terrorism Prohibition Improvements Act of 2005. 

The proposed bill focuses on what are two of the most critical aspects of our national struggle to defeat the network of Islamic militants that is waging war against us: first, the need to beef up the 

statutory arsenal that enables law enforcement to stop attacks at 

an early stage before they endanger Americans, and, second, the 

need to recognize that threat posed by para-military training. 

Where terrorism is concerned, the object for law enforcement and 

for the rest of Government must always be to prevent attacks from 

happening rather than simply bringing terrorists to justice only 

after mass murder has occurred. This is a lesson we have learned 

gradually and painfully in the years of terrorist attacks between 

the World Trade Center bombing and the 9/11 atrocities eight 

years later. 

Early on, Federal law was just not up to the task of a mission 

aimed at anticipatory prevention and disruption rather than postincident investigation and prosecution. While the law severely punished completed acts of terrorism, especially if the loss of life resulted, it also featured gaps in enforcement and grossly insufficient 

penalties, severely challenging law enforcement’s ability to strangle 

plots in the cradle and cut off the supply lines on which terror networks thrive. 

The 1996 legislation, including the material support statutes this 

Subcommittee is again considering today, both ratcheted up the 

penalties for terrorism-related crimes and, perhaps more significantly, gave prosecutors urgently needed tools designed to root out 

terrorist plots at an early stage, shut down funding channels and 

place a premium on preventing terrorist acts rather than simply 

prosecuting them afterwards. 

While it is true that the greatest threats we face come from the 

front-line operatives who are actually willing to carry out terrorist 

attacks, we have learned the hard way that those terrorists cannot 

succeed without support networks—people and entities willing to 

fund them, to train them, to provide them with fraudulent documents to facilitate their travel, and to provide them with other assets that they need to carry out their savagery. 

8

It is not surprising then that the material support laws have become the backbone of the Justice Department’s prevention strategy, 

which I believe is one of the critical reasons why we have not had 

a domestic terror attack in the United States since September 11, 

2001. 

Some court decisions which cast doubt on the constitutionality of 

the statutes threaten to dilute the effectiveness of material support 

laws in protecting public safety. This Congress promptly responded 

last year with needed action to cure the alleged defects, particularly clarifying statutory terms that some courts had found void for 

vagueness. 

That legislation promoted national security and due process, the 

former by maintaining material support as a powerful tool, and the 

latter by ensuring that we are clear on exactly what conduct is prohibited. But these improvements were sunsetted and if they are allowed to lapse, both national security and due process would be 

compromised. Sunsets also create a climate of uncertainty which 

could hamper current enforcement. 

The proposed bill would make the 2004 improvements permanent, and for that reason alone I respectfully suggest that it would 

merit the Committee’s support. But the bill also has other beneficial features. In my mind, the most important is a clear-eyed recognition of the dangers posed by para-military training. This is a 

much under-appreciated aspect of the terrorist threat. It runs like 

a thread through every attack we have faced. It is the reason basis 

for fearing sleeper cells inside our country. 

Current expert estimates suggest that as many as 70,000 people 

may have undergone Training in the Al Qaeda camps. This training is known to include commando attacks, the use of small and 

large firearms, the construction of explosives, techniques for neutralizing sentries and various other maneuvers necessary for carrying out bombings, hijackings and other varieties of attack. The 

bill addresses this serious problem by proposing to tighten up our 

immigration laws and enhancing criminal penalties to protect the 

American people from what we know to be the perils of this threat. 

I thank the Committee again for inviting me here. I thank you, 

Mr. Chairman, and I thank you and the Congress for taking the 

time to consider this important legislation. 

[The prepared statement of Mr. McCarthy appears as a submission for the record.] 

Chairman KYL. Well, thank you, Mr. McCarthy, and I thank all 

of you for being supportive of our efforts here to extend the material support statute. When I ask these questions, if any of you 

would like to comment, please feel free to do so, but I am going to 

direct a couple of them to specific individuals simply because you 

have made reference to certain items. 

One of the points, Mr. McCarthy, you just made is, if I gather 

this correctly, that because cases take a while to develop and prosecute, you could end up with a situation where not only is there 

a climate of uncertainty, but you could actually have a break in the 

continuity of the applicable statute during the course of a particular prosecution. 

How real are these dangers of lack of certainty? Some opponents 

say, well, it is premature; we don’t need to extend these statutes 

9

yet, we need to get more experience with them, and so on. That is 

kind of the argument that is made here. Address that argument, 

if you would, in the context of your testimony. 

Mr. MCCARTHY. Yes, Senator. When I used to do what these gentlemen sitting beside me do for a living, two of the things that you 

really wanted to have when you indicted a case was evidentiary 

certainty—you wanted to make sure that the things you thought 

you could prove, you could actually prove—and the other thing is 

legal certainty. 

In terms of enforcement efforts, the prosecutor wants to know, in 

many ways like the defendant wants to know, if the law at the 

time of charge, if the law at the time of indictment is going to be 

the same law that applies at the time of trial. Creating a climate 

of uncertainty around the charging decision, I think, is something 

that could seriously hamper enforcement efforts. 

I also think that the comparison that I have seen some make between the record of what has gone on under the PATRIOT Act, 

where we have had three-and-a-half years to take a look at what 

happened there without considering the sunset provisions, is importantly different from the sunset provisions here. 

With respect to the PATRIOT Act, the sunset provisions are 

about investigative techniques. As a law enforcement person, you 

are never comfortable in a situation where you don’t know whether 

what you are doing today will still be considered legal a year from 

now or two years from now. But with investigative techniques, the 

problem is somewhat limited. 

When you are talking about the substantive law that will actually apply to people, I think it is critically important for the Justice 

Department to know that the laws that it is making prosecutive decisions on today, the laws that it is charging people with, the substantive law that is going to apply to a case is the same at the time 

of indictment as it will be at the time that the case has to be tried. 

Chairman KYL. Great point. 

Now, Mr. Meron, I think this question is first addressed to you, 

but I think in view of the string of examples, Mr. Sabin, you gave 

to the Committee, you might want to relate to this as well. 

Two parts, really, to the question, one related to your comments 

about the Ninth Circuit decision, in which you have got an injunction vacated now, the district court still to take a look, in view of 

the circuit’s opinion, to see whether there is any further action to 

be taken. But what would sunset, as you point out, if we were not 

to extend the statute are these definitions which have been very 

useful in answering the court’s original determination of unconstitutionality by providing the texture through definitions of what we 

really mean by these terms, ‘‘personnel’’ and ‘‘training.’’

The thought occurs to me, why wouldn’t anybody want those 

definitions to continue if the court has, A, found them useful and 

constitutional; and, B, if you allowed the statute to sunset, you 

would be right back into a situation of unconstitutionality again. 

And then part two: isn’t it similar with respect to Section 2339B 

where you have got a particular terminology in the statute now 

saying that the activities covered by that should not be applied or 

construed so as to abridge the exercise of First Amendment rights, 

specifically saying you need to do this with reference to those conVerDate 0ct 09 2002 12:29 Jun 20, 2005 Jkt 021818 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\21818.TXT SJUD4 PsN: CMORC
10

stitutional rights? If that is sunsetted, you wouldn’t have that kind 

of important provision in the statute now protecting people’s individual rights. 

So in both of these two cases, it seems to me we have got, 

through court ruling and then subsequent action by Congress and 

the original language that we put in the statute, important protections that we want to maintain and that would ironically be eliminated if the sections were allowed to sunset. 

Mr. MERON. Senator Kyl, I couldn’t agree more. I think it is very 

strange to oppose making these provisions permanent in light of 

those judicial decisions. The one thing we know for sure is that the 

language that existed before these amendments had been declared 

unconstitutional by the court of appeals. 

It is from our perspective very strange to have a law right now 

where, in the absence of further action by Congress, you are going 

to revert automatically to language that the courts have held to be 

unconstitutional. It doesn’t seem right, it doesn’t seem responsible. 

We strongly believe that the language that was added in the 

amendments makes the language sufficiently specific and clear. It 

is clearly constitutional on its face, and the courts remain ready to 

consider any challenge by any particular defendant to the constitutionality of these provisions as they may or may not be applied in 

a particular case. So there are ample constitutional protections and 

safeguards. 

As you said, the one thing we know for sure is that the impact 

of these definitions has been to move in the direction of making the 

terms more narrow and more circumscribed. And why you would 

object to making those permanent on the mere possibility that in 

the future a court might want you to go even further in that direction is somewhat beyond me. 

Chairman KYL. Mr. Sabin, you identified a series of important 

cases in which the material support statute had been effective for 

law enforcement in helping to prosecute would-be terrorists. There 

are some organizations that argue that they are broad in their 

scope. I think of groups like Hamas and others who perhaps would 

argue that, well, there are dual purposes to these organizations 

and it is very difficult to differentiate the activities which are 

sought to be proscribed this legislation versus those that are humanitarian in purpose, and so on, and that you are not able to 

make those distinctions in the enforcement of the statute. Therefore, I don’t know whether they would argue it is a vagueness issue 

in a constitutional sense or simply not a good idea as a matter of 

law enforcement to try to attack the problem at its source, as you 

have said. 

How do you respond to those who use this argument that you are 

affecting the good behavior of some of these organizations with an 

overly broad attack on support for them? 

Mr. SABIN. Congress has clearly and unequivocally spoken to 

that point, Mr. Chairman. In designing the regimen of 2339A and 

B, the material support statutes, the language of the statute and 

congressional intent has indicated that the entire logistical support 

network, not only the person that is seeking to be the bomb-thrower or the operational individual, but the person who is funding or 

recruiting or the like, should be equally responsible. 

11

The idea that you can free up certain resources—because these 

material support items are fungible for purposes of Hamas’s humanitarian mission for school or social services, it frees up those 

resources which are devoted to its military wing. Congress has 

been very clear. The international community has followed or is in 

the process of following Congress’s leadership in that regard to say 

that we will not allow the purposes of the donors’ intent to be a 

factor in the application of the material support statutes. 

Otherwise, you would have an escape hatch in Section 2339B 

which would go directly against congressional intent. The idea that 

Congress has set forth a list under 2339B of 40 foreign terrorist organizations that are radioactive and to provide that support in 

whatever form of resources or services should not be countenanced—it is clear to the public so that the public can take knowing and transparent actions. It is clear in terms of how we apply 

that in the courts of law. And to inject uncertainty in that, 

springboarding on the other responses, I think is directly contrary 

to the effectiveness of those statutes and the viability of the material support statutes going forward. 

Chairman KYL. Has any court ever determined the statute overly 

broad based upon that particular argument as far as you know? 

Mr. SABIN. No, not that I am aware of. There is language out 

there regarding intent, and the Intelligence Reform Act clarified 

that specific intent is not the requirement, which would feed into 

that kind of escape hatch argument under 2339B. But I think the 

language in the Intelligence Reform Act specifically recognizes that 

it is knowing that the foreign terrorist organization has been listed, 

or the fact that they have been engaged in violent activity, rather 

than that activity would be used to further the particular goals and 

that would not inject a humanitarian argument in that regard. 

Chairman KYL. Right. Those are the two specific knowledge requirements there, or alternative knowledge requirements. 

Mr. SABIN. Yes, sir. 

Chairman KYL. Either Mr. Meron or Mr. Sabin, could you quantify for the Committee the number of times that the Department 

of Justice has prosecuted for support of material terrorism or the 

number of convictions that have been obtained? 

Mr. SABIN. Yes. My understanding is that there have been 96 

material support prosecutions in 21 different districts. More broadly, relating to terrorist financing, which would include, for example, 

the International Emergency Economic Powers Act, the numbers go 

to 135 prosecutions and 70 convictions. To the extent that you require additional details or specificity in that regard, we would be 

happy to provide that to the Committee. 

Mr. MERON. Senator Kyl, if I may add one thing to the answer 

to the prior question, in fact, on the issue of the breadth of the coverage of the provision, that is an issue on which the full Ninth Circuit en banc court unanimously ruled that there was no constitutional problem, that you did not have to have any requirement that 

the person intended to assist the unlawful purposes of the organization. 

They adopted in full an earlier analysis of a panel which had 

made the very point that Mr. Sabin had made that goods are funVerDate 0ct 09 2002 12:29 Jun 20, 2005 Jkt 021818 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\21818.TXT SJUD4 PsN: CMORC
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gible, money is fungible, and that Congress may constitutionally attack the problem adequately by covering all contributions. 

Chairman KYL. I appreciate that. Now, I am trying to look at 

this from a broad perspective and Mr. McCarthy has already related to one aspect of this, but let me just ask all of you, if we fail 

to extend the provisions that we have been discussing here today 

and if we allow this Act to sunset, what kind of impediments is 

that going to place in the way of our investigation and prosecution 

of support for terrorists? 

Mr. SABIN. I think it would have a dramatic effect, along with 

other key provisions of the PATRIOT Act, such as the informationsharing under Sections 203(b) and (d) and the like. These are critical to the manner not only in which we bring criminal prosecutions, but the ramifications of how we operate on a daily basis. 

The idea that we have moved from reacting to a particular incident to a prevention mindset, the ability to work in a task force 

approach, the ability to have prosecutors involved earlier on in the 

investigatory process, the ability to have the flexibility to bring 

criminal and intelligence tools to bear on a particular matter, are 

all emanating from the fact that these and other provisions should 

not sunset. 

Investigators have been relying upon it to work together to 

achieve the desired results of prevention. The material support 

statutes have been the key to that early detection and prevention 

aspect. In case after case, that has been our mandate and our mission, and I think it would be a significant deterrent effect to law 

enforcement and the national security officials’ ability to effectively 

do what the American public expects and demands of us and it 

would have significant and negative dramatic effects. 

Mr. MERON. And, Mr. Senator, what it would mean is within the 

entire geographic territory of the Ninth Circuit, which is a very 

large territory, as you know, the injunctions would then come back 

to life prohibiting enforcement of personnel, training, expert advice 

and assistance. So even the core type of conduct that I think everyone would recognize—training a terrorist in making a bomb, for example—would be enjoined. The enforcement of that provision 

would be enjoined. 

Chairman KYL. One of the questions I have always had is how 

we deal with the financing, and especially this method of financing 

that has been involved coming from the Middle East in particular, 

the so-called hawallas. 

Are there any other tools that any of you would deem useful in 

efforts to curb the illicit use of this method of transferring funds? 

Mr. SABIN. Section 373 of the PATRIOT Act changed the intent 

standard relating to illegal money-transmitting devices. That has 

been extraordinarily helpful for us in bringing cases around the 

country from Massachusetts to Northern Virginia, last week in Detroit and elsewhere, the ability to use what is now codified as Title 

18, Section 1960, to address the hawalla aspects. 

I think that some provisions relating to obtaining tax return information, and talking to our colleagues in the joint terrorist task 

force about the ability to obtain expeditiously and appropriately 

taxpayer return information, are some areas which we can improve 

the ability for investigators to understand the information and 

13

bring terrorist financing cases to bear. So we can work with the 

Congress in that regard to get specific recommended legislative initiatives. 

Chairman KYL. I have always wondered how we deal better with 

that particular problem. Let me just say that your answer prompts 

me to suggest that if there are ideas that any of you have or you 

become aware of that you think would be useful in the preparation 

of additional legislation, it is important that we receive those ideas 

because, clearly, the terrorist organizations are very good at adapting to our techniques. And whatever we are able to do to investigate and prosecute today’s terrorists, tomorrow terrorists are 

going to figure out a way around. So as there is adaptation or 

unique methods of operating here, it is useful for us to be able to 

continue to allow the law to evolve as well. 

One of the statements in the written testimony of law professor 

David Cole, who couldn’t be here today, is—and I will just quote 

it; it is on page 6 of his statement. ‘‘Section 3 of the bill would deny 

entry to any foreign national who is a member of an undesignated 

terrorist organization, subject only to a largely meaningless defense.’’

Was it you, Mr. Sabin, that was addressing the asylum and entry 

provisions? 

Mr. SABIN. Yes. 

Chairman KYL. Is this too broad? He uses the example of a member of the Israeli army as an example of somebody that might be 

denied entry under this particular provision. Do you think that is 

true, and if not, why not? 

Mr. SABIN. I think the anomaly that exists that individuals who 

are here and can be removed from the country can somehow have 

the opportunity to enter into the United States is a disconnect and 

that we should seek to address it. 

In terms of having focused and constitutionally appropriate language, we are willing to work with the Committee in order to address that important goal. But the national security imperative 

that individuals are able to come across our border when we know 

that they have trained in terrorist military-style training camps, I 

believe, is an important issue that should be addressed through our 

immigration laws. 

I think that the proposed legislation as to both designated and 

undesignated groups is also an important aspect because the administrative process to get certain groups that are emerging and 

quickly identify them to be labeled in terms of a list approach takes 

time. 

We can provide some examples to the Committee by which individuals went to a military-style training camp that we understood 

to be, in retrospect, military training, but was not designated at 

the time, but ultimately became designated. That is a gap that 

should not exist in the law. 

So in direct answer, I think it is an important legislative initiative. We would support clarifying language—I haven’t read Professor Cole’s testimony, but to address those concerns, but to make 

sure that that gap is closed. 

Chairman KYL. Mr. McCarthy. 

14

Mr. MCCARTHY. Just to echo what Mr. Sabin said, two things, 

and I tried to describe this in more detail in the statement I submitted to the Committee. The bombers of the World Trade Center 

in 1993 trained right here in the United States in 1988 and 1989. 

They didn’t have a designation. They weren’t members of a particular organization. It was an ad hoc group that was training in 

the United States. 

The same is true of the group that sought to carry out what I 

referred to as the day of terror plot. They trained in western Pennsylvania and in a public park in New Jersey. It is absolutely essential that we fashion a provision such as what is fashioned in the 

proposed bill that captures those sleeper cells because they are the 

ones that not only do we need to figure in a speculative sense are 

the bigger threat to us. We know because we have seen it before—

it has happened before—that these are exactly the types of cells 

that we need to capture. 

The other thing is trial lawyers like to say to juries that you 

shouldn’t check your common sense at the door when you come into 

the courtroom and to the jury box. The escape provision that Professor Cole refers to as meaningless actually requires or says that 

the foreign national can demonstrate by clear and convincing evidence that he did not know and should not reasonably have known 

that the organization was a terrorist organization. 

I frankly just don’t see how anyone behaving reasonably could 

conceivably think of the army of a foreign national that is an ally 

of the United States that we have treaty and trade relations with 

and various other relations with could be confused as a terrorist organization. I just don’t think that is reasonable. 

Chairman KYL. Mr. Meron. 

Mr. MERON. Mr. Senator, the provision that Professor Cole is 

complaining about is not a provision that your proposed bill 

changes. It is the preexisting law, and the only thing which your 

bill does which is very important is it eliminates a disparity between the standards for admissibility and deportation. 

From the perspective of the Civil Division, which is the entity 

within the Department of Justice that litigates the immigration 

cases, relying exclusively on deportation rather than inadmissibility is a significant impediment. It takes a long time to go 

through the entire deportation proceedings for someone who is already in this country. There is a bit of a catch-22, which is that 

the longer they are able to stay, the more of a reliance interest the 

courts deem them to have in the United States, the more protected 

rights they are held to have. So there is really no justification for 

that kind of disparity. That is the only thing your bill does. 

Another way of putting the point Mr. McCarthy put is there are 

conscientious officers within the Department of Homeland Security 

who implement the immigration laws. They use common sense in 

doing so. There are a array of judicial review provisions that apply 

under existing laws that your bill does nothing to remove. 

Chairman KYL. I just would observe, too, that our Subcommittee 

has held hearings on different aspects of this phenomenon that you 

have got a new type of entity here. It is not like the old Red Brigade or some of these other—you almost had to have a membership 

card. The would-be terrorists today frequently aren’t signed up 

15

with any particular group, and the groups themselves are very 

amorphous and it is more of a brotherhood, one person helping another, not necessarily signed up as a particular terrorist organization. 

While some are in existence and can be put on a list, there are 

a lot of other folks that are simply not working within that construct, which is one reason that we had to adopt the so-called 

Moussaoui fix. With Zacarias Moussaoui in the news these days, I 

think it is relevant to note that at the time that the warrant was 

sought to look into his computers, we weren’t sure we could identify him with a particular terrorist group. Yet, there was good information that he was engaged in terrorist training. 

So in this whole notion of trying to adapt to the circumstances 

of terrorism, a rather new phenomenon here, we shouldn’t be so 

bound up in the ways of the past and the definitions in our law 

that we don’t acknowledge this phenomenon and both write and interpret our laws in a way that we can be flexible enough to deal 

with it. 

I think I just have a couple of more questions here, but one of 

the questions had to do with the penalties under 2339A and B. The 

sentence of five years for material support offenses and a minimum 

of three years for receiving military-type training—are these penalties out of the mainstream? Are they appropriate to the type of 

offenses, in your view? 

Mr. MCCARTHY. I think, Senator, for the most part they are. The 

one exception I would say would be 2339A. It seems to me that if 

we know—and this is what a jury finding of conviction on a count 

like that would say—if we know that somebody has knowingly and 

intentionally contributed to an act of terrorism, so you don’t even 

have the situation where somebody said, well, gee, whiz, I thought 

I was giving to Hizballah’s social security wing—if we have a situation where the bottom line is we are saying that somebody intentionally contributed to the furtherance of an actual brutally violent 

terrorist attack, it strikes me that it is insufficient to say that five 

years does the trick for that. 

Chairman KYL. Back to this other issue, and it is kind of a broad 

question, but the whole question of designating terrorist groups. 

Some people criticize this process and therefore it is a basis for 

criticizing the fruits of that process which are involved in this legislation. 

What is your take on the process for designating the terrorist 

groups? Is it adequate? 

Mr. SABIN. Courts have specifically found that it is consistent 

with due process and there are no constitutional infirmities. The 

D.C. Circuit Court specifically held in that regard. 

The Intelligence Reform and Prevention Act modified some of the 

time periods for the redesignation, as well as the phenomenon that 

we have seen of groups taking on an alias. The way some targets 

of our operations have changed the cell phones that they use, the 

organizations have changed their names in order to possibly avoid 

the foreign terrorist organization designation list. 

So the ability to not unduly burden the Government for every 

two years going through that redesignation process, as well as 

every time the name changed regarding an alias, is sort of an inVerDate 0ct 09 2002 12:29 Jun 20, 2005 Jkt 021818 PO 00000 Frm 00019 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\21818.TXT SJUD4 PsN: CMORC
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side-baseball, important contribution that is in the Intelligence Reform Act and we applaud the Congress in that regard. The challenges have been brought by groups, and consistently the courts 

have said it is consistent with due process. 

Chairman KYL. It kind of goes back to that notion about you 

don’t check your common sense at the door. When you are dealing 

with terrorists, with a group of very clever people who continually 

evolve, as I said before, it seems to me that we have to be nimble 

as well. This statute combines a recognition of that with, nevertheless, sound responses to the questions of constitutional law that 

have been raised and at least in one case adjudicated. 

It would be a shame to sunset for both the reason that we have 

got a good statute here that has been used as much as it has to 

very good effect and in view of the consequences of its sunsetting 

on our investigative techniques, as well as, ironically, the notion 

that some of the protections that have been built into it would be 

eradicated were it to be sunsetted. 

So it seems to me that you three gentlemen have made a strong 

case for continuing this important tool in our war against the terrorists. It would be my desire to move the support for continuing 

the statute in existence forward. 

I was just about to end here, Russ. If Senator Feingold would 

now like to either make a statement or ask you some questions, he 

is certainly able to do that, but I am finished with my questions. 

STATEMENT OF HON. RUSSELL D. FEINGOLD A U.S. SENATOR 

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. Thank you, Mr. Chairman. I am sorry I didn’t 

get here earlier. A vote is starting right now. I will just be brief. 

Thank you so much. 

I am glad this hearing is focused on the very important material 

support issue. This is one of the provisions of the USA PATRIOT 

Act that has actually been struck down as unconstitutional. So certainly I agree it is worthy of attention. 

However, I am disappointed that this hearing is focused on the 

expansion of the material support statute and related laws, rather 

than also examining the problems with that statute. As I noted last 

fall when the intelligence reform conference passed the Senate, I 

am very concerned about the material support provision contained 

in that legislation. Of course, the legislation did take steps to cure 

the constitutional defects in the law. It responded to a Federal 

court that ruled last year that Section 805 of the PATRIOT Act, 

criminalizing the provision of expert advice or assistance to a terrorist organization, was vague and therefore violated the First 

Amendment. 

But I am not convinced that these provisions actually cure the 

constitutional flaws. Most significantly, the statute still does not 

have an adequate intent requirement. Mr. Chairman, given the 

continuing constitutional problems with this law, we should not be 

eliminating the sunset or increasing the penalties for material support. We don’t know yet how this new, revised provision will work 

or what problems might arise because of this. So this hearing is a 

first step and I appreciate that, but I do want to say we have much 

work to do. 

17

Mr. Chairman, just one question. 

Mr. Sabin and Mr. Meron, the material support provision requires knowledge on the part of the accused that the organization 

in question is a designated terrorist organization or that it has engaged or engages in terrorism. It does not, however, require any intent to further the terrorist goals of the organization or to further 

the commission of unlawful acts. 

I understand and appreciate the need to be able to arrest and 

prosecute those who intend to do us harm as early as possible in 

their planning, but I am concerned that this could sweep in people 

who are actually trying to prevent terrorism or trying to help innocent civilians. 

So, first, does the Department of Justice believe that providing 

peace-making and conflict resolution advice to a designated organization is barred by the material support statute? 

Mr. SABIN. With respect to your comment, Senator, the intent 

provision, we believe, as articulated in the Ninth Circuit opinion 

and as adopted in the Intelligence Reform and Prevention Act, is 

the appropriate standard. It provides, consistent with legislative intent and consistent with the framework that Congress set up, that 

we should not only go after the person who is operational, but the 

person who is writing the check, regardless of the humanitarian or 

military purposes of that organization. 

So once they have been designated, they are radioactive. And as 

long as that individual knows that they have been designated or 

knows of the violent activities, we should not have, as I talked 

about earlier, an escape hatch under Section 2339B so that that donor’s intent can somehow prove not violative of the statute. So I 

think it would be substantially hindering our ability to use the 

backbone of our prosecutorial efforts to expand that. 

Senator FEINGOLD. So the answer is a person is still potentially 

included if they are providing peace-making and conflict resolution 

advice? That is what I asked. Does the Department of Justice believe that providing peace-making and conflict resolution advice to 

a designated organization is barred by the material support statute? 

Mr. SABIN. It depends. For example, if there was a lawyer that 

wanted to provide that kind of assistance, there is now a provision, 

as passed in the Intelligence Reform Act, 2339B(j), that enables the 

individual to seek clarity for providing that type of assistance. 

Senator FEINGOLD. So there are certain narrow exceptions that 

would be allowed? 

Mr. SABIN. Correct. 

Senator FEINGOLD. Does the Department believe that humanitarian organizations providing tsunami relief in parts of Sri Lanka 

controlled by the Tamil Tigers violated the material support statute? 

Mr. SABIN. It would depend again on the particular application. 

If you were working under the direction and control and you knew 

that that group was engaged in violent activities, it could be a violation of the statute. However, if it was something that is protected 

under the application of 2339B(j), then it would not be our exercise 

of prosecutorial discretion to bring that person into the criminal 

18

justice system. So, again, it is going to depend upon the specific 

facts that are involved. 

Senator FEINGOLD. Well, I appreciate those answers and they 

help me understand it. My understanding of the notion of vagueness, however, is that a person needs to have some sense in advance of whether they are violating the law or not. Otherwise, it 

is vague, and our continued conversations about this should be in 

that spirit, whether these provisions really do give a person adequate notice that they may be doing something that they shouldn’t 

be doing. 

Mr. Chairman, I know I came in here late. I look forward to 

working with you on this issue. Thank you, Mr. Chairman. 

Chairman KYL. Thank you. 

Again, I want to thank all of the witnesses. I don’t know how 

many days we will leave this record open, but if anybody has questions or if you would like to submit anything else for the record, 

you are certainly entitled to do that. I want to thank you again for 

your testimony here today. I appreciate it. 

[Whereupon, at 3:24 p.m., the Subcommittee was adjourned.] 

[Submissions for the record follow.]

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