U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001

21–139 PDF 2005

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 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL ISSA, California 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

ADAM SMITH, Washington 

CHRIS VAN HOLLEN, Maryland

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 

MARK GREEN, Wisconsin 

TOM FEENEY, Florida 

STEVE CHABOT, Ohio 

RIC KELLER, Florida 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

LOUIE GOHMERT, Texas 

ROBERT C. SCOTT, Virginia 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ANTHONY D. WEINER, New York

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 

(III)

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

(1)

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. 

2

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 

3

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. 

4

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 comVerDate 0ct 09 2002 12:54 Jun 24, 2005 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\051005\21139.000 HJUD1 PsN: 21139
5

plaints 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 

6

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 

7

1The 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. 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. 

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

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. 

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 (inspector.general@usdoj.gov) 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. 

8

3For 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. 4For 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. 

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. 

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 disVerDate 0ct 09 2002 12:54 Jun 24, 2005 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6621 G:\WORK\CRIME\051005\21139.000 HJUD1 PsN: 21139
9

criminatory 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.

10

• 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 

11

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.

12

• 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 

13

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 videoand 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 MusVerDate 0ct 09 2002 12:54 Jun 24, 2005 Jkt 000000 PO 00000 Frm 00017 Fmt 6633 Sfmt 6621 G:\WORK\CRIME\051005\21139.000 HJUD1 PsN: 21139
14

lim 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. 

15

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. 

16

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 

17

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 AlTimimi 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 

18

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 

19

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 AlMoayad 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 participaVerDate 0ct 09 2002 12:54 Jun 24, 2005 Jkt 000000 PO 00000 Frm 00023 Fmt 6633 Sfmt 6621 G:\WORK\CRIME\051005\21139.000 HJUD1 PsN: 21139
20

tion 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 § 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 § 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 

21

a criminal enterprise, also charges Salah under 18 U.S.C. § 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. 

22

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. § 2339D(c)(1). 

Section 2339D fills an arguable gap in 18 U.S.C. § 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. 

23

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 

24

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. 

25

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. § 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. § 1227(a)(4)(B); 18 U.S.C. § 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 LTTEcontrolled 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. 

26

1See 18 U.S.C. §§ 2339A, 2339B, as amended by the Intelligence Reform and Terrorism Prevention Act of 2004, at § 6603, Pub. L. No. 108–458 and the USA PATRIOT Act § 805, Pub. L. 

No. 107–56. 

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.’’ 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). 

27

2The government may point to the exception in 18 U.S.C. § 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. 

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

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 

28

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? 

29

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. 

30

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. 

31

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 

32

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 lanVerDate 0ct 09 2002 12:54 Jun 24, 2005 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\051005\21139.000 HJUD1 PsN: 21139
33

guage 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. 

34

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, 

35

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. 

36

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. 

37

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 

38

on the PATRIOT Act. I’ve never seen these many hearings, this indepth 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 Ladenthinking 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. 

39

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. 

40

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 

41

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? 

42

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 ‘‘sneakand-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? 

43

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 

44

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? 

45

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? 

46

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? 

47

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 ofVerDate 0ct 09 2002 12:54 Jun 24, 2005 Jkt 000000 PO 00000 Frm 00051 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\051005\21139.000 HJUD1 PsN: 21139
48

fice, 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—

49

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 

50

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.] 

51

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.] 

(53)

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.

Æ