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S. HRG. 108–918

AIDING TERRORISTS: AN EXAMINATION OF THE

MATERIAL SUPPORT STATUTE

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

MAY 5, 2004

Serial No. J–108–72

Printed for the use of the Committee on the Judiciary

(

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COMMITTEE ON THE JUDICIARY 

ORRIN G. HATCH, Utah, Chairman 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

LARRY E. CRAIG, Idaho 

SAXBY CHAMBLISS, Georgia 

JOHN CORNYN, Texas 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

JOHN EDWARDS, North Carolina 

BRUCE ARTIM, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

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C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 17

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 1

prepared statement .......................................................................................... 153

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 3

prepared statement .......................................................................................... 155

WITNESSES 

Bald, Gary M., Assistant Director, Counterterrorism Division, Federal Bureau 

of Investigation, Department of Justice, Washington, D.C. ............................. 11

Bryant, Daniel J., Assistant Attorney General, Office of Legal Policy, Department of Justice, Washington, D.C. ..................................................................... 8

Cole, David, Professor of Law, Georgetown University Law Center, Washington, D.C. ........................................................................................................... 24

Rosenzweig, Paul, Senior Legal Research Fellow, Center for Legal and Judicial Studies, The Heritage Foundation, Washington, D.C. ............................... 26

Wray, Christopher A., Assistant Attorney General, Criminal Division, Department of Justice, Washington, D.C. ..................................................................... 6

QUESTIONS AND ANSWERS 

Responses of Christopher A. Wray to questions submitted by Senators Leahy 

and Grassley ......................................................................................................... 44

Responses of Daniel J. Bryant to questions submitted by Senator Feingold ..... 78

Responses of Gary M. Bald to questions submitted by Senator Feingold ........... 103

Response of David Cole to a question submitted by Senator Leahy ................... 107

SUBMISSIONS FOR THE RECORD 

Bald, Gary M., Assistant Director, Counterterrorism Division, Federal Bureau 

of Investigation, Department of Justice, Washington, D.C., prepared statement ...................................................................................................................... 108

Bryant, Daniel J., Assistant Attorney General, Office of Legal Policy, Department of Justice, Washington, D.C. , prepared statement ................................. 115

Chesney, Robert M., Assistant Professor of Law, Wake Forest University 

School of Law, Winston-Salem, North Carolina, prepared statement ............. 127

Cole, David, Professor of Law, Georgetown University Law Center, Washington, D.C., prepared statement ....................................................................... 136

Moschella, William E., Assistant Attorney General, Office of Legislative Affairs, Department of Justice, Washington, D.C., letter ..................................... 150

Rosenzweig, Paul, Senior Legal Research Fellow, Center for Legal and Judicial Studies, The Heritage Foundation, Washington, D.C., prepared statement ...................................................................................................................... 159

Wray, Christopher A., Assistant Attorney General, Criminal Division, Department of Justice, Washington, D.C., prepared statement .................................. 175

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AIDING TERRORISTS: AN EXAMINATION OF 

THE MATERIAL SUPPORT STATUTE 

WEDNESDAY, MAY 5, 2004 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC 

The Committee met, pursuant to notice, at 10:08 a.m., in Room 

SD–226, Dirksen Senate Office Building, Hon. Orrin G. Hatch, 

Chairman of the Committee, presiding. 

Present: Senators Hatch, Craig, Leahy, Durbin, and Feingold. 

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. 

SENATOR FROM THE STATE OF UTAH 

Chairman HATCH. I think we will begin the hearing. I think 

every American would agree that our government continues to face 

an unprecedented challenge. On September 11, 2001, we suffered 

a devastating attack on American soil that resulted in the 

unprovoked and tragic death of well over 3,000 of our fellow citizens. The Bush administration responded in a decisive and careful 

manner, as we did here in Congress. 

One of the key actions this Committee took was to write, pass, 

and oversee the PATRIOT Act and other laws that provide the 

tools, information, and resources necessary to combat terrorist 

threats. As equally important, this Committee took the responsibility of overseeing the application of these laws. 

This is part of our continuing bipartisan series of hearings examining the effectiveness of current laws aimed at protecting America 

from terrorism. One of this Committee’s challenges is to ask whether additional tools and oversight are needed as we evaluate the 

adequacy of current laws, including the PATRIOT Act’s impact on 

our security, privacy, and civil liberties. I would like to thank my 

colleague, Senator Leahy, as well as other members of this Committee for their cooperation in conducting these important hearings. I also want to express my appreciation to the men and women 

in the Justice Department who are leading this Nation’s vital efforts to prevent terrorism, and I look forward to hearing the Department’s witnesses today and their views. 

Two of the Justice Department’s most respected prosecutors recently represented the Department of Justice at a Judiciary Committee field hearing in my home State of Utah. Deputy Attorney 

General James Comey and U.S. Attorney Paul Warner provided 

very thoughtful testimony on how the anti-terrorism statutes are 

being implemented. 

2

Prior to the enactment of the 2001 law, uncertainty existed as to 

whether the ban on giving material support to terrorists by U.S. 

citizens included expert advice and assistance applied to acts occurring outside the United States. We fixed that uncertainty with Section 805, which also strengthened the prior material support ban 

by, one, adding to the list of underlying terrorist crimes; two, making it clear that material support includes all types of monetary instruments and activities; and three, enhancing penalties for those 

convicted of providing material support to terrorists. 

The law has enabled prosecutors to stop a number of terrorist 

plots, and this law has facilitated the prosecution and conviction of 

several terrorist cells and many individuals throughout our country. In one of the first cases using this new provision, six U.S. citizens who lived near Buffalo, New York, were convicted for providing support or resources to terrorists by participating in a weapons training camp at an Al Qaeda terrorist training camp in Afghanistan. In March, Section 805 enabled the successful convictions of terrorists in Virginia who aided the Taliban. And currently, 

Section 805 is allowing the prosecution of a graduate student in 

Idaho charged with aiding terrorist groups devoted to waging jihad 

against Russia and Israel. I think this Committee can be justifiably 

proud of writing and passing Section 805. 

Of course, I am aware that some people are concerned that, at 

some point in the future, one of the as-yet-unused material support 

provisions might be misused. I am opposed to any misuse of the 

provisions, as anyone else. 

I am also mindful that on two separate occasions, once in the 

Ninth Circuit and most recently in a California district court, this 

statute has been found to be vague. It is unfortunately the case the 

courts in the Ninth Circuit are often not the best barometer of constitutionality. I look forward to learning more about this litigation 

today and I am pleased to read that the Department is open to 

making any necessary refinements or additions to this particular 

section of the statute. 

I hope that this hearing will both bring to light the very real successes stemming from the PATRIOT Act’s terror-fighting tools as 

well as to provide the Committee an opportunity to share constructive suggestions for clarifying the Act, if necessary, and I know that 

our witnesses will share those things with us today. 

I know that everyone on this Committee shares the common goal 

of protecting our country from additional terrorist attacks, and I 

believe we are all committed to achieving that goal with complete 

respect for the fundamental freedoms that all of us as American 

people come to appreciate and to expect. 

This Committee has an historical tradition of examining, debating, and resolving some of the most important legal and policy 

issues that have been presented to Congress. We are once again 

faced with an important task that will have a profound effect on 

our country’s security and liberty. As we face the reauthorization 

of the PATRIOT Act next year, by the end of next year, I know we 

will be up to the task, and it is going to be because of excellent witnesses like we have today who will help us to understand these 

things more. We appreciate your taking time. We appreciate your 

being here and we look forward to your testimony. 

3

[The prepared statement of Senator Hatch appears as a submission for the record.] 

With that, I will turn to our Democrat leader on the Committee, 

Senator Leahy. 

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR 

FROM THE STATE OF VERMONT 

Senator LEAHY. Thank you, Mr. Chairman. I am glad to have 

this long-awaited continuation of the series of oversight hearings 

that we started last year on the USA PATRIOT Act. It is the first, 

really, oversight hearing of any kind we have had this year and I 

welcome it and I welcome our distinguished witnesses. 

I thank the Chairman for scheduling this at a time when witnesses on all sides could be heard. This is a complex issue and 

sometimes we have a time when we can hear one side or the other. 

Of course, it is a lot better if we can hear all the sides. 

We are still waiting for Attorney General Ashcroft to appear before this Committee. He made a brief appearance and told us it 

could only be brief on March 4 of last year. I know he has been 

hospitalized, but I think of how this Committee used to bring his 

predecessor up here and see her almost every other day because 

one or another member of the Committee, including, at that time, 

then-Senator Ashcroft, wanted to ask her questions, ask the AG 

questions. I know the Attorney General was hospitalized for a medical condition, but he did return to work 2 months ago. He has had 

a number of press conferences around the country, and I wish he 

would find time to come by this Committee, so we could at least 

give Americans the impression that we really are carrying out our 

oversight duties. 

In that regard, if there is anybody here from the Justice Department other than our distinguished witnesses, if you might, I am 

sure you still have the same address down there. Check on some 

of the dozens of letters that have been sent to you by myself and 

by Republican members and other Democratic members of this 

Committee that seem to go into the lost letter division down there. 

Feel free to answer them. Our address remains the same, U.S. Senate, Washington, D.C. I have a listed number. Feel free to call if 

you would like to answer. I would love to do it while the administration is still here. 

We are also still working on a time to hear FBI Director Mueller. 

I understand that he was available to testify next Wednesday, but 

we cannot do it that day because Secretary Ridge is unavailable. 

I would like to hear from the FBI Director: after all, we have direct 

oversight over his agency. Let us hear from him. There seems to 

be this feeling that you have to have people testify in tandem. The 

FBI Director is the FBI Director. He is not Director of Homeland 

Security. The Homeland Security Director is the Homeland Security Director, he is not the Director of the FBI. We should not have 

to wait until they can both be here like ventriloquists or something. 

We ought to be able to hear them separately. 

If we cannot have a hearing next week with the FBI Director because the Homeland Security Director is not available, then maybe 

we could hold a hearing on the administration’s claim that it can 

designate United States citizens as enemy combatants and hold 

4

them incommunicado without charges. We see the Hamdi and 

Padilla cases working themselves all the way up to the Supreme 

Court—they will be decided by that Court within the next two 

months and we have not found time to do any oversight on the 

issue ourselves. 

I have also asked the Chairman to hold a hearing on the reported abuse of prisoners by Americans in Iraq. Given the wideranging jurisdiction of this Committee over civil liberties and prisons, the reported role of civilian contractors, our role in enactment 

of the Military Extraterritorial Jurisdiction Act, and the lack of 

Congressional oversight, I think we need to act. 

It is amazing to me that the Bush administration has known 

about these atrocious things in the prisons of Iraq for 5 months 

and never said a word to either the Republican leadership or the 

Democratic leadership of the House or the Senate. They knew 

about it for 5 months, and then when the press reports it, they said 

they are shocked. They are appalled. Well, I think all Americans 

are shocked and appalled and the very, very brave American men 

and women who are fighting in Iraq and following the rules, and 

following our traditions and doing what they are supposed to do 

are equally shocked and appalled. 

But the administration has known about this for 5 months and 

they only become shocked when the press reports it. In fact, they 

asked the press to hold off reporting it for a couple of weeks. Now, 

I realize by not allowing it to come out until the time they did, it 

did not interrupt campaign schedules. But this should go way beyond campaign schedules. We have created a horrendous problem 

for ourselves in the Middle East and a horrendous problem for the 

next time, God forbid, an American soldier is captured. 

And to keep it well hidden from everybody, including—and 

maybe it is an example of what happens in this Congress—we don’t 

do oversight and maybe the White House knows they have such a 

complacent Congress that we will never ask questions, so why 

bother to volunteer any answers? 

But it is the height of hypocrisy for anybody in the chain of command in this administration to stand up and say they are shocked 

because it became public when it is something they have known 

about for 5 months, and never once did they express that shock to 

the people they are supposed to respond to. 

Now, back to the focus of this morning’s hearing. We have two 

criminal statutes that have come under fire in the Federal courts. 

Sections 2339A and 2339B of title 18 prohibit the provision of material support to terrorists and to designated foreign terrorist organizations. Since the 9/11 attacks, these statutes have become the 

weapon of choice for domestic anti-terrorism prosecution efforts. 

But with the increased use of these statutes, some problems have 

come to light. 

For example, several courts have held parts of the definition of 

material support to be unconstitutionally vague, and the Chairman 

has referred to that. Other courts have raised questions about the 

level of intent required to obtain a conviction. Many have expressed 

justifiable concern that the statutes impose guilt by association. We 

all know that was rejected by the Supreme Court decades ago during the McCarthy era. 

5

There have been other problems raised, as well. Former Assistant Attorney General Viet Dinh, who has been a staunch defender 

of the PATRIOT Act, has recognized a need to clarify the material 

support laws to avoid government overreaching. In January 2004, 

he said, quote, ‘‘I think we can all agree that there are certain core 

activities that constitute material support for terrorists which 

should be prohibited and others which would not be prohibited. 

Congress needs to take a hard look and draw the lines very clearly 

to make sure that we do not throw out the baby with the 

bathwater,’’ close quote. This hearing should give us a chance to 

discuss where those lines should be drawn. 

Thank you, Mr. Chairman. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

Chairman HATCH. Thank you, Senator. 

I, too, have been very upset and disturbed by what has happened 

over in Iraq and am happy that the Intelligence Committee is holding a hearing today that I will attend. 

Senator LEAHY. A closed-door hearing. 

Chairman HATCH. Well, I agree, but it is a very important hearing. And then the Armed Services Committee is very strongly looking into it and I think will hold hearings on this. I am not objecting 

to hearings in this Committee, but we are going to have to see 

what our jurisdiction is before—I have to be satisfied to that before 

we do anything along those lines. But I am hopeful that at least 

those two Committees in the Senate will get to the bottom of this, 

and I hope that the people who committed these atrocities will be 

punished severely for them. 

Senator LEAHY. If I might, Mr. Chairman, I absolutely agree 

with you in saying the people who did this should be punished, because the vast majority of the American men and women who are 

over there putting their lives on the line do follow the rules. What 

bothered me is that this Congress, both the Republican and Democratic leadership, was never told about something that we should 

have been told about. The question comes to my mind, are there 

other things we haven’t been told about? And I have a terrifying 

suspicion that what we have seen is only the tip of the iceberg and 

the rest has been held back. 

Chairman HATCH. I hope you are wrong, Senator— 

Senator LEAHY. I do, too. 

Chairman HATCH. —but assuming that you are wrong, what has 

happened is unjustifiable under any circumstances. Americans and 

our military are certainly not the type of people who would do 

things like this ordinarily. So this has been a terrible, terrible 

chapter and a very difficult time for, I think, the world and our 

country, as well. I think we have got to get to the bottom of it and 

we will. 

I am pleased to have our first panel of witnesses here today. I 

am pleased to have Christopher Wray, who is the Assistant Attorney General of the Criminal Division in the Department of justice; 

Hon. Dan Bryant, who is the Assistant Attorney General of the Office of Legal Policy at the Department of Justice; and finally we are 

going to hear from Gary Bald, Assistant Director of the 

Counterterrorism Division at the Federal Bureau of Investigation. 

6

We really appreciate all three of you being here and appreciate 

the Department of Justice in sending so many of its representatives to join us today, those who really do have expert opinions and 

information on this matter and we look forward to hearing your 

testimony today. 

We will start with you, Mr. Wray. 

STATEMENT OF CHRISTOPHER A. WRAY, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Mr. WRAY. Mr. Chairman, Senator Leahy, members of the Committee, thank you for asking the three of us here today. I am 

pleased to discuss with you the importance of the material support 

statutes in our efforts to prevent future terrorist attacks. 

We have scored key victories. Since September 11, we have 

charged 310 defendants with criminal offenses as a result of terrorism investigations. One hundred seventy-nine of those have already been convicted. We have broken up terrorist cells in Buffalo— 

Chairman HATCH. How many did you say you have charged? 

Mr. WRAY. We have charged 310 with criminal offenses that 

arise directly out of terrorism investigations. 

Chairman HATCH. And 170— 

Mr. WRAY. And 179 have been convicted thus far. 

Chairman HATCH. They have actually been convicted of terrorist 

activities? 

Mr. WRAY. Yes, sir, and we have—a number of the other cases 

are, of course, pending at this time. We also have a wide geographic scope. We have broken up terrorist cells in Buffalo, Charlotte, Portland, and Northern Virginia. We are dismantling the terrorists’ financial network. One hundred thirty-six million dollars 

have been frozen in 660 accounts around the world. 

But the recent tragedy in Madrid was yet another grim reminder 

that our enemies continue to plot catastrophic attacks. Several 

weeks after that, British authorities arrested nine suspects and 

seized half a ton of ammonium nitrate fertilizer. And just a few 

weeks ago, Osama bin Laden urged Al Qaeda and its supporters 

to continue their terrorist attacks against the United States. 

The Department’s top priority is to prevent terrorist attacks. Because our adversaries not only accept, but glorify killing themselves 

in the course of attacking innocent people, we cannot and will not 

limit our role to simply picking up the pieces after terrorist attacks. 

Our offensive strategy targets both the perpetrators of violence and 

those who give them material support. 

The chronology of a terrorist plot, I think, is best understood as 

a continuum from idea to planning to preparation to execution and 

attack, and the material support statutes enable us to strike earlier 

and earlier on that continuum. We would much rather catch a terrorist with his hands on a check than on a bomb. 

The statutory definition of material support indicates the 

breadth of resources that terrorists need. They need weapons, obviously, but they also need the money to buy them, the training to 

use them, and the personnel to wield them. Furthermore, while 

planning their attacks, they need housing, expert advice on targets 

7

and methods, means of transportation, and documents to cross borders. 

Of course, the material support statutes also allow us to prosecute those who actually seek to commit violence. Members of a cell 

in Lackawanna, New York, as you mentioned, Mr. Chairman, attended a terrorist training camp in Afghanistan and pleaded guilty 

to material support charges and have all agreed to cooperate. They 

are serving prison terms ranging from eight to 10 years. Members 

of another cell in Portland, Oregon, tried to travel to Afghanistan 

after September 11 to fight with the Taliban, and after being 

charged with conspiring to provide material support, they pleaded 

guilty to seditious conspiracy and IEEPA violations and were sentenced to terms ranging from seven to 18 years. 

Tens of thousands have attended camps to learn skills like bombmaking and covert communications, and it is very difficult to know 

when and how they may go operational. Nor should we wait to find 

out. The material support statutes enable us to take these defendants off the streets, into court, and on to prison. These statutes 

also allow us to disrupt earlier stages of terrorist plots by pursuing 

those who support the front-line killers. 

For example, Iyman Faris extended airline tickets and surveyed 

a potential target for Al Qaeda. He was recently sentenced to 20 

years for providing material support. In March in San Diego, two 

other men plead guilty to providing material support to Al Qaeda. 

They sought to buy missiles to sell in turn to Al Qaeda associates. 

Each of them faces up to 15 years in prison for this offense. 

And, of course, terrorist supporters can also provide money itself. 

For example, we uncovered a group in Charlotte, North Carolina, 

that used the proceeds of a cigarette smuggling ring to fund 

Hezbollah. The lead defendant in that case was convicted of 16 

counts, including material support, and was sentenced to 155 years 

in prison. 

Terrorist financiers also conceal their activity through front organizations. For example, in Tampa, former professor Sami Al-Arian 

faces material support charges for allegedly serving as a leader of 

the Palestinian Islamic Jihad, sometimes called PIJ, and PIJ, as 

the Committee may know, has killed over 100 people, including 

U.S. citizens. 

Terrorists themselves have voiced frustration at the success of 

our efforts thus far to cut off their funds. I keep coming back to 

the example of Jeffrey Battle, who is a member of the Portland cell, 

who in a recorded conversation that Mr. Bald’s colleagues at the 

FBI picked up, complained, and I am quoting now, ‘‘We don’t have 

support. Everybody is scared to give up any money to help us because that law that Bush wrote about, everybody is scared. He 

made a law that says, for instance, I left out of the country and 

I fought, right, but I wasn’t able to afford a ticket but you bought 

my plane ticket. You gave me the money to do it, and by me going 

and me fighting, by this new law, they can come and take you and 

put you in jail.’’ 

Battle was right. His ex-wife, who knowingly helped fund his 

travel to fight in Afghanistan, was prosecuted, pleaded guilty, and 

is now in prison, like Battle himself. 

8

We also know that our pursuit of terrorist financiers can lead to 

the conviction of the violent terrorists themselves. As I noted earlier, members of a cell just across the river in Northern Virginia 

were recently convicted of providing material support. In her opinion, Judge Brinkema quoted a report admitted into evidence that 

was written by a fundraiser for Benevolence International Foundation, or BIF, which I think, as Senator Durbin knows, is an Islamic 

charity in Chicago. This fundraiser had been invited, the evidence 

showed, to observe the Virginia cell members’ military-style training, and he praised their fervor and their training in his report. 

This report first came to the attention of investigators in Chicago, who suspected BIF of diverting charitable contributions to 

terrorist organizations. They forwarded the report to the Department and to Federal prosecutors in Virginia. The result is that in 

Chicago, the BIF director pleaded guilty to racketeering conspiracy, 

admitting that donors were misled into believing that their donations would be supporting peaceful causes when they weren’t. He 

was sentenced to over 11 years in prison. 

In Virginia, nine defendants on the other end have been convicted of offenses arising out of their jihad training. The relationship between these two cases and between these two investigations 

illustrates the proactive strategy that the Department is pursuing 

and needs to pursue to win the war on terror. 

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

us the opportunity to discuss how the material support statutes are 

being used to fight terrorism, and after you hear from my colleagues, Mr. Bryant and Mr. Bald, I would be happy to respond to 

any questions you or the other members may have. 

Chairman HATCH. Thank you, Mr. Wray. 

[The prepared statement of Mr. Wray appears as a submission 

for the record.] 

Chairman HATCH. We will turn to Mr. Bryant now. 

STATEMENT OF DANIEL J. BRYANT, ASSISTANT ATTORNEY 

GENERAL, OFFICE OF LEGAL POLICY, DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Mr. BRYANT. Good morning, Mr. Chairman and distinguished 

members of the Committee. Thank you for the opportunity to join 

you to discuss recent court decisions concerning the material support statutes and to offer some ideas for improving those important 

statutes. 

A critical aspect of the Department’s strategy for fighting and 

winning the war against terrorism is preventing and disrupting 

terrorist attacks before they occur, and the material support statutes are an invaluable tool for prosecutors seeking to bring charges 

against and incapacitate terrorists before they are able to cause 

death and destruction. 

As this Committee is well aware, there has been recent litigation 

involving certain provisions of the material support statutes. In my 

testimony today, I will review some concerns expressed by courts 

a bout various aspects of the material support statutes, concerns 

that, unfortunately, may interfere in the future with the Department’s ability to prosecute those providing vital assistance to terrorists and terrorist organizations. I will then discuss the DepartVerDate 0ct 09 2002 11:34 Jun 11, 2008 Jkt 095100 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\95100.TXT SJUD1 PsN: CMORC
9

ment’s response to these concerns and some ways that Congress 

might consider addressing them. Finally, I will briefly suggest a 

couple of other ideas for improving the material support statutes. 

Some courts have found key terms in the material support statutes’ definition of material support or resources to be unconstitutionally vague, potentially undermining the Department’s ability 

to prosecute those supplying assistance to terrorists or terrorist organizations. 

The Ninth Circuit, for instance, has held that the terms ‘‘personnel’’ and ‘‘training’’ in the definition of material support or resources are void for vagueness under the First and Fifth Amendments because they bring within their ambit constitutionally protected speech and advocacy. The Ninth Circuit has specifically expressed the concern that an individual who independently advocates the cause of a terrorist organization could be seen as supplying that organization with personnel, and thus has concluded 

that the term ‘‘personnel’’ could be construed to include unequivocally pure speech and advocacy protected by the First Amendment. 

Likewise, the Ninth Circuit has asserted that the term ‘‘training’’ 

could be interpreted by reasonable people to encompass First 

Amendment protected activities, such as instructing members of 

foreign terrorist organizations on how to use humanitarian and 

international human rights laws to seek the peaceful resolution of 

conflicts. Applying this Ninth Circuit precedent, the United States 

District Court for the Central District of California recently held 

the term ‘‘expert advice or assistance’’ in the definition of material 

support or resources to be impermissibly vague. 

The Justice Department respectfully disagrees with these decisions holding key terms in the definition of material support or resources to be unconstitutionally vague, and is either pursuing or 

contemplating whether to pursue further judicial review in these 

cases. 

The Department, for example, has filed a petition for rehearing 

en banc with the Ninth Circuit, asking that the court reconsider 

the decision of the three-judge panel finding the terms ‘‘personnel’’ 

and ‘‘training’’ to be unconstitutionally vague. In its petition, the 

Department has pointed out that the term ‘‘personnel’’ has a discernible and specific meaning found in basic dictionary definitions 

of the word. It describes those working under the direction or control of a specific entity. 

As a result, independent advocacy of a designated foreign terrorist organization’s interests or agenda falls outside the scope of 

the statutes’ coverage. Just as one independently extolling the virtues of McDonald’s hamburgers is not supplying personnel to the 

restaurant chain, neither is one independently advocating on behalf 

of a foreign terrorist organization supplying personnel to the organization. 

Likewise, the Department has argued in its petition for rehearing en banc that the term ‘‘training’’ is not unconstitutionally 

vague. The material support statutes unequivocally prohibit persons within the United States or subject to its jurisdiction from 

providing any form of training to terrorists or to designated foreign 

terrorist organizations, and again, the word ‘‘training’’ is a common 

10

term in the English language, a clear definition of which can be 

found in any dictionary. 

The Department is also currently considering whether to appeal 

to the Ninth Circuit the Central District of California’s decision 

holding the term ‘‘expert advice or assistance’’ to be impermissibly 

vague. As the Department argued in the district court in that case, 

the Department does not believe that the meaning of the term ‘‘expert advice or assistance’’ is insufficiently clear. Expertise is a familiar concept both in the law and to those outside of the legal profession. Rule 702 of the Federal Rules of Evidence, for example, defines ‘‘expert testimony’’ to be testimony based on scientific, technical, or other specialized knowledge. 

To be absolutely clear, the Department believes that the terms 

‘‘personnel,’’ ‘‘training,’’ and ‘‘expert advice or assistance,’’ as they 

are used in the material support statutes, are not unconstitutionally vague and should not need further clarification in order to 

withstand constitutional scrutiny. Even so, given the court decisions reviewed above, which, if not overturned, threaten to hamper 

the Department’s ability to prosecute those who provide assistance 

to foreign terrorist organizations, Congress may wish to consider 

amending the material support statute to provide more specific 

definitions of ‘‘personnel,’’ ‘‘training,’’ and ‘‘expert advice or assistance.’’ 

Similarly, in light of the reservations expressed by some courts 

that the material support statutes could be interpreted to prohibit 

activities protected by the First Amendment, Congress may wish to 

consider amending the statute to make it absolutely clear that the 

statute should not be construed so as to abridge the exercise of 

First Amendment rights. 

In addition, if Congress were to revise the material support statutes to respond to these court decisions, there are at least two deficiencies with the current statutory language that Congress might 

also well consider addressing. First, at present, the material support statutes reach a limited number of situations where material 

support or resources are provided to facilitate the commission of 

terrorism. Title 18 U.S.C. § 2339A currently forbids the provision of 

material support or resources for only certain Federal crimes likely 

to be committed by terrorists, but not others. Consequently, the Department would support clarifying the scope of the statute to ensure that all terrorist attacks are covered, and we would be happy 

to work with Congress toward that end. 

In addition, Congress may wish to consider revising the definition of material support or resources. The types of property and 

services specifically enumerated in this definition potentially may 

not include all of the possible types and forms of support that could 

be given to terrorists or to foreign terrorist organizations. 

For this reason, the Department would support refining the definition to encompass any tangible or intangible property, or service, 

while at the same time maintaining the current statutory exemptions for medicine and religious materials. Such a refinement 

would heighten the efficacy of the material support statutes and 

make it less likely that an individual prosecuted in the future for 

providing property or services to a terrorist or a foreign terrorist 

11

organization would be able to take advantage of any lack of clarity 

in the statutes. 

Thank you, Mr. Chairman and members of the Committee, and 

I look forward to answering your questions. 

Chairman HATCH. Thank you, Mr. Bryant. 

[The prepared statement of Mr. Bryant appears as a submission 

for the record.] 

Chairman HATCH. Mr. Bald, we will turn to you. 

STATEMENT OF GARY M. BALD, ASSISTANT DIRECTOR, 

COUNTERTERRORISM DIVISION, FEDERAL BUREAU OF INVESTIGATION, DEPARTMENT OF JUSTICE, WASHINGTON, 

D.C. 

Mr. BALD. Good morning and thank you, Mr. Chairman, Senator 

Leahy, for inviting me here to speak to you today on the importance of the material support statutes to the FBI’s investigative efforts in the counterterrorism program. 

Since 9/11, the FBI’s counterterrorism program has made comprehensive changes to meet its primary mission of detecting, disrupting, and defeating terrorist operations before they occur. We 

have spent the last two-and-a-half years transforming operations 

and realigning resources to meet the threats of the post-September 

11 environment. 

As a part of this transformation, the FBI has undertaken a number of initiatives to improve information sharing and coordination 

with our National and international partners. We are committed to 

the interagency partnerships we have forged through our Joint Terrorism Task Forces. Likewise, we are committed to fostering international partnerships and recognize the critical role that they play 

in our ability to develop actionable intelligence. To be fully successful, however, these partnerships must have the legal tools necessary to investigate the entire range of terrorist activities, including the provision of material support. 

To prevent terrorist attacks, we need to be able to dismantle the 

entire terrorist network, from those that actually pull the cord on 

a suicide vest, to those who train the person making the bomb, to 

those who raise the money and facilitated the planning of the attack. By aggressively attacking the entire network, we maximize 

our ability to disable the networks on which successful terrorist operations depend. 

To accomplish this goal, we need the means to neutralize persons 

who occupy positions within the terrorist organizational structure 

but are also at a distance from the actual terrorist attacks themselves. The material support statutes, as broadened by the USA 

PATRIOT Act, are a vital component of our investigative and preventative efforts, targeting the support and resource needs of terrorist networks. 

Post-9/11, the FBI’s main focus has been on preventing the next 

attack. In order to accomplish this mission, we must be able to 

identify and disrupt and dismantle what we refer to as ‘‘sleeper 

cells’’ present in the United States. Once we identify these groups 

and their members, we must be able to take proactive measures to 

ensure that their future plans are no longer viable. We must be 

able to take appropriate law enforcement action to put them out of 

12

commission, either through the appropriate material support statutes or other criminal violations or by using immigration laws to 

deport them. 

The terrorists who pose the most imminent danger to the United 

States today are those that facilitate financial transactions through 

clean bank accounts and other monetary systems, those that provide weapons and tactical training, those that recruit new members 

for terrorist organizations, those that set up safe and secure Internet accounts for facilitation of communication, those that provide 

safe havens to other terrorists, those that provide expert advice on 

U.S. targets and how to attack those targets, those that manufacture and procure identity documents, those that facilitate and provide transportation and other logistical duties, and finally, those 

individuals who have actually traveled overseas to attend Al Qaeda 

and other terrorist training camps and provide instruction on how 

to make bombs, surveil a target, and other terrorist trade craft, 

and have returned now to the United States to await further operational direction. 

Mr. Chairman, I will skip the portions of my written for-therecord statement that deal with specific successes that we have 

had, many of which were detailed by Mr. Wray previously, and I 

will be happy to answer any questions that you might have. 

Chairman HATCH. Thank you, and we will put all full statements 

in the record as if delivered. 

[The prepared statement of Mr. Bald appears as a submission for 

the record.] 

Chairman HATCH. Let me begin with you, Mr. Wray. In your 

written testimony, you describe the danger we face from sleeper 

agents, individuals who attended terrorist training camps and then 

entered our country where they keep a low profile until the day 

that they become operational. In light of the fact that there may 

have been tens of thousands around the world who received such 

training in the camps, I am deeply concerned that there may be a 

number of sleepers in the United States right now. 

If you were to locate a person who had traveled from some other 

country to a terrorist camp where he received months, if not years 

of training in things like bombs, bioterror, and conducting terrorist 

operations and then took up residence in the United States, and 

even if he made no explicit threats against our country, do the statutes we have been discussing today provide law enforcement with 

all the legal tools that are necessary in order to incapacitate such 

a person? 

Mr. WRAY. Mr. Chairman, I think you have kind of put your finger on a significant concern that I think we all have. I think that 

my guess is that most Americans would think that an individual 

found within the United States fitting the profile that you have described should be behind bars. The truth is, it may be harder than 

most people would expect for us to put him there. 

And while the sort of person you describe is regarded as extremely dangerous and not someone we would want walking the 

streets, it may be more difficult than people would expect or that 

I believe Congress intended for us to make a case against such a 

person, because training to commit terror under certain circumstances may not be a crime, which just stands logic on its head. 

13

And, of course, a sleeper by definition is someone who has, in effect, gone to sleep, is in a sort of dormant wait-and-see kind of 

mode, and if the person has been well trained in covert communications and operational discipline, it may be very hard to—even if we 

know the person, for example, has been in a terrorist training 

camp in the past, to identify something right here, right now that 

the person is actually doing. They may be waiting for a message, 

for a signal, that kind of thing. 

Analyzing our options, our starting point would always be the 

material support statutes, in particular whether the camp that that 

person might have been at was associated with something like Al 

Qaeda and whether we might be able to charge 2239B, providing 

material support to a foreign terrorist organization. 

But we still have to prove that the sleeper did something that 

qualified as providing material support, and usually, we would go 

in the direction of showing that the person provided himself as personnel. The person went and trained in a terrorist training camp, 

intending to conduct terrorist activities. But even in the Ninth Circuit, especially in the Ninth Circuit, that and all the people who 

live in that circuit, that is a risky option now in light of some of 

these court cases. We think the court got it wrong, but that is a 

problem in that district, I mean, that circuit now. 

Assuming we got over those hurdles, though, we still have the 

issue of looking for—it may often be that the information that links 

the person to the kinds of acts that would get us over the hump 

are often foreign intelligence information that is of such a sensitivity that even with the protections of CIPA, the Classified Information Procedures Act, we can’t use it because of agreements with 

the Foreign Intelligence Service and that sort of thing. 

So even leaving all those aside, we may be able to deport the person under the immigration laws, and while that should give us 

some comfort, the fact is, if we go that route, the person is removed 

to another country and turned loose there and we have no ability 

to make sure that they are not engaged in further terrorist activity. 

Chairman HATCH. Thank you. Mr. Bryant, let me just ask you 

this question. Some people are concerned that prosecutors might 

use this section against completely innocent people who, through 

no fault of their own, donate money or other resources to an organization they would have no reason to believe is a foreign terrorist 

organization. 

The Ninth Circuit’s opinion quoted my statement upon introduction of the Senate conference report as proof that Congress intended that there be a scienter requirement in the statute. The 

court defined the term, quote, ‘‘knowingly’’ in 18 U.S.C. 2239B to 

mean that the government must prove that the defendant either, 

one, knew of the organization’s designation as a terrorist organization, or two, knew of the unlawful activities of that organization. 

Do you think that Congress needs to clarify the scienter requirement in the statute, and if so, do you think that the Ninth Circuit’s 

approach is the correct way to define the scienter requirement? 

Mr. BRYANT. Thank you, Senator. We think that Congress may 

do well to clarify the scienter requirement after the Ninth Circuit’s 

decision in Humanitarian Law Project v. Department of Justice in 

December of last year. The reason for that, as you have laid out, 

14

is that the scienter requirement articulated by the court in that 

case is not what we think is appropriate under Section 2239B. That 

is, the court there held that a defendant either needed to know of 

the designation of the foreign terrorist organization, or have knowledge of the underlying activities that gave rise to the designation 

made by the Secretary of State. 

Those underlying activities are often classified, known only to a 

small number of people that participate with the Secretary in the 

designation order. As a consequence, we think that is an unduly 

burdensome scienter requirement that the government would be 

hard-pressed to meet. 

As a consequence, we think, and we have argued as such in our 

petition for rehearing en banc in the Ninth Circuit, that the 

scienter requirement should be understood to require either knowledge of the designation of the foreign terrorist organization or 

knowledge that that organization participates in terrorist activities. 

Chairman HATCH. Thank you. Senator Leahy, my time is up. 

Senator LEAHY. Thank you, Mr. Chairman. 

We had extensive notice of this hearing, actually not just for 

weeks but for months, but for some reason, we didn’t receive the 

administration’s testimony until late last night. We would be happy 

to drive down and pick up these things if you are having trouble 

getting stuff through the mail, or we also have fax machines, too. 

So I will send—this seems to be the rule, not the exception for the 

Department of Justice. I will send you detailed questions on that, 

but let me ask you a couple of questions. 

Mr. Wray, perhaps you can answer this. What actions has the 

Department of Justice taken with respect to investigating and possibly prosecuting criminal conduct by American civilians at the Abu 

Ghraib prison in Iraq or at any of the other places where the administration has evidence, and the administration does have evidence, of other torture that has not been made public yet? What 

actions have you taken? 

Mr. WRAY. Senator Leahy, my principal awareness of the abuse 

that you are describing, that you are referring to, is through the 

news media, and like you and like so many others, obviously I deplore any mistreatment— 

Senator LEAHY. Sure. I know you do, and I don’t question that. 

Mr. WRAY. I just think it is— 

Senator LEAHY. What steps have you taken since you heard 

about it? 

Mr. WRAY. Since we have heard about it, we have attempted to 

determine whether—what sort of Federal jurisdictional requirements apply to the Justice Department as opposed to the Department of Defense. As you may know, there is a fairly intricate 

framework of statutes and MOUs that apply to dividing up responsibility and jurisdiction between— 

Senator LEAHY. Would the Military Extraterritorial Jurisdiction 

Act of 2000, would that not give you jurisdiction? 

Mr. WRAY. The Military Extraterritorial Jurisdiction Act, or 

MEJA, applies to certain kinds of offenses and provides us with jurisdiction over certain kinds of people when evidence has been referred to us of a possible Federal crime. In the instance that we 

are discussing right now, I gather that the Department of Defense 

15

has been conducting an investigation for some time and the normal 

practice would be for, as the Department of Defense is conducting 

an investigation—which I have reason to believe and every confidence that they are conducting thoroughly and fairly—if they 

come across evidence that a Federal crime may have been committed over which we would have jurisdiction and they would not, 

the normal practice would be for them to refer that matter or report that matter to us. 

I am not aware of any referral from the Department of Defense 

to the Justice Department or the FBI relating to these matters. 

Senator LEAHY. I want to make sure I understand that. Even 

though you would have jurisdiction, for example, over criminal acts 

of civilians who are accompanying U.S. Armed Forces, the Department of Justice waits for the Department of Defense to determine 

whether you have jurisdiction and something should be referred? 

Are you doing any proactive investigation of your own? That is basically my question. 

Mr. WRAY. We have begun reviewing the information that we 

have received. As I said, there has been a longstanding Defense 

Department investigation, and as a professional investigator and 

prosecutor myself, when there is an ongoing longstanding investigation, I have always believed that it is very important to proceed 

carefully so that we don’t disrupt the existing investigation to 

which they clearly have devoted a significant amount of attention 

and time. 

And so while I am not suggesting that we should sit still or anything like that, I am suggesting that because there has been, in 

this instance, a longstanding investigation by another agency, consistent with our usual practice, even in matters of this significance, 

we need to proceed very carefully so that we don’t disrupt their investigation. 

Senator LEAHY. Do you think there is any possibility the Department of Justice could keep the Chairman, at least, and following 

the procedure of certainly the 30 years I have been here, the Chairman and the Ranking Member apprised of your proceedings? 

Mr. WRAY. Consistent with whatever professional obligations and 

legal and ethical obligations we have, I think it is certainly appropriate that we work closely with the Committee in its oversight responsibility. 

Senator LEAHY. That would be a welcome change. 

My other question is, Mr. Wray, you said that the Department 

should be able to prosecute a person for training at a terrorist 

camp to become a sleeper agent on the theory that the person, and 

I believe I am restating this, the person gave his own services as 

personnel to the terrorist organization. 

Why couldn’t you just simply use the conspiracy laws that have 

been on the books for decades? You are a prosecutor. I was a prosecutor. I know my experience as a prosecutor was always to use 

something that had been on the books for some time because you 

have built up stare decisis and you are less apt to make a mistake. 

Why not just use those conspiracy laws? 

Mr. WRAY. We do often charge and use the conspiracy provisions, 

both separately in Title 18 and in the material support statutes 

themselves. However, as you know from your prior experience, 

16

sometimes you get into issues with the court and the defense about 

whether you have got a single conspiracy or multiple conspiracies. 

There may be disputes or evidentiary problems over whether or not 

the scope of the agreement between our proposed defendant and 

his co-conspirators is over the same objective. That can get complicated. 

We prefer to be able to charge material support because, frankly, 

when we don’t have the problems that Mr. Bryant and I have gone 

through, it is actually a more user-friendly statute for the kinds of 

scenarios that we are coming across. These terrorist training camps 

churn out huge numbers of people who are often going in different 

directions for different plots, and so sometimes that makes—your 

question is a good one, but sometimes that is, for prosecutorial consideration, it makes using that theory more complicated than it 

might at first blush appear. 

Senator LEAHY. Thank you. Thank you, Mr. Chairman. I will 

have other questions. 

Chairman HATCH. Thank you, Senator Leahy. 

We will turn to Senator Craig. 

Senator CRAIG. Mr. Chairman, thank you very much. I might say 

to the Ranking Member, I had the opportunity to have dinner the 

other night with the Attorney General. He grows increasingly robust and strong and I would guess there would be a time when he 

would want to come before the Committee again. But he sends his 

high regards. 

Senator LEAHY. I am sure he does. After a year and a half, I 

would hope that he would be strong enough to come up here for 

more than a couple hours. 

Chairman HATCH. I don’t blame anybody for not wanting to come 

before this Committee. 

[Laughter.] 

Senator LEAHY. He probably, having been a member of this Committee for a number of years and seeing how we used to have his 

predecessor up here almost every week, he probably wants to make 

sure that doesn’t happen to him. 

Senator CRAIG. In other words, you are suggesting he knows better? Well, anyway— 

Senator LEAHY. He knows how he treated her and he probably 

doesn’t want the same treatment. 

Senator CRAIG. Let me turn to the gentlemen on the panel, and 

thank you for being here today. I, like all of us on this Committee, 

feel that oversight and extensive oversight on the PATRIOT Act is 

necessary and appropriate and will continue to be so as we move 

toward the reauthorization of it. 

One of the reasons the oversight is important and one of the reasons most of us are extremely concerned about the way it is being 

administered, I think, is reflective of the circumstance and situation and the tragedy oftentimes that occurs under given circumstances. We are now faced with what appears to be one coming 

out of Iraq. Man’s inhumanity to man simply goes on, tragically 

enough, and if this Committee and others don’t do extensive oversight, under the best of intentions, sometimes structures break 

down and civility breaks down. 

17

But I must tell you that I am pleased you are here, and I am 

also pleased that you are recognizing, as some would not suggest, 

that there may be need to fine-tune the PATRIOT Act. 

In the area of material support, I think we have a case going on 

in Idaho right now, and we will find out how far that can be taken 

under the statute, because I want to make sure that this is an effective law and that if there are areas of ambiguity, as the Ninth 

Circuit might propose, then I am pleased you are willing to come 

before us and say, here are ways to correct it. 

I notice in doing so, at least I hope in doing so, you will not be 

called less than patriotic or less than diligent in your job, because 

I am one who believes the PATRIOT Act is a necessary law, and 

I support it. But now I am being accused of being less than patriotic when I propose changes to it. So I am glad to see the administration coming forward and proposing changes, also. 

It is necessary and important. This is work in progress. We have 

got to get it right, and I think we will, because the end result in 

getting it right is making sure that this country is a safer place for 

all of us, and, at the same time, that we are not willing to allow 

the environment of terrorism in this country to take away from us 

our civil liberties. 

That is a fine line that we are now walking, and I am extremely 

pleased, Dan, that you would come forward to suggest that there 

are areas that we need to look at that might disallow what I sometimes call the most dysfunctional circuit in the nation from misjudging the intent of the Act. If they misjudge it or if they view 

it in a certain way, others may do the same, and if that is the case 

and if we can clarify that, then let us do that. 

You are proposing changes. The President has proposed changes. 

And I must tell you, I am proposing some changes. Other colleagues on this Committee are proposing changes, as well. And 

that is why, Mr. Chairman, it is so darned important that we do 

a very thorough oversight process as we move toward reauthorization. 

I want to vote again for the PATRIOT Act, but I want to vote 

for it again knowing that we have corrected some areas, adjusted 

some areas, that it is a finer-tuned law that can get at the heart 

of any terrorist activity or organized effort in this country to perpetrate wrongdoing against the American citizens. 

So I thank you gentlemen for being here today. I have no specific 

questions. I do appreciate your dedication and your successes. I 

think we are a safer country today, although some would allege 

that is not the case, because of your diligence and because of this 

law. So let us move forward, Mr. Chairman, with a very thorough 

oversight prior to our effort to reauthorize. Thank you for being 

here. 

Chairman HATCH. Thank you, Senator Craig. 

Senator Feingold? 

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

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. Thank you, Mr. Chairman. Thank you for 

holding this hearing. 

18

Let me first just compliment Senator Craig for his leadership 

and bipartisanship in trying to do what he just said, getting this 

thing right. It is a difficult environment in which to raise these 

issues, but I am extremely proud of his courage in indicating to the 

American people that this is about Republicans and Democrats together, particularly on this Committee, working together to make 

the changes that need to be made to make the PATRIOT Act legislation that Americans can be comfortable with, so I thank you for 

that. 

Mr. Chairman, I was pleased when you announced last fall that 

you would hold a series of oversight hearings on the administration’s anti-terrorism efforts. I am glad that the Committee is resuming this task. I certainly hope we will have the additional hearings that you planned soon, including, as the Ranking Member indicated, a chance to discuss these issues with the Attorney General, who has not appeared before the Committee in over a year. 

Mr. Chairman, as you know, the President recently made a number of speeches calling on Congress to renew the PATRIOT Act 

now. Most of the PATRIOT Act is, of course, already permanent 

law. Of the over 150 provisions in the law, only 16 provisions are 

due to expire at the end of 2005. There is, I think, a public misconception that the whole bill is set to expire. That simply isn’t 

true. 

The sunset provision was a recognition by Congress in October 

2001 that it was acting without the kind of deliberation that such 

an important piece of legislation would normally receive, especially 

in the area of surveillance. Significant changes in the law were enacted without the kind of close scrutiny that provisions that touch 

on delicate constitutional balances deserve. 

The sunset was an important and crucial provision. It would 

allow Congress to revisit some of the more controversial provisions 

with more care and with more information on which to base its 

judgment. 

Mr. Chairman, between now and December 2005, I urge you to 

hold hearings on how the administration has used the powers 

granted by the PATRIOT Act. I also urge you to hold hearings on 

reasonable proposals to address concerns raised by the PATRIOT 

Act, such as the SAFE Act, which Senator Craig and I both have 

cosponsored and which has been introduced by Senator Durbin, as 

well, and which I strongly support. 

Mr. Bryant, Mr. Wray, as you know, in January, a Federal judge 

in California ruled that a provision of the PATRIOT Act criminalizing the provision of expert advice and assistance to a terrorist organization was vague and, therefore, unconstitutional. The judge 

found that the term ‘‘expert advice and assistance’’ could be interpreted to include unequivocally pure speech and advocacy protected 

by the First Amendment. The judge found that the PATRIOT Act 

bans all expert advice and assistance and places no limit on the 

type of expert advice and assistant that is banned. 

The Justice Department has argued to the court that the PATRIOT Act does not criminalize advocacy, association, or other activities protected by the First Amendment. Does the Department 

believe that providing peacemaking and conflict resolution advice is 

barred by the PATRIOT Act, and what other kinds of advocacy or 

19

associational activity does the Department believe is not barred by 

the PATRIOT Act? Mr. Wray? 

Mr. WRAY. Senator, I think the Department has tried to construe 

and apply the provisions at issue judiciously. I wouldn’t want to—

I don’t think I am in a position to sort of sit here and describe 

every form of activity that I think would not be covered. I do believe that Congress, I think intended, and we would all want for 

the material support statutes to reach every form of support to terrorism that does not run afoul of constitutional limitations. 

In other words, I would think that the appropriate objective of 

Congress—and we believe it is reflected in the statute, but obviously the Ninth Circuit disagreed—is to reach all forms of support 

other than those protected by the Constitution. 

Senator FEINGOLD. It sounds like you would not want to bring 

into the sweep of that, then, peacemaking and conflict resolution 

advice, would you? 

Mr. WRAY. Well, the reason I am hesitating is the following. You 

may be familiar with, and I want to be careful about how far I go 

into this just because it is a pending case, but you may be familiar 

with the case in the Southern District of New York, the Sattar

case. I am not sure how you pronounce the defendant’s last name, 

but it involves Lynne Stewart and others and relates to their assistance to the so-called ‘‘Blind Sheikh’’. And underlying the allegations in that case, as described in, I believe, public record information is the Sheikh’s imposition and then withdrawal of support for 

a cease fire. 

So that may not be—I assume that is not the kind of peacemaking that you are describing, but you could see why that, under 

certain definitions, that could be a kind of peacemaking in the 

sense that he says to his followers, ‘‘stop attacking,’’ and then withdraws his support, which in effect says ‘‘resume attacking.’’ So in 

that situation, we would— 

Senator FEINGOLD. I appreciate that answer. I think it is a little 

different than what I was referring to, but I look forward to further 

refining this issue. 

Mr. WRAY. I don’t know if Mr. Bryant may have a— 

Senator FEINGOLD. Mr. Bryant, do you have something to add on 

this? 

Mr. BRYANT. Only that, as Chris has indicated, we respectfully 

disagree with the Central District’s finding that the term ‘‘expert 

advice or assistance’’ is unconstitutionally vague. We think it is a 

term that has a common meaning. Certainly the notion of expertise 

is well known within the law and outside of the law. Federal Rule 

of Evidence 702 provides a useful definition which involves defining 

expert testimony as testimony based on scientific, technical, or 

other specialized knowledge. 

So I think the answer to your question would turn on whether 

or not the nature of the assistance provided was assistance based 

on scientific, technical, or other specialized knowledge, which then 

assisted the foreign terrorist organization in question. 

Senator FEINGOLD. Mr. Bryant, last September, after much public outcry about the potential abuse of Section 215, the business 

records provision of the PATRIOT Act, the Department disclosed 

that it had not yet used this provision. But since that time, DepartVerDate 0ct 09 2002 11:34 Jun 11, 2008 Jkt 095100 PO 00000 Frm 00023 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\95100.TXT SJUD1 PsN: CMORC
20

ment officials have been cagey about whether they have used this 

section since September. 

In March, I sent a letter to the Attorney General asking to clarify whether Section 215 has been used since September 18, 2003. 

Mr. Bryant, I have not received a response to that letter. Can you 

tell me whether the Department has used Section 215 of the PATRIOT Act since September 18, 2003, and will you make sure that 

my questions about the use of these provisions are answered properly? 

Mr. BRYANT. I will do what I can with respect to seeing that you 

receive an answer to your letter, Senator. I am not in a position 

to tell you whether or not that section has been used since September when the number was declassified because I don’t know the 

number. Moreover, as you know, it is a classified number. The 

number itself is classified unless unclassified, so we would need to 

discuss it in a different setting. 

Senator FEINGOLD. So when the statement was made to the Committee previously that it had not been used, that fact had to be declassified, is that correct? 

Mr. BRYANT. That is correct. 

Senator FEINGOLD. So you have to go through that process again? 

Mr. BRYANT. That is correct. 

Senator FEINGOLD. Well, I would urge you to do so quickly in 

light of my request, and in light of the fact that you gave this information before, I think it would only make sense that it would be 

declassified again so that we can know what is happening with this 

provision. 

Mr. Chairman, is my time up on this round? 

Chairman HATCH. Yes, but I am not going to go another round, 

so if you have— 

Senator FEINGOLD. Could I ask one more question, if I may? 

Chairman HATCH. Sure. 

Senator FEINGOLD. I thank you, Mr. Chairman. 

Mr. Wray, prior to the PATRIOT Act, the legal standards for delayed notification or ‘‘sneak and peek’’ search warrants were set by 

the courts. Section 213 of the PATRIOT Act has been characterized 

of the Second Circuit decisions on the delayed notification warrants. Section 213 allows sneak and peek searches where the court 

finds reasonable cause to believe that notification would have certain adverse results. Adverse results are defined to include not only 

instances where notification would threaten human life or the destruction of evidence, but also any situation that might otherwise, 

quote, ‘‘seriously jeopardize an investigation or unduly delay a 

trial.’’ 

I am concerned about this catch-all provision for delayed notification warrants. I am concerned that it could swallow the rule, because notification of almost any search warrant arguably jeopardizes the criminal investigation. Last October, the Department reported that as of April 1, 2003, it had sought and courts had ordered delayed notice warrants 47 times. That was over a year ago 

and I am sure that the number is much higher now. 

How many times has the Department sought and received authorization to execute a delayed notification search since enactment 

of the PATRIOT Act, and obviously you can provide this in writing 

21

if you prefer, but if you could give us a ballpark figure now of the 

number of such searches since April 1, 2003, it would be very useful. 

Mr. WRAY. Senator Feingold, I don’t have an updated number for 

you. The 47 number was the number that I had the last time I collected the number, so I wouldn’t want to try to guesstimate here 

just because I think I would be doing you and the Committee a disservice by doing so. But I would be happy to take a look at that 

and see what information we can provide to supplement my testimony on the number issue. 

I do think it is important to point out that a court—not the government unilaterally—decides not only whether or not there is 

probable cause for the warrant in the first place, but also whether 

or not it is appropriate to delay notice—not deny notice—but delay 

notice for the various reasons set forth. So a court has to agree and 

accept the government’s reasons for that. We have high faith in the 

integrity and the independence and the good judgment of the 

courts in this country and I think the fact that the 47 times we 

sought delayed-notice approval by a court for a search, the courts 

agreed with and accepted our reasoning in those cases. 

So I certainly take your concern. We try to be very careful and 

judicious in our pursuit of that particular technique, but as you 

know, it has been in the law for a long time and it is a very important tool for us to ensure that, especially as we are acting more and 

more proactively, terrorists aren’t able to be tipped off and essentially jump the gun in particularly critical investigations. 

Senator FEINGOLD. I know I am over my time, but let me just 

say in response that this particular variation on sneak and peek 

has not been in the law for a long time. In fact, Senator Craig and 

I and others have proposed in the SAFE Act that there be a renewal process, that the delayed notice not be indefinite. The only 

way we are going to be able to evaluate with our colleagues whether we are right or you are right or what we should do is by getting 

this information. 

So I am going to urge you to give us this information, and Mr. 

Bryant, as soon as possible. I would just remind you, the President 

of the United States in his State of the Union demanded that these 

provisions be renewed now. For this Committee to be asked to act 

in response to the President’s request without this fundamental information is unreasonable. We need this information at this time. 

So I am making that request as strongly as I can and I would 

appreciate the information as soon as possible so this Committee 

can evaluate it. 

Thank you, Mr. Chairman, for the extra time. 

Chairman HATCH. Thank you, Senator. 

Just one question so we don’t ignore Mr. Bald. I understand that 

the Department of Justice has brought approximately 60 prosecutions involving the material support statute. Can you please explain to us how this statute has changed the handling of terrorism 

investigations at the Bureau, the FBI? 

Mr. BALD. Thank you, Mr. Chairman. The material support statutes provide us the opportunity to get involved and take action earlier in an investigation than we typically would be able to. Some 

of the facilitating actions that we are investigating may fall outside 

22

of other criminal statutes. For example, we may have a particular 

scientist that is providing advice, guidance, or training to terrorists 

on how to weaponize a particular type of biological weapon, that in 

and of itself, the providing of training might not be illegal. However, with the material support statutes, it does allow us to address 

those kinds of very serious weapons of mass destruction terrorist 

support actions that we face. 

So I appreciate your question and I appreciate the Committee’s 

work on the material support statutes. It is a very vital tool for us. 

Chairman HATCH. Thank you. I do encourage you to help us on 

the Committee to understand this as well as we can, because we 

do have some objections to the PATRIOT Act. I haven’t seen any 

really legitimate objections, in other words, where the Act has been 

misused. But we want to get it right when we reauthorize it next 

year and I would like to see that it is done in the best possible way 

we can so that you can continue to use this very, very important 

Act to protect our citizens. I want to compliment each of you for 

doing exactly that. 

Did you have another question, Senator? 

Senator LEAHY. I was just curious. There is one, and I am not 

asking you to talk about an ongoing case, but what prompted my 

attention, there is an article in the paper that the Department is 

using the material support statute to prosecute a Saudi graduate 

student, basically charged, as I understand it, with serving as a 

webmaster, a discussion group moderator. He is not writing anything, but he is the webmaster, and the theory of the prosecution 

seems to be that he helped to create and maintain websites for various Islamic groups that publish content advocating jihad and provided, quote, ‘‘expert advice and assistance’’ to those groups. 

Now, as I say, I don’t want to talk about an ongoing case, but 

what would prevent the Department from using the same theory 

to go after an Internet service provider. They often give technical 

assistance if you want to set up a website. You might want to set 

up a website, ‘‘Tours of the Middle East,’’ for example. They could 

set that up and then as you get into that, people are using the chat 

room or whatever to send things back and forth. Could you not go 

after that, the same theory, could you not go after the Internet 

service provider? Could you go after a repairman who came by to 

work on the computer? 

Mr. WRAY. Senator Leahy, I appreciate your concern, which I 

share, about speaking too precisely about a case that is pending, 

and not only is it pending, but the case in question, as Senator 

Craig knows, is pending in front of a District judge and a jury in 

his State, and out of respect for them, I want to be very careful not 

to do anything— 

Senator LEAHY. I don’t want to go into that. 

Mr. WRAY. Okay. 

Senator LEAHY. That was what prompted my attention, but I am 

just asking, what about my hypothetical? 

Mr. WRAY. Sure. 

Senator LEAHY. Christopher Wray helps set up the ‘‘Tours of the 

Middle East’’ web site and you are the Internet service provider 

and then it is used from then on, or a lot of the use of it is a chat 

room to talk about these various issues. 

23

Mr. WRAY. Again, not speaking about a particular case, but since 

we are talking in general terms, the key to the kinds of scenarios 

that you are alluding to is the intent requirement of the statute. 

So take the repairman that you mentioned, for example. If he 

goes to someone’s house and repairs the guy’s telephone or his computer and it happens that the person whose house he went to is 

one of these sleepers that we were talking about before, but he 

doesn’t know the guy is a sleeper or has no idea that the guy is 

going to be using the phone or the computer for terrorist activity, 

then there would be a significant issue, to say the least, as to his 

intent. 

On the other hand, if the sleeper needed his phone fixed so he 

could communicate with his accomplices and called an associate 

who happens to be a repairman and says, ‘‘You need to come over 

and fix my phone and computer so I can communicate with the 

other Al Qaeda associates with whom I am working,’’ and the guy 

says, ‘‘I will come over and fix the phone to help you do just that,’’ 

then I think we might be in a situation where he was providing 

services to assist in terrorist activity and there would be an intent 

issue that would be satisfied. 

Senator LEAHY. Let me take another step. We put a criminal prohibition in the PATRIOT Act, a prohibition on providing expert advice and assistance. Can that be applied to a lawyer who is representing a designated terrorist group and challenging the group’s 

designation? I understand the Department has given licenses to 

lawyers to represent groups in such challenges, but suppose they 

said, no, we are not going to give a license. They say to the group, 

you are on your own. We are not going to license an attorney for 

you. Would then, if the attorney went and challenged the designation, would that be criminally prescribed? 

Mr. WRAY. Well, obviously, whatever we did in connection with 

a lawyer’s services would have to be done in a manner consistent 

with the Constitution and the rights to effective assistance and 

counsel and so forth that are provided therein. There are, of course, 

instances, including one pending case, in which a lawyer provided 

her services specifically to facilitate, as we allege, a terrorist activity, and that is a pending case in New York right now, so— 

Senator LEAHY. I am well aware of that case. I am trying to stay 

away from that one. 

Mr. WRAY. So I think it depends a lot, again, on the question of 

intent, on exactly what the activity was that the lawyer was engaged in. Certainly, we would not suggest that a lawyer who is, for 

example, defending his client in a terrorism case is in itself providing material support to terrorist activity. 

If you start getting into situations where lawyers are effectively 

like in-house counsel, sort of like the old mob analogies to a terrorist organization, then there might be situations in which the 

statute could be constitutionally applied. 

Senator LEAHY. How do you determine this license? 

Mr. WRAY. I am not in a position to address the licensing issue. 

I would be happy to try to follow up in writing if that would be 

helpful, but— 

Senator LEAHY. You have argued, I am told, that the Department 

charged under 2239B a defendant who may not have intended to 

24

further terrorist activities, just it needs to know that it was a terrorist organization, is that correct? 

Mr. WRAY. I believe the— 

Senator LEAHY. So to use the mob analogy, here comes—the capo 

di capi comes down the road in his car and you put gasoline in it 

because he is low on gasoline, do you get charged? If these are terrorist organizations and you don’t intend to further any of their activities, but you knew it was a terrorist organization and you 

served a meal to them, can you be charged? 

Mr. WRAY. I think the position that we have consistently taken 

is that the defendant must know the identity of the foreign terrorist organization recipient and either one of two things, that the 

recipient of the support was a designated foreign terrorist organization, or that the organization was engaged in violence and terrorist-type activity. 

Senator LEAHY. I have another question, and I may want to follow up on this with you. I will try and do this, but I will go into 

specific cases. Maybe you and I should just have a conversation, because I do know the Idaho case, of course, and New York case and 

I do not want to ask questions here to compromise an ongoing case, 

but I think we should have a further discussion of this, Mr. Wray, 

perhaps privately. 

Thank you, Mr. Chairman. 

Chairman HATCH. Thank you, Senator. 

We appreciate you gentlemen coming today and we appreciate 

the advice that you have given to the Committee and we will try 

to heed it. Thanks so much for being here. 

We welcome our second panel of witnesses. We will first hear 

from David Cole, Professor of Law at the Georgetown University 

Law Center. Mr. Cole has been involved in numerous cases involving the material support provision. 

Following Mr. Cole will be Paul Rosenzweig, the Senior Legal Research Fellow at the Heritage Foundation. Mr. Rosenzweig is an 

adjunct professor of law at George Mason University. 

We want to thank both of you for being with us today and we 

look forward to hearing your testimony and any suggestions you 

can make for us. Mr. Cole? 

STATEMENT OF DAVID COLE, PROFESSOR OF LAW, 

GEORGETOWN UNIVERSITY LAW CENTER, WASHINGTON, D.C. 

Mr. COLE. Thank you, Senator Hatch. Thank you for inviting me 

to testify, and I ask that my written remarks be incorporated into 

the record. 

Chairman HATCH. Without objection, we will put all written remarks into the record as written. 

Mr. COLE. There is no doubt that cutting off funding for terrorist 

activity is an important and legitimate government objective, but 

Congress and the executive have pursued it through unlawful 

means. 

There are, in fact, three statutes that impose penalties on people 

for their associational support of organizations that have been designated as terrorists. One is 2339B that is the principal focus of 

this hearing. 

25

Another is IEEPA, the International Emergency Economic Powers Act, which allows the government to designate anyone—citizen, 

foreign national, U.S. corporation, nonprofit, or foreign organization—as a terrorist using a definition that is nowhere provided in 

any statute or any regulation and then make it a crime for people 

to support that individual or group. 

And the Immigration Act, as amended by the PATRIOT Act, authorizes the government to deport foreign nationals for providing 

support, whether or not it is wholly innocent or not, to any organization that the Attorney General and the Secretary of State have 

designated as terrorists under a definition so broad that it would 

literally include the Department of Homeland Security. That is 

how broad the definition is. 

There are three problems with these statutes, generically speaking. First, they impose guilt by association. They penalize not material support for terrorist activity. That is 2339A. There is no 

problem with that statute. But instead, they penalize support for 

blacklisted organizations, organizations that have been labeled terrorist regardless of whether the support has anything whatsoever 

to do with the terrorist activity of that group. 

So, for example, in the case I am litigating in California, the Humanitarian Law Project, the government has maintained that our 

client, who is providing—was providing human rights advocacy 

training to a group in Turkey that represents the Kurds to encourage it to pursue its means through lawful, nonviolent means, is 

covered by this statute and would be prosecutable if they continued 

to urge this group to stop engaging in terrorism and to engage in 

lawful, nonviolent means. 

Second, the statute is vague and over-broad. It would include the 

person who gives gas to a person who—knowing that the person is 

a leader of a foreign terrorist organization. It would, as a Federal 

judge in Miami recently wrote, it would include a cab driver who 

gave a ride to the leader of a foreign terrorist organization who was 

here to testify at the U.N. All the government would have to prove 

is that the cab driver knew that the person was a leader of this 

terrorist organization and that the organization was designated. 

There would be no requirement that the cab driver’s ride in any 

way facilitated any kind of criminal activity. 

Third, these statutes afford the executive branch unfettered discretion in labeling political groups as terrorist groups. They either 

provide no review of the labeling process or meaningless review. 

Under the International Emergency Economic Powers Act, as I referred to before, there is literally no definition of what a specially 

designated terrorist is. 

Yet President Clinton named a U.S. citizen, Mohammed Salah, 

a specially designated terrorist. That means that it is now a crime 

for anyone to provide Mr. Salah with any support whatsoever, 

whether it be a piece of bread, whether it be a newspaper, whether 

it be medical services, whether it be legal services. The statute 

makes it a crime to provide support to him in any way, shape, or 

form. He is essentially subject to internal banishment, and if this 

were enforced literally, he would starve to death. 

Yet he has never been provided a hearing. There has been no 

grand jury. There is no jury trial whatsoever. And there is no defiVerDate 0ct 09 2002 11:34 Jun 11, 2008 Jkt 095100 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\95100.TXT SJUD1 PsN: CMORC
26

nition of the label that President Clinton affixed to him, specially 

designated terrorist. I submit that that is a statute which is written far too broadly to deal with the legitimate objective of cutting 

off support for terrorist activity. 

We have seen this kind of government response before. In the 

Cold War, we were concerned about a foreign organization, the 

Communist Party, that had illegal ends, that Congress found engaged in terrorist means to further those ends. And the argument 

was, we need to cut off all support to that group and we need to 

facilitate investigation of communists whether or not they are supporting the illegal activities of the group. 

The Supreme Court accepted the factual assertion that the Communist Party engaged in illegal ends, used terrorist means to further those ends. But it nonetheless held that it was unconstitutional to punish someone for support or membership of that group, 

the Communist Party, without proof of specific intent to further the 

terrorist activity or the illegal activity of the Communist Party, and 

it held that in a series of cases. 

Section 2239B, if construed not to require that kind of specific intent to further the terrorist activity of the group, imposes guilt by 

association in violation of the First Amendment and in violation of 

the Fifth Amendment. Thank you very much. 

Chairman HATCH. Thank you. We appreciate having you here. 

[The prepared statement of Mr. Cole appears as a submission for 

the record.] 

Chairman HATCH. Mr. Rosenzweig, we will take your testimony. 

STATEMENT OF PAUL ROSENZWEIG, SENIOR LEGAL RESEARCH FELLOW, CENTER FOR LEGAL AND JUDICIAL STUDIES, THE HERITAGE FOUNDATION, WASHINGTON, D.C. 

Mr. ROSENZWEIG. Thank you very much, Mr. Chairman, members of the Committee. Thank you very much for inviting me to 

come to be with you today. 

I join with everybody else who has appeared today in agreeing 

that thoughtful consideration of the provisions of the PATRIOT Act 

is an important and ongoing obligation of this Committee, and as 

the Act comes up for reenactment next year, it will no doubt occupy 

far more of your time. 

I think, also, that it is important to note that there seems almost 

uniform agreement as to some aspects of the material support provisions that are the immediate subject of your discussion amongst 

all the panelists, from the Department and Professor Cole and I, 

which is that the key, or the single most significant way in which 

we can cabin the potential for prosecutorial abuse, which there is 

a real potential in any system of laws, the key is proper construction of the scienter requirements. 

I agree, by and large, with the Ninth Circuit’s construction of the 

statute requiring some showing of specificity, some showing of specific intent to actively support an organization, knowing either the 

organization has been designated by the executive branch as a terrorist organization, or knowing the true nature of the conduct 

which the organization is engaged in. I think we could all agree 

that the knowing support in advancing terrorist activity is wrongful conduct that can and should be punishable. 

27

Where I think the courts in the Ninth Circuit and the District 

Court in California have gone slightly off the rails is in misusing 

the vagueness doctrine where what I think they are really talking 

about, or what they ought to have been talking about is the question of over-breadth. 

There is, in my judgment, nothing vague in the statutory terms 

used by this Congress. It may prove necessary for you to clarify 

them if the Ninth Circuit decisions become more widely adopted, 

but verbs like ‘‘to train,’’ as in training, are commonly used in all 

sorts of provisions. We use ‘‘cell,’’ we use ‘‘pollute,’’ we use ‘‘harass.’’ 

All of them are simple verbs of conduct addressing particular 

things that an individual is engaged in and are commonly understood by those natural meanings. If the verb ‘‘to train’’ and ‘‘training,’’ its related cognate, are unclear and vague, then so, too, is 

selling drugs. So, too, is polluting, and I think that that is wrong. 

Similarly for personnel. If the idea of a personnel is vague, then 

the Office of Personnel Management doesn’t know what it is doing 

in our executive branch. It is clearly intended to encompass not 

independent advocacy, but the provision so employee-type services, 

agency relationship under somebody’s direction and control. I have 

similar reservations about the understanding of expert advice given 

by this Central District of California. 

What is really at issue here, however, is over-breadth, that is, 

the potential application of these clear terms to protected core First 

Amendment or Sixth Amendment activity, and I will answer your 

question, Senator Leahy. I would be quite confident and would urge 

a court that if the Department of Justice were to try and deny a 

license and thereby deny somebody their attorney, that interpretation of the material support provisions would be, as applied in that 

particular instance, unconstitutional and over-broad, and I would 

urge that position on any court in the land. 

I think what we need to talk about here, or where the courts 

have gone wrong, is whether or not over-breadth challenges should 

be made on a complete facial basis, thereby invalidating an entire 

statute and all of its potential uses, including the core uses that 

everybody would seem to agree are appropriate uses, or whether or 

not those over-breadth challenges should come as applied in individual cases. 

If the Department of Justice were to go crazy and seek to prevent 

people from having lawyers, or, as Senator Feingold mentioned, 

seek to prosecute somebody for giving legitimate training in peace 

advocacy to an organization, that is right at the core of your First 

Amendment concerns. I would assume that, first off, it would never 

get out of the Department of Justice, but if it did, that the District 

courts would rightly shut it down. But that is not a reason, in my 

judgment to invalidate the entire statute as facially vague or overbroad and thereby disable the completely legitimate and appropriate uses of the statute at the core that everybody agrees are the 

right things to be prosecuted. 

I see my time is up, so I will be happy to answer your questions. 

Chairman HATCH. Thank you so much. 

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

28

Chairman HATCH. Professor Cole, I have read your statement 

and I find it intriguing. It is an interesting and very well thought 

out statement. I don’t agree with it all, but I am open to some of 

the suggestions you make. 

You take the position that the current material support statutes 

unwisely and unconstitutionally, that this statute unwisely and unconstitutionally penalizes innocent association activity. What I am 

going to challenge you and Mr. Rosenzweig to do for us, because 

we are going to rewrite this bill next year and we may reauthorize, 

I think, almost all of it, but this is a particularly important section. 

What I would like you to help us to decide is where we draw the 

line between innocent association and culpable conduct. This is important that you help us with this, and we are open to your suggestions. I want them to be valid suggestions and I would expect no 

less from you. 

Now, I will ask both you and Mr. Rosenzweig to provide us for 

the record a marked-up version of the current statute with your 

suggested changes and, of course, your rationale for making those 

changes. That would be very helpful to the Committee. I think we 

would love to have you do that, if you would. 

Senator LEAHY. Lucky guys. 

Chairman HATCH. What? 

Senator LEAHY. I said, lucky guys. 

Mr. COLE. Could I address that orally, just very briefly? 

Chairman HATCH. Well, you have taken a great interest in this, 

as I do and as many others do, and I think it would be very helpful 

to us if, with your wisdom, you could give us some assistance here, 

so sure. 

Mr. COLE. I think that there is a way to solve the problem and 

that is essentially to impose a scienter requirement, as Mr. 

Rosenzweig has suggested, but a different scienter requirement 

from the one that he suggests. Mainly, the scienter requirement 

that should be imposed is the one that the Supreme Court said is 

constitutionally required with respect to all the Communist Party 

cases, and that is that you can penalize someone for supporting a 

terrorist organization if you show that his purpose in doing so was 

to further its terrorist activities. 

But if you show that his purpose in doing so was to further its 

lawful activities or to discourage its terrorist activities, you cannot 

punish that person. In fact, that is the line that Congress itself 

thought it was adopting in the PATRIOT Act when it adopted expert advice and assistance. 

Chairman HATCH. I would be very interested in getting your suggestions on that. 

Mr. COLE. But the way Congress—if you look in my testimony 

on page 12, I quote the House report and the section-by-section 

analysis of the PATRIOT Act that was offered in the Senate, both 

of which say that expert advice or assistance would be a crime only 

if it is provided knowing or intending that the assistance will be 

used in preparation for or in carrying out any Federal terrorism offense. 

That was Congress’s understanding. The problem is, the drafters 

wrote it—the drafters, the Justice Department—wrote it more 

broadly so that it includes not only supporting—providing expert 

29

assistance and knowing that it is going to further a terrorist expense, but also any expert advice or assistance provided to any organization that has been labeled, even if that expert advice or assistance is designed to discourage terrorism, as is the case in— 

Chairman HATCH. The way for somebody to interpret what you 

are suggesting here, and what your testimony seems to suggest to 

me, as well, is that Congress can avoid vagueness issues by merely 

listing the crimes that we intend to prohibit. Now, that solution 

itself would concern me as it would, I think, be nearly impossible 

to anticipate the myriad ways that terrorists could receive material 

support. Furthermore, I think it may very well give the terrorists 

a road map of how to comply with the letter of the law and still 

achieving their goals. 

So again, I am not confronting you. I am saying, help us. Help 

us with this so that we can accomplish our goals to protect the 

American people but not hamstring law enforcement so much, overly hamstring them to the point where we can’t prevent the terrorist 

activities that are about to occur. 

Mr. Rosenzweig, I found your statement particularly persuasive 

with regard to the term ‘‘personnel,’’ that the term ‘‘personnel’’ was 

not unconstitutionally vague because it can be easily defined by 

just looking in the dictionary. In fact, as you note, the term has 

been used in a variety of other statutory contexts. 

Would you please tell the Committee what other contexts, if you 

can right off the top of your head, what other areas that term has 

been used and how long these statutes have been on the books, and 

as far as you know, have any of those other statutes that use the 

term ‘‘personnel’’ been determined to be unconstitutionally vague? 

Mr. ROSENZWEIG. Mr. Chairman, I listed several instances in 

which the term ‘‘personnel’’ was used on page nine of my testimony. There were one, two, three, four, five, six, seven different instances, all in title 18— 

Chairman HATCH. Have any of those been declared unconstitutional? 

Mr. ROSENZWEIG. I have found—I was once advised never to say 

never, but I have found no such instances. I confess I do not know 

how long any of those statutes have been on the books. I do hazard 

the guess that all of them predate the AEDPA in 1996, though I 

am not even 100 percent certain of that. 

Chairman HATCH. Okay. Again, I am going to challenge you, as 

well, to give us legitimate suggestions as to how we might improve 

this bill, because my goal here is not to uphold the PATRIOT Act 

regardless of what anybody says. We want to improve it if we can. 

No statute, to my knowledge, is absolutely perfect unless it is a 

one-liner, maybe. I might be able to come up with some that are 

perfect, but there aren’t very many that are because we have got 

to get too many people to agree in this 535-dual-member body. 

Mr. Rosenzweig, let me ask you this. Mr. Bryant has suggested 

in his testimony that we consider clarifying the definitions of the 

terms ‘‘personnel,’’ ‘‘training,’’ ‘‘expert advice or assistance.’’ We 

would also like to have both of your advice, if you can, on how we 

might better define them. You have heard Mr. Bryant’s testimony 

of how he would further redefine. We would like you to look at that 

testimony and give us your best suggestions as to how we might 

30

further improve on the language of the PATRIOT Act in these 

areas. 

Now, they made the case that they did not think that the Ninth 

Circuit is right or that the District court out there is right in these 

cases. But they also have indicated a willingness to consider 

stronger language. But where the balk, and I think rightly so, is 

are we going to put language in that makes it even more difficult 

to interdict and stop the terrorists, for instance, the 310 that we 

have already stopped and 179 that have been convicted. If we are 

going to make it more difficult to accomplish those very important 

goals, then let us find a way of doing it within the law and within 

the definitions of the law that hopefully can be improved through 

your suggestions to the Committee. 

I am offering to both of you and other, for those who are watching, other constitutional experts, as well, to help us to write the 

provisions so that they are written better. Nobody here—I believe 

the PATRIOT Act has done a terrific job for this country and I 

think most people do believe that and it is absolutely true. But that 

doesn’t mean it is perfect. It doesn’t mean we can’t perfect it. It 

doesn’t mean we can’t make it better. 

So we are looking forward to reading whatever you two submit 

to the Committee and others, as well. We challenge all constitutional experts to help us to understand this better, how we might 

better do our job here in the Senate Judiciary Committee. 

I will turn to Senator Leahy at this time. 

Senator LEAHY. Thank you. He has not enthusiastically supported the sunset provisions that Dick Armey and I put in. 

Chairman HATCH. I don’t support that. 

Senator LEAHY. Interesting philosophical coalition, if you don’t 

have one. 

Chairman HATCH. It shows the two extremes can get together. 

[Laughter.] 

Senator LEAHY. I do appreciate the testimony I have heard here. 

Mr. Rosenzweig, I absolutely agree with you on the question of 

counsel. I can’t—I remember different times when I was a prosecutor, we had some heinous crime and somebody said, ‘‘Isn’t it 

awful that John Smith or Mary Jones is defending that terrible 

person,’’ and I said, ‘‘Why? How can you possibly say that?’’ I am 

doing my job to prosecute the terrible person and I hope I will get 

a conviction. But I would hate to think that they didn’t have strong 

defense because the next day it may be me, or it may be you or 

anybody else. 

I know from your own writings and your own statements that 

you have always been consistent in that and I applaud you for it. 

It doesn’t mean, and again, as defense counsel, we like the people 

or support the people or agree with the people that are being defended, but we are going to protect all of us in doing that. 

Mr. ROSENZWEIG. I certainly hope that is the case. One of my 

current clients is doing nine life terms for nine serial—nine alleged—well, he has been convicted—nine murders. His case is on 

appeal. So I wouldn’t want it to be the case that my representation 

of him necessarily affiliated me with his acts and I don’t think that 

is a fair thing to say. 

31

Senator LEAHY. No, and as I said, I know the more heinous the 

crime that I prosecuted, especially if there is assigned counsel, the 

more I would urge the court to assign very good counsel. For one 

thing, it made it not only a better trial but you didn’t have to worry 

about, if you did get a conviction, it getting overturned based on 

incompetent counsel. With you, they would not have incompetent 

counsel. 

Professor Cole, I am delighted to see somebody here from my 

alma mater, Georgetown, and I appreciate your willingness, and 

both Mr. Rosenzweig’s willingness, to give your section-by-section 

comments. 

In his written testimony, Assistant Attorney General Bryant proposed several amendments of the material support laws, including 

expanding the list of predicate offenses. He wants to include all 

Federal crimes of terrorism. He wants to specify that material support can include both tangible and intangible property or services. 

Do you have a comment on those proposals? 

Mr. COLE. Well, with respect to the first, it depends on what ‘‘all 

Federal terrorism offenses’’ mean. I don’t generally have a problem 

with Section 2339A because it requires proof that someone provided material support to a specific terrorist act and there is no 

constitutional right to provide support of any kind to a terrorist 

act. It, of course, depends on what you mean by Federal terrorism 

offenses, because one of the statutes that the Justice Department 

refers to as a Federal terrorism offense is, of course, 2239B, which 

permits convictions without any connection to any kind of terrorist 

act. So if it included 2339B, it would obviously cause problems. But 

with respect to others, I don’t think that would be a problem. 

With respect to adding tangible and intangible property or services to the definition of material support, the Justice Department 

has just lost cases involving personnel, involving training, and involving expert advice or assistance. Now they want to expand it 

further to something that includes intangible services. If expert advice and assistance, personnel, and training are too vague and 

over-broad, intangible—I don’t even know what intangible services 

are. 

So I think that would raise many of the same concerns. It would 

presumably—it could certainly conceivably include all sorts of 

speech, just as personnel, training, and expert advice or assistance 

do, and, therefore, raise very serious First Amendment concerns, as 

outlined in my testimony. 

Senator LEAHY. Mr. Rosenzweig? 

Mr. ROSENZWEIG. While I think I disagree with Professor Cole 

about training, personnel, and expert advice, and I think I probably 

would disagree about tangible property—I think I know what that 

means and I think that that is pretty clearly defined—I, too, was 

struck by the idea of an intangible service, and perhaps that was 

just a drafting error and they didn’t mean it. I can’t even think of 

what that is, and if I can’t think of what that is, then it may very 

well be a bit vague, though I am obviously not the test. 

Senator LEAHY. I am glad to hear that, because I couldn’t figure 

out what it meant, either, and I thought I would go to guys like 

you who are far more knowledgeable to see what you thought. 

32

Mr. ROSENZWEIG. We do have a concept of intangible property, 

I mean, tangible and intangible property, but intangible services is 

new. 

Senator LEAHY. Let me ask just one more question, and I apologize to Senator Craig for taking time on this, but the government 

has argued that money is fungible and so it should be able to cut 

off all funds to any group that engages in terrorism, whether the 

group also supports vital social services. What is wrong with that 

rationale? 

Mr. COLE. Well, this is— 

Senator LEAHY. Is there any constitutional difference between a 

prohibition on providing funds to a terrorist organization and a 

prohibition on providing other sorts of physical assets and services? 

Mr. COLE. This is the government’s principal argument. Money 

is fungible and, therefore, the cab driver who gives the ride to the 

leader of the foreign terrorist organization is somehow providing 

some support that even if it doesn’t lead to a terrorist act would 

free up some other individual who otherwise would have given him 

the ride to the U.N., and therefore—and that individual might then 

engage in terrorism and therefore we should be able to criminalize 

the cab driver. 

What is wrong with that is that it goes way too far, and I would 

suggest that we don’t believe— 

Senator LEAHY. Isn’t that a little bit more specific, Professor, 

than the question of money? If I am going to send— 

Mr. COLE. Right. 

Senator LEAHY. —ten thousand dollars to a known terrorist organization because I do like the fact that they also have a school 

lunch program, and I think, gee, that is nice to have the school 

lunch program so here, guys, here is ten grand. Gee, I really hope 

you put it in the school lunch program. Isn’t that a little bit different than the cab driver? 

Mr. COLE. I am not sure that it is. The government certainly argues that it isn’t. That is why they define material support to include not just money but all services, all sorts of personnel, training, and the like. But even with respect to money, I don’t believe 

we as an American people believe that you are personally liable because you have paid money that has then been used by someone 

else. 

I pay taxes, but I don’t think anyone would suggest that because 

my taxes support the U.S. military, I am personally liable for the 

torture inflicted on Iraqi prisoners. We don’t believe that because 

money is fungible, it is unconstitutional for the State to provide 

subsidized transportation and subsidized textbooks to children in 

religious schools. If the argument was money was fungible was accepted, then that would be an establishment of religion. But no, 

that is not an establishment of religion. 

We don’t believe that everyone who donates to the anti-abortion 

group Operation Rescue is personally liable because Operation Rescue has violated criminal laws. Those in Operation Rescue who 

have violated criminal laws are personally liable, but those who 

have made a donation to this organization are not, by virtue of that 

donation, liable. 

33

We don’t believe that every person who donated to President Nixon’s Committee to Re-Elect the President is personally liable for 

the Watergate burglaries. We believe that the people who committed those burglaries and who authorized them and who supported those burglaries are liable, but not every person who made 

a donation to the Committee to Re-Elect the President. 

So I think we have historically drawn a line between people who 

support an organization that happens to engage in illegal activities 

and people who support the illegal activities itself, and I think that 

line is precisely the line that the Supreme Court has held is constitutionally required both by the First Amendment right of association and by the Fifth Amendment requirement of a showing of 

personal guilt. 

Mr. ROSENZWEIG. If I might, because this is, I think, perhaps the 

most difficult question you face and perhaps one where I disagree 

more with Professor Cole than in other areas, because the deepest 

difficulty you face is the question of blended organizations, organizations that serve or purport to serve two purposes, a terrorist purpose and an unrelated humanitarian purpose, and how you deal 

with that. 

I don’t think, frankly, that it is too much of a burden to oblige 

organizations that are blended to split apart when one of the activities engaged in is, ex hypothesi, a support for terrorist activity, and 

that type of activity is far different from the types of things that 

Professor Cole was discussing, affiliation with CREEP. If you gave 

money to President Nixon’s Committee to Re-Elect knowing that 

that money would go to support an organization that was going to 

engage in criminal activity, then you might be liable under some 

broad conspiracy theories of the type you alluded to. 

Most people don’t pay the taxes to America knowing that it is 

going to go to fostering the abuses in Iraq that we all condemn. In 

fact, we assume it won’t. 

So the question for you is, where is the balance, and in that regard, you have to begin with something that doesn’t get mentioned, 

but we know now, at least after the BCRA, that money isn’t 

speech, right? At least in most instances, the giving of money has 

an expressive form, but it is regulable speech in a way that is different from core expressive conduct, and the Supreme Court has 

told us that. 

So I don’t think that it is at all unreasonable for Congress to say, 

if you want to have a humanitarian arm, you have got to make it 

a different humanitarian body and you cannot act in affiliation 

with an existing organization that has been designated lawfully, 

through the processes of the Department of Treasury, as a terrorist 

organization. That doesn’t seem to me a huge burden to impose 

upon the organization to be able to receive the funds. 

Senator LEAHY. Thank you, Mr. Chairman. 

Chairman HATCH. Senator Craig? 

Senator LEAHY. I thank the Senator from Idaho because I know 

he could have asked to have his time at that point. I thought these 

were important questions and I appreciate his usual courtesy. 

Senator CRAIG. Thank you. Gentlemen, thank you, and I appreciate the challenge the Chairman has put before you. I hope you 

will engage in that energetically as we work through this process. 

34

Let me for a moment this morning, Mr. Rosenzweig, turn to you 

because I am frustrated by some of the things you have said, but 

more importantly, some of the things you have written. Let me 

first go to a paragraph in your opening statement before the Committee—I should say your written statement before the Committee. 

Mr. Chairman, I am going to take the luxury of reading it into the 

record. 

‘‘It is a commonplace for those called to testify before Congress 

to condemn the Representatives or Senators before whom’’—to commend, excuse me. 

[Laughter.] 

Senator CRAIG. —‘‘Representatives or Senators’’— 

Chairman HATCH. I was wondering about that. 

[Laughter.] 

Senator CRAIG. —‘‘before whom they appear for their wisdom in 

recognizing the importance of whatever topic is to be discussed, so 

much so that the platitude is often regarded as mere puffery. 

Today, however, when I commend this Committee for its attention 

to the topic at hand, the difficulty of both protecting individual liberty and engaging our intelligence and law enforcement organizations to combat terror, it is no puffery but rather a heartfelt view. 

I have said often since September 11 that the civil liberty/national 

security question is the single most significant domestic legal issue 

facing America today, bar none, and, as is reflected in my testimony today, in my judgment, one of the most important components of a reasonable governmental policy addressing this difficult 

question will be the sustained, thoughtful, nonpartisan attention of 

America’s elected leaders of Congress,’’ and so on. 

Now I have before me your legal memorandum from the Heritage 

Foundation entitled, ‘‘The SAFE Act Will Not Make Us Safer.’’ I 

found it interesting reading. In it, you use words like ‘‘fig leaf,’’ political fig leaf. You go on to talk about pandering to hysteria and 

not being a leader, and then you use a variety of other terms, and 

lastly, you use one here, it says the proposed modifications of the 

PATRIOT Act misses the point completely, so much so that one 

doubts whether any of the authors is a serious student of either 

law enforcement or intelligence activities. I think those could generally be classified as ad hominem attacks. 

Mr. ROSENZWEIG. Well— 

Senator CRAIG. Let me now go to the concluding paragraph of 

this article. These are your words and the words of Ed Meese. ‘‘In 

reviewing our policies and planning for the future, we must be 

guided by the realization that this is not a zero-sum game. We can 

achieve both goals, liberty, and security to an appreciable degree. 

The key is empowering government to do the right things while exercising oversight to prevent the abuse of authority. So long as we 

keep a vibrant eye on police authority, so long as the Federal 

courts remain open, so long as the debate about governmental conduct is a vibrant part of the American dialogue, the risk of excessive encroachment on our fundamental liberties can be avoided.’’ 

I find that all very curious and I find that in phenomenal conflict, and I guess I will just leave it at that. To be accused of being 

less than patriotic, to be accused of pandering to hysteria, to be accused of crafting a political fig leaf, legislative proposals ‘‘based on 

35

fear. . .’’ You are darn right I have fear, fear that somewhere, at 

some time down the road, these statutes might get misused. And 

I would suggest that I am going to err on the side of a person being 

free and unabused rather than having to defend them in court because they were abused and lost their freedoms and their reputations were destroyed. 

So I am going to be easy on you today. I am going to suggest that 

you retitle this, and you call it ‘‘The SAFE Act Will Not Make Us 

Safer.’’ Why don’t you say, ‘‘But the SAFE Act Might Make Us 

Freer’’ ? 

Gentlemen, I thank you for your participation today and look forward to continuing to engage with you as we work through this 

most difficult time in our country. We have got to get it right, but 

I would suggest that it is less than constructive to be involved in 

ad hominem attacks against those of us who work as diligently as 

do you to try to get it right. Thank you, gentlemen. 

Chairman HATCH. You can respond, Mr. Rosenzweig. If I could 

add, I read the same article and I don’t think they were ad 

hominem attacks. I think they were your opinion that, you know, 

every time we give law enforcement tools, if they are abused, they 

can invade civil liberties But I would be interested in your response 

to Senator Craig. 

Senator CRAIG. Certainly. 

Mr. ROSENZWEIG. Thank you very much, Senator Craig, at least 

for reading the paper. I appreciate that. 

Senator CRAIG. You see, I am a fan of the Heritage Foundation. 

I read most of its work. 

Mr. ROSENZWEIG. I do want to make at least one clarification, 

and I believe that this is 100 percent correct. Nothing in anything 

I have ever written has ever suggested that anybody with whom 

I disagree on substantive provisions of the SAFE Act or any other 

provision of the PATRIOT Act is in any way less than patriotic. I 

will eat that paper if you can find that in it. 

As for the characterization of some of the responses to the PATRIOT Act as hysterical, I, and by these I mean the external responses, I stand by that characterization. I have seen ads of hands 

ripping up the Constitution. I have seen ads of teary-eyed whitehaired gentlemen coming out of bookstores saying, ‘‘I don’t want 

the government to read my books.’’ 

I don’t, either, and I am sure you don’t. But in my judgment, 

with respect to the SAFE Act, the provisions, and I know that Senator Durbin is here, too, and I am sure that he will ask me some 

more questions, but with respect to the provisions identified in the 

SAFE Act for correction, I think you are looking in the wrong direction. Those are not the sources of problems. 

The material support provisions are potential sources of problems and we have been talking about them. I call them the way 

I see them, and in my judgment, on the merits, the fears that have 

given rise to the SAFE Act are not founded in a realistic appraisal 

either of the realities of executive and judicial oversight, and legislative, I might add, or in a realistic understanding of the legal 

structures that exist out in the world today. 

If you perceive that as an ad hominem attack, I sincerely regret 

that. It was not our intention in any way to be speaking in an ad 

36

hominem manner. But I do think it is a fair criticism of some who 

support the PATRIOT Act to say that they are basing their legislative proposals to you more in fear than in reality. 

I take great comfort and great heartfelt comfort in the notion 

that you are here and are approaching this in the forthright and 

thoughtful manner that you are. I, with respect, disagree with you 

as to the necessity of the SAFE Act provisions. There were other 

portions of the SAFE Act, by the way, that we did not say were 

unnecessary because I don’t think that they are unnecessary. I 

think the national security letter provision, for example, is one as 

to which I have some concerns about the expanded government 

use, and that is not addressed in the paper. Perhaps it ought to 

have been, and I might rethink that at this point or write another 

paper about it. 

But in candor, I think that some of the provisions of the SAFE 

Act that you have sponsored rest upon premises of abuse that are 

not well founded. 

I will end where I end when I often answer this question. I am 

comfortable with the PATRIOT Act provisions even if the next 

President is John Kerry, and I will stand by that and I will say 

that next year if that is what happens. 

Senator CRAIG. Well, I thank you for those comments. Mr. Chairman, thank you for the indulgence here. I have not yet had a 

chance to get to know you, Paul. I know Ed Meese and value his 

friendship. I will remain diligent in this area no matter what the 

Heritage Foundation might suggest. As I did when I voted for this 

Act, I voted for it with caution, recognizing a time and place and 

a need. At the same time, I said my job is scrutiny, constant oversight to make sure that the powers of government are not abusive. 

I would also suggest that I have a healthy fear of an abusive government, and as a result of that, I am going to err on the side of 

a freer citizenry. Thank you, Mr. Chairman. 

Chairman HATCH. Thank you. Some think we are erring on the 

side of a safer citizen, so as you can see, this debate is a very important debate and I, for one, personally appreciate the ideas of 

others, as I am sure both of you do. 

Senator Durbin, we will turn to you. 

Senator DURBIN. Thanks, Mr. Chairman. I want to thank my colleague for joining me in this effort. We couldn’t be more different 

in terms of our votes on the floor. We are probably at polar ends 

of the spectrum when it comes to the way we vote. But we do come 

together in common cause here, I believe because, as they say, this 

political spectrum is not linear, it is circular. When you move to a 

certain point to the left, you end up finding yourself on the right. 

At this point, we have found left, right, and center coming together 

in support of the SAFE Act. 

Let me try to remember some of the basics from my logic course, 

and this goes back many decades in college, about what an ad 

hominem attack is, and that is a generalized attack. All lawyers 

are crooks. All politicians are dishonest. Those are ad hominem attacks. Another example would be a statement made by former Attorney General Ed Meese on the ‘‘Today’’ show where he said, ‘‘I 

think librarians, unfortunately, some of them, at least, are more inVerDate 0ct 09 2002 11:34 Jun 11, 2008 Jkt 095100 PO 00000 Frm 00040 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\95100.TXT SJUD1 PsN: CMORC
37

terested in allowing pornography to go to children than they are 

fighting terrorism.’’ That would be an ad hominem attack. 

I think your statements, Mr. Rosenzweig, in the beginning of 

your article do qualify as ad hominem attacks in that they say, ‘‘in 

the end, they appear to be little more than a political fig leaf intended to allow politicians to assert they have responded to public 

will and fixed the PATRIOT Act. But capitulating to hysteria is 

pandering, not leadership. The SAFE Act will not make America 

safer.’’ 

So I think that is a generalized ad hominem attack, but you get 

more specific in your article. You decide that you want to really address the authors of the SAFE Act, who happen to be here today 

greeting you, and let me quote. ‘‘The proposed modification of the 

PATRIOT Act misses the point completely, so much so that one 

doubts whether any of the authors is a serious student of either 

law enforcement or intelligence activity.’’ Those are your words. 

So if we take some umbrage at what you have written, I am 

afraid you have to live with it. You wrote these words, you published them, and I assume you still stand by them. I hope that you 

understand that many of us on this panel, including Senator Craig 

and myself, believe that questioning motives at this point is not appropriate. 

But let me start, and I would like to ask you both this question. 

I want to know your starting point on the debate. We just had an 

interesting statement made by Senator Craig. He said, ‘‘I think we 

ought to err on the side of a freer citizenry,’’ to which Senator 

Hatch responded, ‘‘I think we ought to err on the side of a safer 

citizenry.’’ There is the debate. It is freedom versus security. 

So what is the starting point for both you, Mr. Rosenzweig, and 

for you, Professor Cole? Do you start with the premise that we do 

have certain inalienable rights and liberties, that they are protected and embodied in the Constitution, and that when this government wants to take away any of our rights, invade our privacy, 

the burden is on the government to prove that we should have to 

surrender our rights, or is it the other way around, and your quote 

from Locke and others suggest the first thing is order and security. 

Then we can talk about freedom. So where is your starting point, 

Mr. Rosenzweig? 

Mr. ROSENZWEIG. We need both, order, liberty— 

Senator DURBIN. Oh, that sounds like a good political answer. 

Mr. ROSENZWEIG. Well, I am going to try very hard to be politic 

today since I obviously failed, in your judgment, in the drafting. 

Our Constitution recognizes that both are important. It speaks of 

unreasonable searches and seizures, for example. Reasonable is a 

variable that changes in the circumstances. The same type of 

search that is unreasonable in order to prevent drunk driving becomes immensely reasonable— 

Chairman HATCH. It is a pretty vague word, isn’t it? 

[Laughter.] 

Senator DURBIN. Let me ask you, this Fourth Amendment that 

you are referring to also talks about probable cause and specificity. 

Now, that is not too equivocal, and frankly, when it gets down to 

it, the PATRIOT Act, at least my objections to it, get to that point, 

whether there is probable cause, whether there is specificity in 

38

terms of government action. That, I think, is the standard of reasonableness that we ought to be looking for. 

Mr. ROSENZWEIG. Actually, you are addressing what is a longstanding debate in the history of the Fourth Amendment, because 

obviously, as you know, the particularity and probable cause standards apply to the issuance of warrants and are in the second clause 

of the amendment. The reasonableness standard is in the first 

clause, and many scholars believe that the two were at least originally intended to act as independent, that the warrant requirement 

with the particularity and probable cause that you have addressed 

was simply going to be a protector for the police officer against subsequent tort actions for violations. If he got a warrant, he couldn’t 

be sued in tort because he had satisfied these requirements. And 

that the initial standard is essentially a free-standing definition of 

what is and is not reasonable. 

We went away from that and defined reasonableness in terms exclusively of probable cause and particularity, most in the 1950s, 

1960s, and 1970s through the Warren Court, but in the last 15 

years or so, the Court, the Supreme Court and most of the other 

courts, have gone back towards kind of a divergent view of those 

two. 

If we really believed that particularity was an absolute requirement for all searches and seizures, then, for example, this Congress 

could not have approved roving wiretaps in the 1980s and the 

courts would have rejected them. They have not because they understand that the two are not necessarily— 

Senator DURBIN. I want to let Professor Cole also respond, but 

I think that you are too far off in the weeds here. The question is 

whether or not under the PATRIOT Act our government should be 

given authority over our liberties and freedom and privacy where 

they cannot clearly demonstrate it is necessary for the security of 

this country, for example, those sections of the PATRIOT Act that 

have not been used and those that loom over us, and the administration is saying, not only do we want those, we want more. We 

want more of your liberty. We want more of your freedom. 

And I assume the premise that I hear from many is, in the name 

of security, give it up. Professor Cole, what is your thought? 

Mr. COLE. This is a hard question. My view is that there is a balancing act that has to be struck here, that it is a difficult balance, 

that most rights in the Constitution are not absolute but do envision that for compelling State interests, it is justified to infringe 

upon them. But—so I start with the proposition that it is a balance 

and there are trade-offs to be made. 

But then I go to looking at our history, and what you see if you 

look at our history is that in every period of crisis, we have overreacted. In every period of crisis, we have given the government too 

much power, given it too broad a scope to go after people in the 

name of facilitating investigation, as Senator Hatch suggested with 

the question to Mr. Boyd, and facilitated investigation to make it 

a crime to speak out against the war during World War I. It facilitated investigation to make it a crime to advocate communism during the Cold War. 

But in each of those historical periods, we have learned that 

those kinds of responses are a mistake and we regret them after 

39

the fact. Therefore, it seems to me, we ought to put a thumb on 

the scale, and a pretty strong thumb on the scale of liberty and require precisely the showing that you are suggesting, that is that 

there is a demonstrated need for this particular measure in order 

to respond to the problem. 

Third, it seems to me that in striking the balance between liberty 

and security, we ought to do so in ways that equally affect all of 

us. We ought not take the easy way out and strike the balances 

in a way that impose burdens and obligations on others that we 

would not bear ourselves. And I think, unfortunately, in the wake 

of 9/11, we have taken that easy route out, particularly by targeting foreign nationals, and I think that is problematic. 

And then the fourth point is that I think there is a—this is not 

often stated, but I think there is a relationship between liberty and 

security which is that when we sacrifice basic liberties, we may 

make ourselves more insecure. If you look at a world opinion about 

the United States today and compare it to September 12, 2001, 

September 12, 2001, we had the world’s sympathy. We had the 

world’s sympathy. Le Monde’s headline, ‘‘We Are All Americans,’’ 

right? 

Today, there is a higher degree of anti-Americanism around the 

world than ever before in the history of this country. That is the 

greatest threat to our insecurity—to our security over time. That 

is what makes it hard for us to find the terrorists. That is what 

makes it easy for terrorists to recruit people to our side. 

And if you look at what is the basis for that rising tide of antiAmericanism, it is perceived hypocrisy on the part of the United 

States in sacrificing liberties that we insisted other countries must 

abide by, and asserting powers to lock people up without any showing that they are, in fact, dangerous, without any hearing, without 

any trial, and imposing on other people’s nationals burdens and obligations that we would not bear ourselves. 

So I think it behooves us from a security standpoint to put a 

thumb on the side of liberty as well as from a liberty standpoint. 

Senator DURBIN. Thank you. I am way over my time and I thank 

you for your forbearance, Mr. Chairman. I would like to ask, last 

fall, you suggested and said that you would schedule a hearing on 

enemy combatants, and I hope that in light of this discussion, what 

has happened with the Iraqi prisoners, I hope that we can do that. 

I really think that is an important thing for us to talk about, the 

standards for detention and imprisonment that we are abusing in 

Guantanamo and other places, and I hope this Committee will do 

that. Thank you, Mr. Chairman. 

Chairman HATCH. That is a fair comment. I am headed down to 

Guantanamo in just a short while and I am going to go look that 

situation over and we will certainly—I think we probably will do 

exactly that. 

I want to thank both of you for being here. I think you both 

added a lot to this hearing and I think you both have agreed that 

we need to be safe, we need to be secure, but we need to be free, 

and we have got to balance those great goals, and the question is, 

how do you do it? 

Now, one of the most amazing things to me is that this is now 

the fifth hearing on the PATRIOT Act that I have conducted and 

40

I have yet to see one evidence of abuse of the Act. Now, I hear a 

lot of theory and I hear a lot of legal theory from the left to the 

right, but the Act has worked particularly well. As everybody 

knows, I was against sunsetting it. 

Now, there are a number of proposals floating around Congress 

dealing with various provisions of the PATRIOT Act. One of the 

reasons I have been holding this series of hearings and of terrorism-related hearings is to hear complaints or concerns about the 

PATRIOT Act, to see if changes are necessary. Proponents of the 

SAFE Act argue that additional provisions of the PATRIOT Act 

should sunset so that the Congress can provide oversight. 

Well, I have got news for them. The Senate Judiciary Committee 

always has the authority to hold oversight hearings over the Department of Justice regardless of whether various provisions in the 

criminal laws of this country are subject to sunsets or expiration 

dates. We have the right to do that no matter what and we are 

going to. 

For example, after the recess, we will again have a hearing on 

the material support clause of the PATRIOT Act which does not 

sunset. Additionally, I am wary of adding sunsets to a host of new 

provisions. 

As many of you know, the Senate has been the site of unprecedented filibusters this Congress. This has allowed a minority of 

Senators to thwart the will of the majority. We have had obstruction like I have never seen in my 28 years in the Senate over the 

last couple of years. Almost every bill that has any question by the 

other side is going to be filibustered and is going to have to have 

60 votes in the Senate. It used to be you would have maybe one, 

two filibusters a year and it was always on some profound, very, 

very important issue where there really was tremendous division. 

Now, it is on everything. 

So a minority of Senators can thwart the will of the minority, 

and should a minority of Senators decide that they don’t want any 

PATRIOT Act provisions reauthorized, that minority could then filibuster and cause these provisions to lapse despite the will of the 

majority. 

So naturally, I haven’t been very enthusiastic about the sunset 

clause, but I lost in that matter, primarily because the left and the 

right getting together, and maybe that is for the best. I don’t know. 

But I will tell you this. If we don’t reauthorize the PATRIOT Act 

and a number of these provisions, I think this country is going to 

be really in peril. 

I have read your article on the SAFE Act and you make a lot of 

powerful points there. And Larry, I think they are worthwhile 

reading, as you have done. I also know my colleague from Idaho, 

what a fine man he is and how patriotic he is and how very much 

he yearns and gives every aspect of his being to try to do what is 

right here. And so I interpret the SAFE Act to be a great attempt 

at trying to do what is right here, and there are differences on the 

PATRIOT Act. 

I happen to differ on the SAFE Act. I can’t imagine why anybody 

wouldn’t get rid of roving wiretaps in this modern age. I just can’t 

imagine it, especially since they have been used for 20 years in 

other forms of law, which brought the PATRIOT Act finally up to 

41

speed with regard to domestic terrorism. You can go down each one 

of these provisions that are being criticized and, I think, show the 

validity of them and the necessity of them. 

And I agree with Professor Cole. They could be misused, just like 

all criminal laws can be misused by an improper and obnoxious set 

of law enforcement officials who don’t abide by the laws themselves, yes. That is why we have oversight. Yes, they can be misused, but that is true of any criminal law, or virtually any criminal 

law. I guess I had better not be that broad because I can think of 

some things that might not be able to be abused, they are so insignificant. 

At this time, I would like to submit into the record the written 

testimony of Professor Robert Chesney from the Wake Forest Law 

School, who was unable to appear before us today. 

We are going to leave the record open for one week for any written questions by Senators on these matters. 

I am also going to put into the record a May 5 letter from the 

Department of Justice to me as Chairman and it is an interesting 

letter from William E. Moschella, the Assistant Attorney General, 

and we will put that in the record, as well. 

In the meantime, I have kept the door open for both of you, as 

experts in the field, to write to us and help us know how to do this 

better, because we are going to reauthorize this bill, and personally, I would like to reauthorize all those sections that you, Mr. 

Cole, think should not be, and some of which you might have questions about, Mr. Rosenzweig, but I can be convinced. I can be persuaded with good legal reasoning. 

So I am opening the door for you to persuade me. If nothing else, 

give us your suggestions on how we make this better, how we resolve some of these conflicts that you think are constitutional conflicts that are currently unresolvable. Believe it or not, we really 

want to do what is right. 

The one thing I do want to do is I want to make sure that with 

the protection of the freedoms of this country, we do the ultimate 

that we can to protect the safety of the people in this country, because that safety was not protected very well before the PATRIOT 

Act. It is now being protected as well as we can with the PATRIOT 

Act, and that is not to say we can’t provide greater protections 

through a renewal of the PATRIOT Act by adding some sections 

that might be even better than what we have. 

But again, I will come back to my point. I have had five hearings 

and I have yet to have one substantive showing of an abuse— 

Senator CRAIG. Mr. Chairman, I totally agree with you. 

Chairman HATCH. That is the thing that amazes me. 

Senator CRAIG. We are being prospective. 

Chairman HATCH. No, I understand. 

Senator CRAIG. We have got quality people at the Justice Department. You and I both know the integrity of our Attorney General, 

and if he ever sensed there was going to be abuse under his administration, he would pull it back. 

Chairman HATCH. Yes, he would. 

Senator CRAIG. The SAFE Act is prospective, and I think that is 

a very important part of it. I would fear that we would act after 

42

the fact, after we had destroyed somebody’s reputation because of 

an abuse— 

Chairman HATCH. Well, I— 

Senator CRAIG. —and that is where we come from here. 

Chairman HATCH. And I think that is where you come from and 

I admire you for it and respect you for it, but I also fear that if 

we do away with some of these provisions that the SAFE Act would 

do away with, that we are exposing American citizens to unnecessary and undue exposure to terrorism, and that is why the PATRIOT Act was enacted to begin with. 

And I think before we change those provisions, somebody ought 

to show me where those provisions have not operated properly, 

where those provisions have been abused, where those provisions 

will not do for us what 310 criminals indicted and 179 of them convicted has done for us. 

You know, I may be considered a hard-nose on crime, but I will 

tell you, I want to see some real substantive reasons. 

We had a hearing out in Utah. It was amazing to me. We allowed the other side to come in and people from the Eagle Forum 

and from others came in. I mean, there were a lot of generalities, 

a lot of generalities. There was not one substantive thing said as 

to what was wrong with the PATRIOT Act, or what really has been 

done wrong with the PATRIOT Act, not one thing. And yet the 

media played it like they were all there really giving us the business on the PATRIOT Act. 

Well, I think you have got to have some substance behind it and 

not just fears that law enforcement might not live up to law enforcement’s obligations. Yes, we have got to make sure law enforcement does, but we ought to have some substantive criticism before 

we take away provisions that may save American citizens from another 9/11. I think that is just a given. 

But then again, there are 535 members here and maybe a majority will not agree with me, and if that is so, I can live with that. 

What I can’t live with is another 9/11. What I can’t live with is not 

doing everything in our power to protect the people of this country. 

I think the PATRIOT Act does that. I think most people believe 

that because they have seen it do it, and here is the testimony here 

today, pretty strong testimony that it has been doing it for us. 

Before we change it, and I just cite roving wiretaps as an illustration. In this day of cell phones, Blackberries, you name it, it is 

nuts to go with what was the law before, basically having to go to 

the FISA court to get a warrant every time against the phone and 

not against the terrorist and have to get one in every jurisdiction 

where the phone shows up. I mean, that is ridiculous, and yet that 

is what the state of the law was with regard to terrorism beforehand and— 

Senator CRAIG. Mr. Chairman— 

Chairman HATCH. —how we can combat terrorists. 

Senator CRAIG. I am not here to debate you. 

Chairman HATCH. I know. 

Senator CRAIG. It does not eliminate roving wiretaps. It creates 

greater specificity. You and I started this debate and worked together some years ago when we saw the technologies changing and 

the hard wire moving to digital and all of us understand that. But 

43

I do believe you are not erring when you are asking for some degree of specificity instead of just a general approach. 

Chairman HATCH. Well, they do have a degree of specificity. That 

is the point that I am trying to make. 

Senator CRAIG. We will have ample time to debate this, but the 

idea of suggesting that we have eliminated it, I don’t believe is a 

fair analysis. 

Chairman HATCH. Let me be more clear on that, then. It prevents the government—the SAFE Act would prevent the government from obtaining a roving wiretap, as I understand it, unless 

the government can specify the suspect’s name, and currently the 

government can obtain an order to intercept the communications of 

a suspect even when the identity of the suspect is not known. All 

they have to do is provide a sufficient description of the subject. 

And this would make it harder to get roving wiretaps in terrorism 

cases than in narcotics investigations, where roving wiretaps were 

available prior to the USA PATRIOT Act. I don’t think anybody 

can deny that. 

Senator CRAIG. And I support that. Mr. Chairman— 

Chairman HATCH. No, that is not what it says. 

Senator CRAIG. —there is a difference between a roving wiretap 

and a John Doe wiretap. That is what we eliminate. 

Chairman HATCH. Okay. 

Senator CRAIG. Thank you. 

Chairman HATCH. Well, we are probably going to have a hearing 

on it and see, but I don’t agree with that. And frankly, I think it 

is a dangerous thing. But be that as it may, Senator Craig, I know 

you are sincere and I know you may prevail on it and that may 

be the case. I don’t know. I just hope not. It will be a worthy debate 

and I just hope not because I am concerned. 

I am concerned that we should do everything we possibly can to 

protect our people while at the same time protecting civil liberties, 

and I think the PATRIOT Act, even with some of the defects that 

have been mentioned, does that. 

With that, we will recess until further notice. I want to thank 

you two again for being here. 

[Whereupon, at 12:34 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.]

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