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96–107 PDF 2004

S. HRG. 108–624

TOOLS TO FIGHT TERRORISM: SUBPOENA AUTHORITY AND PRETRIAL DETENTION OF TERRORISTS

HEARING

BEFORE THE

SUBCOMMITTEE ON TERRORISM, TECHNOLOGY 

AND HOMELAND SECURITY

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

JUNE 22, 2004

Serial No. J–108–83

Printed for the use of the Committee on the Judiciary

(

(II)

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 

SUBCOMMITTEE ON TERRORISM, TECHNOLOGY AND HOMELAND SECURITY

JON KYL, Arizona, Chairman 

ORRIN G. HATCH, Utah 

ARLEN SPECTER, Pennsylvania 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

SAXBY CHAMBLISS, Georgia 

DIANNE FEINSTEIN, California 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

JOHN EDWARDS, North Carolina 

STEPHEN HIGGINS, Majority Chief Counsel 

DAVID HANTMAN, Democratic Chief Counsel 

(III)

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 ............. 3

prepared statement .......................................................................................... 47

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

statement .............................................................................................................. 50

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

prepared statement and attachments ............................................................. 51

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

statement .............................................................................................................. 73

WITNESSES 

Battle, Michael, U.S. Attorney, Western District of New York, Buffalo, New 

York ....................................................................................................................... 7

Brand, Rachel, Principal Deputy Assistant Attorney General, Office of Legal 

Policy, U.S. Department of Justice, Washington, D.C. ..................................... 5

Robinson, James K., Former Assistant Attorney General, Criminal Division, 

Department of Justice, Washington, D.C. .......................................................... 10

SUBMISSIONS FOR THE RECORD 

American Civil Liberties Union, Timothy H. Edgar, Legislative Counsel, prepared statement ................................................................................................... 29

Battle, Michael, U.S. Attorney, Western District of New York, Buffalo, New 

York, prepared statement .................................................................................... 35

Brand, Rachel, Principal Deputy Assistant Attorney General, Office of Legal 

Policy, U.S. Department of Justice, Washington, D.C., prepared statement .. 41

Robinson, James K., Former Assistant Attorney General, Criminal Division, 

Department of Justice, Washington, D.C., prepared statement ...................... 76

(1)

TOOLS TO FIGHT TERRORISM: SUBPOENA AUTHORITY AND PRETRIAL DETENTION OF 

TERRORISTS 

TUESDAY, JUNE 22, 2004 

UNITED STATES SENATE, 

SUBCOMMITTEE ON TERRORISM, TECHNOLOGY AND HOMELAND

SECURITY, OF THE COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:42 p.m., in room 

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

of the Subcommittee, presiding. 

Present: Senators Kyl and Feingold. 

Chairman KYL. The Subcommittee on Terrorism, Technology and 

Homeland Security will come to order. I am going to filibuster for 

just a moment to give Senator Feingold an opportunity to arrive. 

It will give me a chance to apologize to everyone for our late start. 

Something very amazing happened today. The Senate official 

photograph was to be taken at 2:15, and for some reason that I 

can’t fathom not everybody showed up at exactly 2:15 for that photograph. Senators were actually late to have their picture taken. 

Now, I must note that most of them were on the other side of the 

aisle, and maybe Senator Feingold can explain why Senators would 

actually be late for an opportunity for their photograph to be taken. 

But in any event, on behalf of both of us, I apologize for keeping 

you all waiting and we will be able to begin the hearing now. 

If you would like any rebuttal to that, Senator Feingold, you are 

welcome. Otherwise, I will make my opening remarks. 

Senator FEINGOLD. I am non-plused by the partisan attack. 

[Laughter.] 

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

FROM THE STATE OF ARIZONA 

Chairman KYL. Well, I appreciate our witnesses being here today 

and we do have a very important subject for discussion. I am going 

to describe our panel to those of you who are here because it is an 

exceptionally qualified panel of experts to talk about the problems 

that we are going to be talking about. 

We are going to be focusing today on the general question of 

what additional tools the Department of Justice might need in 

order to best prosecute this war on terror in which we are all involved and which we all want to help. In particular, today’s hearing 

will focus on legislation that would extend direct subpoena authority to the FBI for anti-terrorism investigations and a bill that 

2

would add terrorism offenses to the list of crimes that are subject 

to a statutory presumption of no bail. 

Now, let me introduce these witnesses so you will know what 

kind of expertise we have. 

Rachel Brand is the Principal Deputy Assistant Attorney General 

in the Office of Legal Policy of the United States Department of 

Justice. Ms. Brand previously served as an associate counsel to the 

President in the White House, and prior to that as an associate 

with the law firm of Cooper, Carven and Rosenthal. She has also 

served as a law clerk to U.S. Supreme Court Justice Anthony Kennedy and to Massachusetts Supreme Court Justice Charles Freed. 

Michael Battle is the United States Attorney for the Western 

District of New York. Prior to his current post, Mr. Battle served 

as Erie County family court judge in Buffalo, New York. He also 

previously has served as the assistant attorney general in charge 

of the Eighth Judicial Circuit with the New York Attorney General’s office and as an assistant public defender in the Federal Public Defender’s office for the Western District of New York. Finally, 

Mr. Battle also served 7 years as Assistant U.S. Attorney for the 

Western District of New York. 

James K. Robinson currently is a member of the law firm of 

Cadwalader, Wickersham and Taft here in Washington, D.C. From 

1998 to 2001, Mr. Robinson was the Assistant Attorney General of 

the United States Department of Justice’s Criminal Division. Mr. 

Robinson has also served as a dean and professor of law at Wayne 

State University Law School, as the United States Attorney for the 

Eastern District of Michigan, and as Chairman of the Michigan Supreme Court Committee on Rules of Evidence. He is a coauthor of 

the recently published Courtroom Handbook on Michigan Evidence. 

I want to thank all of you for being here today, and again we 

really appreciate having your expertise on these issues. 

Let me just make a brief comment in opening and then put the 

remainder of my statement in the record. I will note at this point 

that, without objection, any member statements will be included in 

the record if they would like to submit them. 

We all are aware of the fact that the Justice Department is in 

the front of this war on terror here in the United States. It deserves a lot of praise for work that has been done since September 

11. Worldwide, more than half of al Qaeda’s senior leadership has 

been captured or killed. More than 3,000 al Qaeda operatives have 

been incapacitated. 

Within the United States, four different terrorist cells have been 

broken up—cells in Buffalo, Detroit, Seattle and Portland. 284 individuals have been criminally charged to date, and 149 have been 

convicted or pleaded guilty, including shoe bomber Richard Reid, 

six members of a Buffalo terrorist cell, two members of a Detroit 

cell, Ohio truck driver Iymam Faris and U.S.-born Taliban John 

Walker Lindh. 

But we also know that despite these successes, there are additional tools that we can provide to our law enforcement and judicial 

officers. Just as we send our military men and women into battle 

with the very best training and equipment, so too must we do the 

same thing for those who are doing the job here on the home front. 

3

We certainly cannot ignore that the successes that we have had 

are only the tip of the iceberg, that we still have a huge effort in 

front of us in order to ensure that we don’t have additional attacks 

here in the United States and that we can roll up those who are 

responsible for future attacks. That is why we have convened this 

hearing today to investigate some additional tools that we might be 

able to provide for our law enforcement community at large, and 

specifically for Federal law enforcement. 

Rather than talk about the legislation that I have introduced at 

this point or further describe its contents, I am going to defer to 

Senator Feingold for his opening remarks. And then during the 

questioning, I am sure we will have a lot more opportunity to get 

into some of those details. I have authored a couple of bills which 

I think would help and would provide some additional tools, and 

we will be very interested in getting the views of those of you who 

are expert in this matter as to how well you think they would 

work, whether they are needed and how we could implement them. 

Again, I thank you all for being here today. 

[The prepared statement of Chairman Kyl appears as a submission for the record.] 

Chairman KYL. Senator Feingold. 

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

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. Thank you, Mr. Chairman. First, I want to 

thank you for allowing me to join you here today. Senator Feinstein, who is the Ranking Member of this Subcommittee, was unable to attend today because of a previous commitment to attend 

an Intelligence Committee briefing with Director Tenet. 

I have always been impressed with the seriousness of the work 

done in the Subcommittee on Terrorism, Technology and Homeland 

Security, and today’s hearing is no exception. As I have repeatedly 

said, protecting the country against terrorism should be our Nation’s top priority. Deciding what powers we are going to grant to 

law enforcement in the fight against terrorism is one of the most 

critical issues confronting Congress, and I am glad that we are taking deliberate steps to consider this very important issue. 

I must also express my disappointment, however, at the narrow 

focus of this hearing. Many members of the Judiciary Committee, 

both Republicans and Democrats, have been publicly seeking a 

hearing on how the PATRIOT Act is being used and a real debate 

on whether some of the most controversial provisions of that Act 

could be improved to better balance the needs of law enforcement 

with the civil liberties and privacy of the American people. 

In fact, Senator Feinstein, like many of us in Congress, has still 

not received basic answers to her letters written to the Department 

of Justice about the PATRIOT Act. She has written to the Department of Justice two times this year and is yet to receive a response. 

And she is not alone. I have repeatedly asked for information about 

how some of the most controversial provisions of the PATRIOT Act 

like Section 215 have been used, and have not received satisfactory 

responses. 

For us to have a meaningful conversation, it needs to be a twoway conversation. Rather than convening to explore how the adVerDate 0ct 09 2002 08:59 Oct 01, 2004 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\96107.TXT SJUD4 PsN: CMORC
4

ministration is utilizing the powers already granted to it under the 

original PATRIOT Act, we are here today to learn about administration requests for even more authority. 

While I am disappointed that the focus of this hearing is so narrow, I do hope it will help to inform us about whether we need to 

give the Department of Justice even more power, and if the answer 

is yes, then what safeguards should be built into that authority. 

Today, we will be hearing about proposals to create a new, broad 

subpoena authority that actually bypasses the grand jury system 

in terrorism cases, and an expanded presumptive right to pre-trial 

detention for people charged with any terrorism-related crime. The 

administration is apparently reluctant to allow these proposals to 

be linked to the PATRIOT Act, but a version of these proposals did 

appear in the draft of the so-called PATRIOT II leaked last year, 

entitled the Domestic Security Enhancement Act. 

As our Nation faces terrorist threats, we must respond to those 

threats without compromising the civil liberties that are the bedrock of our country. We must balance the legitimate needs of law 

enforcement against the privacy and freedom of all Americans, the 

vast majority of whom are, of course, innocent of any association 

with terrorists. 

An essential tenet of any plan to keep Americans safe must be 

a dedication to safeguarding the civil rights and liberties that define this great Nation. The criminal justice system has by and large 

served us well. Over the years, we have used our criminal justice 

system to successfully prosecute rapists, pedophiles, drug dealers, 

street gangs, murderers, organized crime and others, while respecting important civil rights. 

I hope the witnesses today will be able to tell us why these new 

powers are needed in the fight against terrorism. The burden is on 

the administration to show Congress and the American people why 

current law is inadequate, why Federal law enforcement needs 

even more power, and how the power it already has under the PATRIOT Act and the new powers it now seeks are consistent with 

the Constitution and the Bill of Rights. 

I share the Chairman’s commitment to protecting Americans 

from terrorism, but at the same time we cannot ignore the FBI’s 

history of abusing its authority in launching investigations against 

civil rights and anti-war activists. Taking into account this history 

of targeting activists that challenge the Government’s policies, the 

language of the pre-trial detention bill is particularly disturbing. In 

fact, the pre-trial detention bill, Senate 1606, would include traditional forms of political activism in the definition of terrorism. 

Mr. Chairman, we should take a considered and measured course 

when creating new powers, choosing to build upon the well-tested 

powers already contained in the Criminal Code, if necessary. For 

that reason, I am very pleased James K. Robinson, former Assistant Attorney General for the Department of Justice’s Criminal Division, is with us today to share his wealth of knowledge and experience on these issues. I wish to extend a special welcome to Mr. 

Robinson and express my great appreciation for his willingness to 

join us on such short notice. 

With respect to the PATRIOT Act, I believe that Americans support common-sense proposals to protect privacy and civil liberties 

5

that would not in any way undermine the fight against terrorism. 

They have asked the administration and the Congress to listen. 

Hearing their concerns and acting on them is the right and patriotic thing to do. 

So as we begin the hearing today on a set of proposed new tools 

to fight terrorism, I urge all participants to engage in an open and 

honest dialogue with Congress and the American people about how 

to combat the very real threat of terrorism, while respecting the 

freedoms of all Americans. 

I thank you, Mr. Chairman, and I do look forward to hearing 

from the witnesses. 

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

Chairman KYL. Thank you very much, Senator Feingold, and I 

should have announced earlier that we scheduled this hearing at 

a time when Senator Feinstein had no alternative but to be at the 

Intelligence Committee. I know her staff is here and I regret that 

we had to do that, but I do appreciate Senator Feingold being here. 

I certainly agree with much of the sentiment, Senator Feingold, 

that you expressed. I am trying to find out the exact number of 

hearings that have been held that have examined the use of the 

PATRIOT Act, because I think we have had several and I just want 

the record to reflect whatever that number is. I will see if I can 

get that, but I am perfectly willing to have more. In any event, we 

can delve today into some potential new tools that might be used, 

and I think we have three people here who are very well qualified 

to discuss that. 

I think probably the proper order would be first for Rachel 

Brand, then Michael Battle, and then James Robinson, the cleanup hitter who I know will have some different point of view. But 

let’s do it in that order and start with you, Rachel Brand. Thank 

you very much for being here. 

STATEMENT OF RACHEL BRAND, PRINCIPAL DEPUTY ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL POLICY, DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Ms. BRAND. Thank you, Chairman Kyl and Senator Feingold. I 

appreciate the opportunity to testify today. 

The tools that this proposal would provide counter-terrorism investigators could provide the critical difference in certain terrorism 

investigations. I am going to focus today on the administrative subpoena proposal. Mike Battle will focus on the presumptive pre-trial 

detention of terrorist suspects proposal. 

In terrorism investigations, prevention is the key, and for the 

law enforcement officers responsible for staying a step ahead of terrorists in these investigations time is of the essence. Even a brief 

delay in these investigations can be disastrous. Therefore, investigators need tools that allow them to obtain information and to act 

as quickly as necessary. Administrative subpoenas are one tool that 

would enable investigators to avoid costly delays. 

An administrative subpoena, as you know, is an order from an 

agency official to a third party requesting the recipient to produce 

certain documents. These subpoenas are a well-established investigative tool currently available in investigations of a wide variety 

6

of Federal offenses, including health care fraud and sexual abuse 

of children. In fact, my office has identified approximately 335 existing administrative subpoena authorities for use in civil and 

criminal investigations. 

Administrative subpoenas are not, however, currently available 

in criminal terrorism investigations. This disparity in the law is illogical, especially considering the particular need for quick action 

in a terrorism investigation and the potentially catastrophic consequences of a terrorist attack. 

The legislation introduced by Chairman Kyl would fix this anomaly in the law by giving the FBI authority to use administrative 

subpoenas in investigations of Federal crimes of terrorism. Grand 

jury subpoenas which are issued by Federal prosecutors are a useful tool in all criminal investigations and are available to obtain 

the same types of records that could be requested with an administrative subpoena. 

However, there are circumstances in which the FBI’s ability to 

directly issue an administrative subpoena would save precious time 

in a terrorism investigation. For example, using an administrative 

subpoena would eliminate delays caused by the potential unavailability of an Assistant U.S. Attorney, the lack of a grand jury sitting at the moment the documents are needed, or the absence of 

an empaneled grand jury in the judicial district where the investigation is taking place. 

Some of these circumstances occur only rarely, but in terrorism 

investigations, in particular, investigators need the tools to act as 

quickly as necessary when these circumstances do occur. And these 

same considerations have led Congress to create other administrative subpoena authorities that already exist. 

The Department has previously provided Congress with examples of when administrative subpoenas would prove useful, but I 

will recap these briefly now. 

In the first example, on a Friday afternoon investigators learn 

that members of an al Qaeda cell have purchased bomb-making 

materials. They want to obtain purchase records that may reveal 

what chemicals the terrorists purchased and delivery records that 

might reveal the terrorists’ location. 

Investigators can reach a prosecutor, who issues a grand jury 

subpoena. But because the grand jury is not scheduled to meet 

again until Monday, the return date of the subpoena must be Monday, as well, and investigators may not obtain the information for 

3 days, by which time the al Qaeda cell may have executed its 

plan. The return date of an administrative subpoena, by contrast, 

does not have to be a date the grand jury is sitting, which will potentially allow investigators to obtain information more quickly. 

In the second scenario, investigators learn that members of an al 

Qaeda cell recently stayed at a particular hotel. Investigators want 

to obtain information about the credit card numbers used to pay for 

the hotel room, but the hotel manager declines to produce the 

records without a subpoena for fear of incurring civil liability. 

If investigators were able to issue the administrative subpoena 

immediately, the hotel manager could comply immediately, as well, 

without fear of incurring liability. Without this authority, however, 

investigators would have to wait to contact an Assistant U.S. AttorVerDate 0ct 09 2002 08:59 Oct 01, 2004 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\96107.TXT SJUD4 PsN: CMORC
7

ney to assure a grand jury subpoena, which potentially would lose 

valuable time in a terrorism investigation where speed is of the essence. 

In addition to providing an important new law enforcement authority, Chairman Kyl’s bill contains important protections. For example, it would not give the Justice Department unilateral authority to compel the production of documents. If a recipient refuses to 

comply with a subpoena, the Justice Department must go to court 

to enforce it, and the recipient would have the ability to ask the 

court to quash the subpoena, as with other subpoena authorities. 

Because the bill would only apply to terrorism investigations, in 

which confidentiality is often critical to success, it would prohibit 

a subpoena recipient from disclosing the subpoena in cases where 

the Attorney General certifies that disclosure would endanger national security. 

The bill, however, would impose several safeguards on the use of 

this non-disclosure provision. For instance, the requirement would 

last only until the Attorney General determines that the requirement is no longer justified by a danger to the national security. At 

that time, the recipient of the subpoena would be notified that the 

non-disclosure application had expired. 

In addition, the recipient would be explicitly allowed to discuss 

the subpoena with his or her attorney, and the recipient could challenge a non-disclosure obligation in Federal court and the court 

could set it aside if it determined that doing so would not endanger 

the national security. 

The bill also would immunize against civil liability individuals 

who comply with an administrative subpoena. These subpoenas 

thus protect third parties who are willing to comply with a subpoena, but fear incurring civil liability if they do so. In short, this 

bill would advance law enforcement’s proactive approach to preventing terrorism by giving officers the tools they need to conduct 

time-sensitive investigations without unnecessary delay, all while 

providing appropriate safeguards. 

Mr. Chairman, thank you again for allowing me to testify and I 

will look forward to your questions. 

[The prepared statement of Ms. Brand appears as a submission 

for the record.] 

Chairman KYL. Thank you for that statement. 

Mr. Battle. 

STATEMENT OF MICHAEL BATTLE, UNITED STATES ATTORNEY, WESTERN DISTRICT OF NEW YORK, BUFFALO, NEW 

YORK 

Mr. BATTLE. Thank you, Chairman Kyl. Good afternoon, Ranking 

Member Feingold. I thank each of you for the opportunity to testify 

before you today. 

As United States Attorney for the Western District of New York, 

I have had firsthand experience with terrorism investigations and 

prosecutions. As a result of that experience, I can tell you that the 

safety of our fellow citizens would be significantly enhanced if Federal law enforcement provided for the presumptive pre-trial detention of terrorists. 

8

Mr. Chairman, the Pre-Trail Detention and Lifetime Supervision 

of Terrorists Act of 2003 is an important and much-needed piece 

of legislation, and the Department of Justice strongly urges the 

Congress to pass it as soon as possible. 

Let me begin by explaining the nature of the problem that this 

bill is intended to fix. While it may seem intuitive that those 

charged with the most serious crimes and who may pose a flight 

risk or danger to the community should be detained before trail, 

under current law that is not always the case. Although defendants 

in Federal cases who are accused of certain crimes are presumptively denied pre-trial release, under Title 18, United States Code, 

Section 3142(e), the specific enumerated list of such crimes contained in that statute does not include most terrorism offenses. 

The consequences of this gap in the law were noted by President 

Bush, who, on September 10, 2003, in a speech at the FBI Academy, said, quote, ‘‘Suspected terrorists could be released, free to 

leave the country, or, worse, before trial. This disparity in the law 

makes no sense. If dangerous drug dealers can be held without bail 

in this way, Congress should allow for the same treatment of accused terrorists.’’ 

Mr. Chairman, your bill would answer the President’s call to action and close this loophole. The bill would amend Title 18, U.S. 

Code, Section 3142(e), to presumptively deny release to persons 

charged with an offense involved in or related to domestic or international terrorism or with the Federal crime of terrorism as defined in U.S. Code 2332b(g)(5). This change in the law would not 

result in the automatic detention of individuals charged with those 

offenses, but merely a rebuttable presumption in favor of detention, 

a presumption that could be overcome with evidence from the accused that would favor release. 

Adding all terrorism offenses to the list of crimes for which there 

is a presumption in favor of detention is warranted because of the 

unparalleled magnitude of the potential danger posed to our fellow 

citizens by acts of terrorism. These acts, moreover, are many times 

committed by individuals who are part of a larger group, many 

with international connections that are often in a position to help 

their members flee or go into hiding if released before trial. 

It is important to emphasize that this proposed legislation does 

not represent a solution in search of a problem. This problem is a 

very real one and, unless fixed, the threat posed by this problem 

will remain clear and present. I want to share with the Subcommittee one real-life example of how the current statutory 

scheme can impede terrorism investigations and prosecutions, and 

why a legislative solution is necessary. 

In a recent terrorism case in the Western District of New York 

involving several defendants collectively known as the Lackawanna 

Six, the Government sought an order for pre-trial detention of each 

defendant. The defendants, of course, opposed this motion. Because 

Section 3142 did not presently include a presumption for pre-trial 

detention in terrorism cases, a nearly three-week hearing on the 

issue of detention followed. 

In the course of that hearing, we, the Government, were forced 

to disclose a substantial amount of our evidence against the defendants. In fact, the magistrate presiding over the hearing went 

9

so far as to consider a request by defense counsel to require us to 

put an FBI agent on the stand so that he could be cross-examined 

by defense counsel, which is very unusual. Fortunately, the magistrate judge denied this request by the defense, thus avoiding 

what was already turning into a miniature trial which would have 

put the government at a significant tactical disadvantage due to 

what would have been a premature disclosure of even more of our 

trial evidence. 

Moreover, without the presumption of detention in this case, the 

magistrate judge did authorize the release of one defendant. Although that defendant failed to post bail and therefore was not released, it was later revealed that this defendant had been the least 

candid of the six and had, in fact, lied to the FBI about the fact 

that he had met with Osama bin Laden in Afghanistan. 

If the law had contained a presumption in favor of pre-trial detention applicable to the charges of these defendants, it is unlikely 

that the Government would have been required to prematurely disclose so much of its evidence, and virtually certain that the hearing 

would not have lasted almost three weeks. However, let me remind 

you that even with a presumption of detention in this case, defense 

counsel would have had the opportunity to argue and present evidence against detention. 

In addition to tactical concerns, the absence of a presumption of 

detention could permit terrorist suspects to go free altogether without facing justice. In another case, for example, a Hezbollah supporter was charged with providing material support to a terrorist 

organization. He fled the country after being released on bail. After 

living overseas as a fugitive for 6 years, he surrendered to the FBI 

and now is in U.S. custody. 

These examples illustrate the dangerous loophole that exists in 

current law. Clearly, we are not talking about a purely theoretical 

problem that may or may not come up in the future. We are talking about real obstacles the Government has faced in prosecuting 

the war on terrorism. Mr. Chairman, the passage of this bill will 

go a long way toward ensuring that such situations cannot occur 

again. 

Once again, thank you for allowing me to testify and present my 

perspective as a prosecutor in the field on this very important 

issue, and I look forward to answering any questions that you may 

have. 

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

for the record.] 

Chairman KYL. Thank you very much for your testimony, and I 

note that both of you conformed to our five-minute rule. Your full 

texts, of course, will be made part of our record and I do appreciate 

your keeping to our time constraints. We should have plenty of 

time to have several different rounds of questions. 

Our final witness is James Robinson. 

Mr. Robinson, the floor is yours. 

10

STATEMENT OF JAMES K. ROBINSON, FORMER ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF 

JUSTICE, WASHINGTON, D.C. 

Mr. ROBINSON. Thank you, Chairman Kyl and Senator Feingold. 

I am pleased to appear before the Subcommittee to offer my views 

on Senator Kyl’s proposed Judicially Enforceable Terrorism Subpoena Act. 

The issues before the Subcommittee today are of critical importance to the country and I commend the Subcommittee for holding 

this hearing. I want to personally thank the Chairman and Senator 

Feingold for your serious attention to the terrorism threat posed 

today to the United States and to the world. 

While working as the Assistant Attorney General for the Criminal Division, it was my honor to appear before this Committee and 

subcommittees of the Congress dealing with criminal justice issues, 

and I am pleased to be here today to discuss these important issues 

dealing with measures designed to help law enforcement in waging 

the war against terrorism. 

As September 11 taught us all too well, terrorism does present 

a grave danger to our National security and to the safety of American citizens throughout the world. America must bring all of the 

appropriate resources to bear in the fight for freedom and against 

terrorism. 

I have no doubt that this bill and Representative Feeney’s bill in 

the House—that is, the Anti-Terrorism Tools Enhancement Act of 

2003—are offered with America’s best interests in mind. However, 

I think some of their provisions merit very careful consideration 

both from a law enforcement and from a civil liberties perspective. 

As the Subcommittee, I am sure, already appreciates, as currently proposed, these two proposals would fundamentally change 

in many ways the traditional limits on the power of law enforcement to interfere with the liberty rights of American citizens in 

dealing with their Government. 

More specifically, I encourage the Subcommittee to carefully 

scrutinize how these new devices contained in these proposals have 

the potential for curtailing important checks and balances that 

could well create legal and constitutional challenges, and could in 

the end cause the war on terrorism more harm than good. 

Over the years, Congress has appropriately, I think, been reluctant to expand the powers of criminal law enforcement agents to 

have direct access to administrative subpoenas to conduct criminal 

investigations. Such subpoenas interfere with the liberty and privacy rights of American citizens. 

While Congress has authorized administrative subpoenas in a 

variety of civil contexts and in some criminal contexts, the use of 

the subpoenas for exclusively criminal investigations raises a host 

of constitutional and due process issues not present in the civil context. To my knowledge, Congress has never authorized the creation 

of a potentially secret executive branch police proceeding of the 

type that could be contemplated by these proposals. 

I think it is important to weigh the benefit to law enforcement 

of granting this power to FBI agents or other Federal agents carefully against the potential loss of liberty, and more important from 

a law enforcement perspective the loss of the ability for the skilled 

11

prosecutors in the Justice Department to work hand in hand with 

case agents in conducting these very sensitive investigations. 

The administrative subpoenas for terrorism cases contemplated 

by the proposals under review in today’s hearing would compel 

American citizens to appear for compelled questioning, potentially 

in secret on certification by the Attorney General, before the executive branch of their Government without the participation or protection of the grand jury or of a pending judicial proceeding to answer questions and produce documents. No showing of reasonable 

suspicion or probable cause, or even imminent need or exigent circumstances, would be required to authorize such subpoenas. 

The United States Supreme Court has held that witnesses appearing before Federal grand juries need not be given the Miranda 

warnings, for example, in these kinds of proceedings because they 

are very different than the type of proceedings envisioned by the 

administrative subpoena proposals that are under consideration 

here today. 

The Supreme Court has said that this is entirely different than 

custodial interrogation, that there are marked contrasts between 

grand jury investigations and custodial interrogations. And the Supreme Court has indicated that the powerful coercive powers of a 

grand jury are justified because they are in contrast to police interrogation. 

It is certainly my experience that case agents exercise good faith 

in conducting their investigations. They do so vigorously and in the 

best interest of the country. I think it works best when they work 

hand in hand with skilled prosecutors in making these delicate decisions. 

The Justice Department has a series of carefully crafted guidelines developed over many years in dealing with the issuance of 

grand jury subpoenas. And I think it is well to keep in mind that 

as diligent and fair-minded as case agents are, it is worth keeping 

in mind a comment that has been attributed to Mark Twain that, 

‘‘to a man with a hammer, a lot of things look like nails.’’ To an 

agent with a subpoena, a lot of things will look like subpoenable 

material. 

Under this proposal there is no requirement, as there is under 

other provisions where administrative subpoenas have been allowed—and I refer the Subcommittee, for example, to the situation 

in which in situations where the Department of the Treasury feels 

that there is an imminent threat to a protected Secret Service person, someone protected by the Secret Service, administrative subpoenas are allowed under circumstances where the Director of the 

Secret Service certifies that there is an imminent threat of injury 

to a protected party. That would address, it would seems to me, 

some of the justifications that Ms. Brand, for example, offered 

about the, I think, very rare situations in which there might be 

this exigent circumstances need. 

I think that the proceedings that might be contemplated by these 

administrative proceedings are quite unprecedented in the sense 

that they are secret proceedings. I think the legislation contemplates the creation of guidelines, but it is unclear what those 

guidelines would be, where the approval level would be. 

12

And I might point out to the Subcommittee that, for example, 

even Assistant United States Attorneys in this country do not have 

a right on their own to issue forthwith subpoenas. It requires the 

personal approval of the United States Attorney, and that is because I think the Department and Congress have been careful to 

not create a situation that in my written testimony Justice Black 

once referred to as reminiscent of a star chamber in which you give 

a blank set of subpoenas to case agents who are under a lot of pressure in these cases to do an effective job, carte blanche, in effect, 

to give subpoenas to people who have to then, if they want to resist 

it, hire a lawyer, go to court. If they do any of that, you have lost 

the advantage of the exigent circumstances. 

I think we have developed over many years in the Federal grand 

jury system a carefully crafted investigative tool that has served 

the country well over 200 years. I think Congress has been wise 

to be resistant to the grant of these administrative subpoenas. 

I was the United States Attorney in Detroit in the 1970’s. This 

issue of administrative subpoenas for Federal agents has been 

kicked around for a very long time. I frankly think Congress has 

been wise to be careful about authorizing and granting this authority, and I think it would be well for the Subcommittee to look at 

this issue very carefully before making a decision to move in this 

area. And if it were to do so, once a showing would have to be 

made—and I suggest more than a hypothetical showing, but some 

real instances of situations in which there has been real harm in 

these cases. 

And I hate to raise the slippery slope argument, but it seems to 

me that the notion here is if it is good enough for terrorism cases, 

why isn’t it good enough for kidnapping cases. The agents would 

love to have it, but I think it is a great advantage to require Federal investigative agents to have to go—it isn’t just a speed bump 

to go to an Assistant United States Attorney trained and familiar 

with Federal criminal law and worried about what is going to happen down the road. Are we going to create a problem that is going 

to create a motion to suppress evidence or otherwise interfere with 

the successful prosecution of the case? 

These are all, I think, important issues from a law enforcement 

perspective, not just a civil liberties perspective, although I think 

as we think of this—and I agree with Senator Feingold that as we 

develop these tools and examine them in our important fight 

against terrorism, we need to make sure that we reserve to American citizens as much freedom and liberty that we have, particularly if at the end of the day we have created a new device, an untested device to give case agents this very awesome power to interfere with people’s lives even in situations where there isn’t imminent danger. 

I have submitted a lengthy piece of written testimony and I 

would request that the Subcommittee accept that. I share the Subcommittee’s view that the fight against terrorism and for freedom 

must be fought with all appropriate resources. As we fight for freedom, however, we must continue to live freely and in a way that 

shows the world that we respect and honor and cherish our individual liberties. 

13

With that, I will submit my written submission and be happy to 

answer any questions that the Subcommittee might have. 

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

Chairman KYL. Thank you, Mr. Robinson. All three of you have 

presented very thoughtful testimony and I very much appreciate it. 

What I would like to do is I would just ask Senator Feingold if 

it would be all right with him, since we don’t have other members 

here—incidentally, as you all know—you are experienced—this 

does not reflect any disinterest in this subject. We are all supposed 

to be at about four different places right now, and if more than two 

bells ring, we will have to leave to go to the floor. It is important 

to make a record and you all are making a record by your statements, both the written and oral statements, and by questions that 

we have. Those, of course, are shared with our colleagues and we 

appreciate it. 

Let me begin by getting to one of the last points, Mr. Robinson, 

that you made. I will ask Ms. Brand a question and if you would 

like to respond, please do so. The question concerns whether or not 

this would be something new—these administrative subpoenas 

would be something new or unprecedented. 

You testified, Ms. Brand, that the Office of Legal Policy identified 

approximately 335 administrative subpoena authorities already existing in current law, and you noted just two examples in health 

care fraud and sexual abuse. As I understand it, not all of those 

are required to be sought by the Assistant U.S. Attorney. 

First of all, is that latter assumption correct? 

Ms. BRAND. The administrative subpoena authority that allows 

subpoenas to be issued in health care fraud cases and cases involving sexual abuse of minors is given to the Attorney General by the 

statute. That has been delegated down to Assistant U.S. Attorneys 

and to any trial attorney in the Criminal Division. 

Another very frequently used administrative subpoena authority 

is 21 U.S.C. 876, which has been delegated from the AG to the FBI. 

Any special agent can authorize the issuance of a subpoena for 

Controlled Substances Act criminal investigation, any drug investigation. 

Chairman KYL. So it seems to me that it is neither a precedentcreating situation here nor one which hasn’t been used a lot, nor 

one which is only used by U.S. Attorneys. 

Mr. Robinson, I would like to get your response to that. 

Mr. ROBINSON. Thank you, Senator. There is a report to the Congress on the use of administrative subpoena authorities by the executive branch which I am sure the Senator is familiar with, and 

it is worth looking at because each of these subpoenas must be reviewed in their context. 

My point about this being unprecedented is it is unprecedented 

in this sense: As I understand, its purpose is to arm line agents, 

FBI agents, with the ability to serve the equivalent of forthwith 

subpoenas, which is give a subpoena to somebody that says you 

come to the FBI office now or tomorrow morning or in 5 minutes 

from now and bring your documents. So it is a forthwith subpoena 

that does not have any Assistant U.S. Attorney or Federal prosecutor involvement in its decisionmaking. 

14

It also is secret. It is secret in the sense that the individual involved can’t tell anyone but his or her lawyer, presumably, or 

somebody that they need to go to get documents that they have 

been subpoenaed. And if they tell the press or anyone else that 

they have been subject to such a subpoena, as I understand the 

proposal, they are committing a crime for which they can go to jail 

for a year. And if they have a certain intent, it can be a 5-year felony. 

So in that sense, I am not aware—and perhaps Ms. Brand can 

enlighten me on this—I am not aware of any administrative procedure subpoena regime that has anything like a secret proceeding 

in which agents, not lawyers, can give subpoenas to individuals to 

compel them, on pain of contempt of court or incarceration until 

they talk, in secret, under these circumstances. So that is what is 

unprecedented about it. 

I think the others are often in the context of a regulatory 

scheme, for example, in the drug area for controlled substances 

where we have—it is in the health care area; it is where people 

who are health care providers, et cetera. 

I am not saying there is no room for it at all under any circumstances. I just think that because this is new and because, it 

seems to me, it is unprecedented in the sense of who is going to 

use it, when it is going to be used and what the checks and balances are, it requires a little different attention than—and I use 

these administrative proceedings in my practice in a variety of 

these settings because I do this kind of work and I am familiar 

with it. 

Chairman KYL. First of all, you cited in your testimony as an example of how we can already obtain certain kinds of documents the 

national security letters. But as I understand it, they have an automatic non-disclosure requirement. So here again, it is not unprecedented. We already have a precedent of something that isn’t optional, but is required, and further has no provision for judicial review. 

So if national security letters are fine, then why would something 

that is less than that create some precedent? 

Mr. ROBINSON. I think that is another topic and I think that that 

is an example of a very targeted, narrow area requiring a high 

level of approval. We are now talking about, as I understand it, unless there are provisions that I haven’t been carefully looking at, 

basically giving subpoena power to case agents who need not talk 

to Assistant U.S. Attorneys necessarily and who can make a decision to require a forthwith subpoena to be answered, and not just 

to deliver documents, as I understand to be the national security 

letters, but to also, at least in the Feeney proposal but not—and 

I compliment you, Senator, in yours—these full-scale interrogations. That could be very troubling, and I think that is a particularly troubling approach. 

Chairman KYL. Of course, we do not include that in ours. It is 

only the custodian of the document kind of appearance that is required. 

Mr. ROBINSON. I compliment you for that change. I did say in my 

testimony I was a little uncertain as to the language that appears 

to come from the Feeney proposal that deals with the broader— 

15

Chairman KYL. I noted your question in that regard and because 

clearly my intent is the same as yours here, perhaps we can collaborate on language to reflect the point of view you have there. 

We need to get into the other subject, too, and I don’t mean to 

ignore you, Mr. Battle. But since we are on the subject of administrative subpoenas, Rachel Brand, can you comment a little bit on 

some of the points that have been made here with respect to the 

need for secrecy? 

In fact, before I ask you to do that, I presume, Mr. Robinson, 

that in terrorism cases you would acknowledge that there certainly 

are some cases where there is a need for quick action and secrecy. 

The question is how do we deal with that. 

Mr. ROBINSON. I certainly agree there is a need for quick action 

and for secrecy, and I think there are a lot of tools to get at that. 

I commend the Senator for looking at other ways to do it as long 

as we do this careful balance that we are all concerned about. 

Chairman KYL. Right. 

Ms. Brand. 

Ms. BRAND. Thank you. A couple of points. I would just like to 

clarify first of all that nothing in the bill gives line agents the authority to do anything. The authority is given to the Attorney General, which is typical in administrative subpoena authorities. 

In other contexts, such as in the drug administrative subpoena 

context, that authority has been delegated down to the level of supervisory special agent, but it has not been delegated down to the 

level of line agent. So I just wanted to clarify that. Presumably, the 

delegation level for this proposal would be taken care of in AG 

guidelines which would be issued after the bill was passed, if it 

were. 

In terms of the forthwith subpoena point, the bill provides that 

a reasonable time shall be given to respond. And it is important to 

remember that the usefulness of administrative subpoenas, which 

is speed, pertains mostly when the recipient is willing to comply. 

Obviously, if the recipient is not willing to comply, he can refuse 

to comply and no sanction whatsoever attaches to the mere refusal 

to comply with the subpoena. Or he can file a motion to quash, in 

which case the speed would go out the window. But in most cases 

where recipients are willing to comply, the ability to issue a subpoena is very useful. 

In terms of the need for secrecy, first of all, it is not unprecedented. One type of grand jury subpoena, for example, under the 

Bank Secrecy Act contains or carries a non-disclosure obligation. 

There are other administrative subpoena authorities that have 

other types of non-disclosure obligations that attach to them. 

But in terrorism investigations, or really in any investigation, 

disclosure of the facts of the investigation can cause flight from 

prosecution, intimidation of witnesses, destruction of evidence, and 

so forth. That is especially true in terrorism investigations. I know 

that Mr. Battle has faced issues like that, especially in his Lackawanna Six prosecution. And as you pointed out, the secrecy obligation is not automatic. It only is triggered if the AG certifies that 

disclosure would endanger the national security. 

Chairman KYL. I need to go back and review what we did with 

respect to guidelines. I certainly agree that guidelines are required 

16

here. The question is how they would be done and if we haven’t 

made it clear enough how guidelines would be produced, again I 

would appreciate any suggestions on how that would be done. 

Mr. ROBINSON. I think it would be helpful to have some guidance 

with regard to how far down this actually would go in terms of authority. I certainly agree with Rachel that the Department has, I 

think, over the years done a very good job of making sure that the 

power that it has been given has been carefully utilized. 

Indeed, I testified on proposals to amend the grand jury system 

and to reform it, and I opposed that because I think the Department has done a good job internally. But I worried a little and I 

may have misunderstood, but I understood, for example, in Ms. 

Brand’s testimony that there was a contemplation that this would 

be available to case agents under difficult, exigent circumstances. 

And if that is not intended, then— 

Chairman KYL. But if I understand it, the authority is to given 

to the Attorney General, who presumably would develop the guidelines under which the authority would be given. Is that correct or 

is that incorrect? 

Ms. BRAND. That is correct, as in the drug context, those who are 

in the field with the case agents, but who are at a higher level of 

supervisory authority. 

Chairman KYL. Let me ask one last question and then the next 

round I will go into other legislation. We talk about grand jury, 

but, Mr. Robinson, I did want to at least ask if you would concede 

that when we talk about a grand jury subpoena, that is a subpoena 

issued by a Federal prosecutor. It is not issued by the judge or by 

the grand jury; it is just issued by the prosecutor pursuant to the 

proceedings that are then pending. 

Mr. ROBINSON. Well, actually, no. The grand jury does issue the 

subpoena. The prosecutor asks for it, but the grand jury has to give 

it, and we like to think it isn’t just a lip-service process. But I think 

you are right. There is a very close involvement by prosecutors. 

Chairman KYL. Right. 

Mr. ROBINSON. But they can’t issue them on their own. 

Chairman KYL. No, but I guess the point is if the grand jury isn’t 

around, he doesn’t get to issue the subpoena and therein one of the 

concerns we have about the timing issue here. 

My time is up, but I will come back to a second round. Let me 

turn to Senator Feingold. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

This has already been alluded to, but Ms. Brand, the Kyl and 

Feeney bills for administrative subpoenas differ in at least one important way. Representative Feeney seeks to allow the use of administrative subpoenas for both the production of documents and 

for acquiring the testimony of possible witnesses. Now, Senator 

Kyl’s bill seeks to extend the power to cover only the production of 

documents. 

Which of these bills, if either, accurately reflects the administration’s position on what administrative subpoena power is necessary 

in terrorism cases? 

Ms. BRAND. We support the bill that Senator Kyl has introduced 

that does not contain the broad witness testimony provision. The 

authority that we are after that we really think is necessary is the 

17

authority to subpoena documents. My understanding is that other 

subpoena authorities that allow for the subpoenaing of testimony 

of witnesses are used in a civil context. Even though by the statute’s terms they appear to be available in the criminal context, 

they are not used in the criminal context, and we don’t feel that 

authority is necessary. 

Senator FEINGOLD. Thank you for that answer. Ms. Brand, time 

and time again administration officials offer a similar scenario to 

explain why the power of administrative subpoenas should be extended to anti-terrorism investigations. Late at night, in the middle 

of nowhere, with no Assistant U.S. Attorney available, the FBI 

wants to get records from a business about purchase of bomb-making materials. So it appears that the need to obtain records immediately is the main reason for seeking administrative subpoena 

power. 

If immediacy is truly the reason for bypassing the grand jury 

process, then why is there no language included in either the 

House or Senate legislation that limits the exercise of the power to 

exigent situations instead of granting this broad and unchecked 

power to Federal law enforcement effectively 24 hours a day, 7 

days a week? 

Ms. BRAND. Most other administrative subpoena authorities—in 

fact, I only know of one that contains such a limitation, the one 

that Mr. Robinson alluded to earlier. Most other subpoena authorities, such as the ones available in health care fraud investigations 

and sexual abuse investigations and drug investigations, do not 

contain that limitation. Terrorism investigations are much more 

likely—really, every terrorism investigation involves some exigent 

circumstance. I don’t think that kind of limitation is necessary. 

Senator FEINGOLD. In light of the fact that this has to do with 

a situation where immediacy is required, what would be the harm 

of having some kind of an intermittent review instead of this kind 

of open-ended—in the spirit of Senator Kyl’s attempt to get this 

language right? 

Ms. BRAND. I am not sure why the provision in 18 U.S.C. 3486 

dealing with Secret Service protectees contains the immediacy limitation that Mr. Robinson alluded to. But when you think about exigent circumstances, putting into the law additional approval requirements only slows things down. So an immediacy requirement 

would have the perverse effect, I think, of slowing things down in 

a case in which immediacy is the rule. 

Senator FEINGOLD. Mr. Robinson, would you like to respond to 

that? 

Mr. ROBINSON. Well, on the subject of slowing things down, I 

suppose one could say that the Bill of Rights sort of slowed things 

down, and does occasionally, but it was intended to do that. And 

it seems to me that if indeed the real motivation for the administrative subpoenas is that there is some kind of exigent circumstance, immediacy—that is what has been offered up as the 

reason for it—then I am not sure I understand why requiring such 

a certification as exists with regard to the Director of Secret Service in their administrative subpoenas wouldn’t make sense. 

The thing that I would worry about, frankly, and I would worry 

about it as a prosecutor, is that these administrative subpoenas 

18

would be utilized in lieu of a grand jury because it is easier because you don’t have to go both an Assistant U.S. Attorney who 

might be troublesome about things like the guidelines and whether 

you are following the rules. 

There is this tension that exists, as all the prosecutors in the 

room will know, between agents and prosecutors in this area. It is 

a healthy tension, it seems to me. It makes Federal criminal investigations much more credible and effective, and in the end it makes 

sense. 

I think we have seen examples of situations in which, when that 

close working relationship has broken down, we have had problems. I think most recently the wall that was, I think, broken down 

in the FISA area between prosecutors and investigators in national 

security cases is a good example. 

When I was Assistant Attorney General, this was a battle. Those 

of us in the Criminal Division wanted access to that information, 

though we could be helpful in conducting those investigations without violating the FISA statute. And I think ultimately it was determined that that barrier was a good thing to kind of lower. 

I think the danger that I would worry about with a widespread 

administrative subpoena process where the agents don’t have to go 

to the prosecutors and deal with this is that even in non-exigent 

circumstance cases, you would have this being used in lieu of going 

through the grand jury process that has a lot of checks and balances associated with it and where the courts have understood 

that, for example, you have a lot of protections that come from a 

grand jury system. That is what worries me a little bit. 

Senator FEINGOLD. Well, I appreciate that answer because, as I 

indicated in my question to Ms. Brand, the whole basis for this is 

the need for an immediate opportunity to get at some information, 

and I understand that. But then the failure to have some kind of 

limitation on it after the fact sort of undercuts the credibility of the 

notion that this is only based on the need for immediate information, and it confuses me. 

In fact, it reminds me of the same problem under the sneak-andpeek provisions of the USA PATRIOT Act. Most of us don’t want 

to get rid of the sneak-and-peek provisions completely, but the resistance to having a renewal every 7 days by a judge of the authority to be able to do something so extraordinary in light of the 

Fourth Amendment puzzles me. Why can’t we have that kind of review once the urgency of the situation dissipates so that the case 

can be made again? 

Frankly, Mr. Chairman, this is a big part of the problem in dealing with this issue. I think you, in good faith, are trying to get this 

right, but it undercuts the credibility of those who want the broader provisions if they won’t listen to common-sense ways in which 

this can be tailored to meet the problem that has been the basis 

for why they seek the greater powers. I think this is an important 

thing so that, frankly, we can make joint progress on getting this 

right, which is exactly what I want to do. 

Mr. Robinson, you mention in your statement that the Supreme 

Court has previously noted that there are important safeguards 

present in the grand jury system. These safeguards would not be 

present when using tools like administrative subpoenas. Would you 

19

expand on the safeguards in the current grand jury system and 

why they are so important? 

Mr. ROBINSON. Well, a couple of things. Some of my written testimony was directed to Representative Feeney’s proposal, which I 

think was very troublesome, and I am delighted that Senator Kyl 

has seen the wisdom of not going that far. 

For example, I have pointed out that it has not been found by 

the Supreme Court necessary to give the Miranda warnings in a 

grand jury setting, even though the witnesses there are under compulsion with a subpoena. If you don’t talk, you can be held in contempt of court unless you assert your Fifth Amendment privilege. 

But, nevertheless, the Supreme Court says that is a setting in 

which we have an independent citizen grand jury present; we have 

a transcript, we have a record; we don’t think you need to give the 

Miranda warnings there. 

In the proposal by Congressman Feeney, if you were to allow secret interrogations pursuant to administrative subpoenas, I think 

you would have a serious constitutional issue there, and the Supreme Court has commented on that. 

I would also say that my comments are directed toward the fact 

that the Department of Justice has a chapter in the U.S. Attorneys 

Manual dealing with grand jury process and guidelines and who 

you subpoena, when you subpoena, the appropriateness of subpoenaing people. There is a policy on forthwith subpoenas that requires the approval of the United States Attorney before an Assistant U.S. Attorney can issue a forthwith subpoena. 

The Federal courts have expressed serious criticism and concern 

about the issuance of forthwith subpoenas. And as I understand 

the principal motivation for this proposal, it is to allow agents to 

issue forthwith subpoenas. And so this is an area that just needs 

some care, it seems to me. I think the seasoned judgment of skilled 

Federal prosecutors, people like United States Attorney Battle and 

others, is important in this process. 

I worry that the proposal is going to create an end-around this 

system of careful checks and balances and it won’t be limited to 

these exigent circumstances. I mean, case agents want to get the 

job done and if they don’t have to walk across the street and talk 

an Assistant U.S. Attorney into something, they are going to go 

and do it themselves. And I don’t criticize them for it. That is their 

job, that is what they are supposed to do. 

But I think we have a system that says you talk to the AUSA, 

you deal with the policies that are involved, you work together on 

these investigations. I am sure Mr. Battle has duty assistants who 

are available 24/7, who have beepers on. You know, they are available, they are in the trenches fighting the war on terrorism. They 

should be there helping to make these critical decisions so that 

when they get a good case, they do the kind of job they did and 

I compliment them for in the Lackawanna case and others, and get 

an effective prosecution, one that is going to stand up and stand 

the scrutiny of appellate review. 

Senator FEINGOLD. Mr. Chairman, I think my time may be up. 

Chairman KYL. Let’s go to 5 minutes now, so we will just go back 

and forth, if you want to do that. 

Senator FEINGOLD. Sure. 

20

Chairman KYL. We will just do five-minute rounds. 

I promised, Mr. Battle, I would get to you next. I just find it incredible that the statutes list a series of alleged criminals for which 

there is a presumption for detention because of the probability of 

flight or of some other problem, and yet terrorists are not on that 

list. I mean, that is such an incredible—well, presumably the statutes were written way back before we were concerned with terrorists, or I am sure that terrorists would have been number one on 

that list. This disparity makes absolutely no sense to me, and you 

made the point that it could be very important in certain kinds of 

cases for terrorists to be added to that list. 

Mr. Robinson, I don’t recall reading in your testimony specific objections to this, but I honestly am not certain whether you had objections so let me just ask you straight out whether you do. 

Mr. ROBINSON. I prepared my testimony starting last Friday and 

I have looked at this provision as well. I just didn’t feel sufficiently 

comfortable to express a strong opinion on the subject of the proposal. I haven’t had a chance to study it with great care. 

Chairman KYL. Okay. 

Mr. ROBINSON. I mean, I— 

Chairman KYL. If you—I am sorry. Go ahead. 

Mr. ROBINSON. My only point would be that I was pleased to see 

that Mr. Battle, notwithstanding the absence of these provisions, 

did an effective job of making sure that the people who were accused in his district stayed in custody during those proceedings. 

But I am just not in a position, I think, to have a careful view 

of it. I think there are some issues that are worth exploring, and 

I would be happy to mention a couple of those if you would like,. 

Chairman KYL. Well, I think it would be worthwhile if you have 

a chance. I don’t want to make any more work for you, but we can 

leave the record open and any views that you have that you would 

like to express to us, I am sure we would both like to receive them. 

You might respond to the specific—and I noted the same thing; 

in the first example Mr. Battle gave, he said, yes, we got it eventually, but it took three weeks of hearing where we had to disclose 

a lot of information that we would have much preferred not to have 

disclosed. 

If you want to expand on that, Mr. Battle, perhaps that would 

help lay a greater foundation for this discussion. 

Mr. BATTLE. Thank you, Senator. Senator, you mentioned in introducing me that in a prior life I was an Assistant U.S. Attorney. 

And in that prior life, I prosecuted drug defendants and we had the 

presumption and it worked very well. It was clear there was a recognition by Congress that at that time those types of defendants 

presented the kind of problem in our country and in our communities that it was necessary for us to have that type of tool. Obviously, you have alluded to the fact that no less such a tool should 

be necessary in the context of fighting terrorism. 

But the point is in the Second Circuit, we are allowed to proceed 

by proffer in detention hearings, and in that context the focus of 

the hearing is really on pre-trial release or detention. In our case, 

two things happened to us that caught us completely by surprise. 

One, the attention of the issues shifted to the question of whether 

or not the statute that we were prosecuting these defendants under 

21

was constitutional, which we should never have had to deal with 

at that point in the proceedings. 

In some sense, while I won’t minimize the need for discussions 

about the strength of the Government’s case, we had to go well beyond what I had ever experienced in presenting to the court that 

which we knew about our case, much of which we wanted to hold 

close to the vest because the Lackawanna Six case was actually the 

Lackawanna Eight and we had two defendants who had already 

fled the country. 

So we were put in a real position of jeopardy of having to continue to disclose. And because the court could not start with a presumption that then would shift the burden to defendants to come 

forward and discuss matters related strictly to the matter of release or detention, but we got into all these other focuses, it put 

our case in jeopardy and it put our agents in jeopardy. 

Chairman KYL. I appreciate that. Let me go back to the question 

of constitutional issues that have been raised to ask both Ms. 

Brand and Mr. Robinson, are either of you aware of any case in 

which the use of administrative subpoenas has been found a violation of the Fourth Amendment? Does the court uphold the existence of that authority? 

Ms. BRAND. Thank you. The Supreme Court has held—I am forgetting the year of this decision—that administrative subpoena authorities do not require a probable cause standard, that a relevance 

standard is sufficient under the Fourth Amendment. So, no, the 

Supreme Court has never held that an administrative subpoena 

authority like the one here violates the Fourth Amendment. 

The Sixth Circuit in an opinion specifically discussing 18 U.S.C. 

3486, which is the health care fraud/sexual abuse of children provision, took Supreme Court precedents to hold that that provision 

also did not violate the Fourth Amendment with its relevance 

standard. 

Chairman KYL. Thank you. 

Mr. Robinson, are you aware of any other different case? 

Mr. ROBINSON. No. I think that is right. I am not so sure you 

could predict the same result under Congressman Feeney’s proposal necessarily, but it may not get tested in light of your proposal. 

Chairman KYL. We will hope to make ours the one that works 

and then we won’t have that constitutional issue to worry about. 

Senator Feingold. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Let me just say to Mr. Battle I was going to ask you a question 

along those same lines about the Lackawanna Six. You know, I am 

listening carefully about the claims you are making about the problems that this caused for the Government in the disclosing of information, and so on. But I would simply note for the record that this 

proceeding, in part to your skills and others’, was very successful. 

All the defendants pled guilty and as a part of the plea agreements, all the defendants agreed to fully cooperate with the Government. So I can’t help but at least note for the record that the 

current system seemed to perform pretty darned well in this circumstance. But I do take seriously the specific points you made. 

22

Now, let me ask you something different. In both the Senate and 

the House legislation on pre-trial detention, the definition of terrorism includes an offense that, quote, ‘‘appears by its nature or 

context to be intended to intimidate or coerce a civilian population, 

to influence the policy of a government by intimidation or coercion, 

or to affect the conduct of a government by mass destruction,’’ unquote. 

These definitions seem to be broad enough to include the types 

of protests that regularly occur in cities across this country. For example, many types of loud and angry protests like those that sometimes occur surrounding WTO meetings, property damage protests 

such as those committed by members of animal rights groups, and 

right-to-life protests where members make a human barricade between the street and the abortion clinic might conceivably be covered by this definition. 

The Attorney General would have the final word on which participants of which political protests could be detained under this 

proposal. Does the Justice Department really intend to cover political protests in this legislation? Do you see any First Amendment 

problems with this definition? 

Mr. BATTLE. Thank you, Senator. Senator, in our district there 

is a line of cases that we deal with under a project called EXILE, 

and that deals with gun prosecutions where we partner with local 

law enforcement when we bring cases in the Federal context to get 

sort of more bang for our buck because the statutory scheme allows 

us to put criminals in jail for longer periods of time for more serious crimes than some of the State statutory schemes allow. 

In that context, one of the hammers that we have in the Federal 

system is that we have a better shot at pre-trial detention of those 

defendants than they have had success with at the State level. But 

the policy that we have in our office is never to seek pre-trial detention except in the most appropriate cases, and what that means 

is we don’t ask for it in the cases unless, from a factual standpoint, 

they fit within what the statute requires in a request for pre-trial 

detention. 

So in response to your question, what I would say is this: We 

would ask for pre-trial detention in the appropriate cases depending on the defendant. The focus in pre-trial detention is on the defendant and the facts and circumstances that support such. 

You may have a defendant that you have described that falls 

under the definition of international terrorist for which we may 

move the court for pre-trial detention. We want the ability to do 

so because in certain circumstances there may be a risk of flight 

and certainly very much a danger to the community. 

Senator FEINGOLD. I appreciate the answer, but it struck me that 

you seem to be suggesting how you would use the powers that are 

given. What I was more getting at is the language itself and the 

potential scope of the language in the hands of those who may not 

be as responsible. Doesn’t that give you some concern? 

Mr. BATTLE. Well, if I understand your question, I thought you 

said that the power would lie in the hands of the Attorney General. 

But actually the power to detain would lie in the hands of the court 

and the recommendation of whether or not someone is detained 

would happen at the earliest stages of a proceeding when a defendVerDate 0ct 09 2002 08:59 Oct 01, 2004 Jkt 000000 PO 00000 Frm 00026 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\96107.TXT SJUD4 PsN: CMORC
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ant is charged. The issue of pre-trial detention is not visited until 

some time after the arraignment or the initial appearance. 

Senator FEINGOLD. Wouldn’t you concede that this is something 

of a broadening of the flexibility here, that the AG would only certify this? 

Mr. BATTLE. I am not sure I understand your question, Senator. 

Senator FEINGOLD. The Attorney General certifies that the crime 

is the type for which the presumption is appropriate, but isn’t it 

somebody else who makes the specific decision about who could be 

detained? 

Mr. BATTLE. The specific decision about detention, from my experience in the field, lies with the magistrate judges and the judicial 

officers in the Federal system. The statutory scheme that covers 

pre-trial detention covers a broad range of criminal activity, which 

we hope will now include statutes that involve terrorism. We use 

it for drug dealers, we use it in gun cases, we use it in violence 

cases, we use it in child pornography cases and others of the most 

serious nature. 

Senator FEINGOLD. Mr. Battle, you also cited the case of Mr. Asi, 

who was originally arraigned in 1998. I understand that Mr. Asi 

turned himself in to Federal authorities last month. At the more 

recent 2004 bail hearing when the Government argued that Mr. 

Asi should be detained, Mr. Asi agreed. 

Are you suggesting that Magistrate Morgan made the wrong decision in 1998? Do you know if the Government appealed the detention ruling, and have you personally reviewed the transcript of the 

proceeding? 

Mr. BATTLE. Senator, apologetically, I do not have as much detailed information as it seems you have about that case. I don’t 

really wish to comment about it at this time. 

Senator FEINGOLD. Well, do you have any instances where the 

system has failed us involving a pre-trial detention hearing since 

Mr. Asi’s original pre-trial detention decision in 1998? 

Mr. BATTLE. Was your question do I have any— 

Senator FEINGOLD. Do you have any instances where the system 

has failed us? 

Mr. BATTLE. None that I am aware of. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Chairman KYL. Mr. Robinson might want to add something. 

Senator FEINGOLD. Mr. Robinson? 

Mr. ROBINSON. I was just going to offer a point of very modest 

personal privilege that Magistrate Morgan was an Assistant U.S. 

Attorney of mine when I was U.S. Attorney and I just vouch for 

her. I think she is an outstanding Federal magistrate judge. I 

haven’t read the transcript of that proceeding, but I know she is 

diligent and does an effective job. 

I was going to just offer one point. I have read the bail decision 

in Mr. Battle’s case and I think it looks to me to be very carefully 

and thoughtfully done. I think the one incidental benefit that is 

worth keeping in mind in terms of the integrity of our criminal justice system is for neutral magistrates to be making decisions in 

this area. 

I don’t weigh in on this presumption issue yet and I will be 

happy to get back to it, but I do think the fact that our criminal 

24

justice system gives the power to an independent judiciary to make 

the bail decision, which is after all a constitutional right in this 

country, is worthwhile as we look around the world. And we can 

proud of the fact that when we incarcerate people who are presumed innocent in our system, we do it through a process. Sometimes, it takes longer than we might like, and I know the bail process Mr. Battle referred to was lengthy. But nevertheless I think it 

is something that we can point to with pride and we should be 

mindful of that. 

I would also just offer again the notion that in some of these terrorism cases, there is a problem—and I am sure Mr. Battle from 

his former life as a defender will appreciate it—that much of the 

evidence in these cases is derived and procured by the Government. 

It is classified, and therefore the Government has most of the information in many of these cases, which would make it difficult sometimes for lawyers representing people accused in some of these 

cases to do an effective job of dealing with the presumption. It is 

just a factor. 

As I say, I haven’t decided myself because I haven’t studied it 

carefully enough, but these are just a couple of thoughts that occurred to me in response to your question, Senator Kyl. 

Chairman KYL. I just want to reiterate what we are talking 

about here in case anybody has missed it. There is a whole list of 

crimes in which, when a judge or magistrate makes the decision of 

whether to hold the person without bail because the person is likely to flee, for example, or could pose a danger to people—there is 

a whole list of provisions in the Code today that say the presumption is that because of the nature of that crime, is the defendant 

that, in effect, has the burden of proof that he is not going to flee 

and therefore shouldn’t be held. In most cases, it is the Government’s burden of proof that he is more likely to flee, and therefore 

the bail should be set very high or shouldn’t be granted. 

All we are doing is adding terrorism to that list in which the burden shifts. The arguments are still made by lawyers to a judge, 

who makes the decision based upon constitutional principles. And 

all we are doing is saying that of all crimes in the world in which 

there ought to be a presumption that you might have a problem 

with this person fleeing or causing a problem, it is in a terrorist 

case. That is all this legislation seeks to do. So I just wanted to 

make that clear. 

I wanted to ask Rachel Brand about the substantive differences, 

really, if there are any, between grand jury subpoenas and administrative subpoenas. In other words, assuming that the Attorney 

General develops good guidelines that apply to the FBI, why should 

we fear more about an administrative subpoena issued here than 

a grand jury subpoena, which, of course, are issued all the time—

I shouldn’t say all the time, but are a frequently issued subpoena. 

Ms. BRAND. Thank you. The standards are essentially the same. 

So, substantively, the two are essentially the same. They both are 

based on a relevance standard, both grand jury subpoenas and almost all administrative subpoenas. 

Mr. Robinson suggests that the FBI agents are more suspect, essentially, than Assistant U.S. Attorneys. I would welcome Mr. Battle’s comments on the relationship between most U.S. Attorneys’ ofVerDate 0ct 09 2002 08:59 Oct 01, 2004 Jkt 000000 PO 00000 Frm 00028 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\96107.TXT SJUD4 PsN: CMORC
25

fices and most FBI field offices, but I don’t think most prosecutors 

hold the view that the FBI lacks the professionalism required to 

utilize this authority responsibly. 

Like the U.S. Attorney Manual provisions that Mr. Robinson alludes to, the FBI also has its own internal guidelines for the use 

of the existing administrative subpoena authorities which point out 

that they should be used sparingly and give other types of guidance 

about the legality of their use. So I don’t think there is any substantive difference between the two. 

Chairman KYL. And the person to whom the subpoena is issued 

can hire counsel? 

Mr. BRAND. The recipient can move to quash or can simply 

refuse to comply, right. 

Chairman KYL. Exactly. 

Mr. Battle, would you like to comment on this? 

Mr. BATTLE. Senator, if I could just interject, I don’t want to 

leave this hearing today with the thought that U.S. Attorneys or 

Assistant U.S. Attorneys are in any way opposed to the FBI agents 

having this subpoena authority that we are discussing in great detail today. 

I can tell you that at one point in the Lackawanna Six case, as 

I said, we started out with eight and it was a weekend when we 

obtained the complaint from the Federal judge to arrest them on 

a Friday evening. On Saturday morning, I was en route to Washington to engage in some matters related to the case and I was 

traveling with the FBI agent in charge of the Buffalo office. The 

agents were back in Buffalo attempting to round up the six that 

we knew were in the Buffalo area, and we learned as we boarded 

the plane that they had five of the six in custody. Two, we think, 

were abroad, and one was somewhere; we didn’t know where that 

person was. 

The agents were in the field. It was a Saturday morning. My office was closed, the courts were closed, and I would like to think 

that an FBI agent in the field would have had the authority, if necessary, to exercise the appropriate power and, if necessary, have 

the power to get an administrative subpoena to gather evidence to 

find the individual that we could not find that we believed was still 

in the States and in our community. Ultimately, we did find that 

person because of good police work, but that is something that 

could have presented a problem for us. So I just don’t want that 

to get lost at this time. 

Chairman KYL. I appreciate it. 

Senator Feingold. 

Senator FEINGOLD. Mr. Chairman, I just have one more question 

today. 

Mr. Robinson, the proposals for a new administrative subpoena 

and for new pre-trial detention rules would vest more powers in 

the hands of the administration and take power from the courts 

and grand juries. This seems to be part of a pattern for this administration. 

Do you think that giving the Attorney General and law enforcement more and more authority at the expense of the courts is a 

positive trend and bodes well for the fight against terrorism and 

for constitutional protections? 

26

Mr. ROBINSON. I think I would have to say not necessarily, and 

you have to look specifically at the provisions. But let me take this 

opportunity to say that I have nothing myself but the highest regard for FBI agents and have worked closely with them. Director 

Mueller was a colleague of mine at the Justice Department. I have 

high regard. He held the job that I held there. One of my colleagues in my current law firm is the former Deputy General Counsel of the FBI. 

It is important to recognize that the roles of FBI agents and Federal prosecutors are different, and I think the system recognizes 

that. I am talking about a cooperative relationship that is important. Many FBI agents are lawyers; they are skilled lawyers. Many 

are not. Many of them are familiar with Federal criminal law and 

the provisions of the United States Attorneys Manual. 

As we go forward with looking at these proposals, I think it is 

important to have these guidelines in place to make sure that we 

don’t create a parallel system that doesn’t end-around this process. 

I don’t think it will help law enforcement in the end. This is an 

honest disagreement, but I think it is a factor to be taken into consideration as we move forward in creating something that could be 

a very different method of operation than we have been familiar 

with. 

I know 9/11 has changed everything and it certainly requires us 

to consider ideas like this, and I think it is appropriate. I congratulate the Chairman for making this kind of a proposal and for the 

willingness to consider these competing ideas and coming up with 

the kind of legislation that will be a real aid to law enforcement 

in the fight on terrorism, which is something that we certainly all 

share as a goal. 

Senator FEINGOLD. Thank you. 

Chairman KYL. Thank you, and I want to thank all of you. 

Would either of the other two witnesses like to make any comments in closing? 

I want to express my appreciation to you for supporting my legislation, by the way, and expressing that. 

Mr. Battle, did you have anything else that you wanted to add? 

Mr. BATTLE. Mr. Chairman, I would just like to say thank you 

for allowing me to testify. 

Chairman KYL. I just want to conclude by making this point. 

Senator Feingold and I are in complete agreement on two things; 

they are very general propositions. The first is that we have got to 

do our best in this war on terror, as well as fighting other criminals. And we also have to adhere to our Constitution and ensure 

that everyone is treated with the utmost of fairness. Within those 

two broad agreements, there will necessarily be some disagreements. We aren’t good lawyers if we wouldn’t find some way of disagreeing with each other about precisely how to go about doing 

this. 

It is my intention in pursuing both of these pieces of legislation 

to get it right, but to get it; in other words, to ensure that we have 

given every tool that can be given to our law enforcement authorities, not in any way that it can be abused, but because of the nature of our enemy. 

27

It just seems to me that when you can get records with an administrative subpoena in a health fraud case, you ought to be able 

to do that in a terrorism case. If you can hold a drug dealer, you 

ought to be able to hold a terrorist. So these seem to me to be pretty minimal approaches that nevertheless could be helpful. 

I think the point was made that it might be relatively rare, but 

I remember another case that was rare when Agent Rowley complained about the fact that she couldn’t get the lawyers back at 

headquarters to issue a subpoena to go into Zacarias Moussaoui’s 

computers. I actually had to agree with those who defended the decision that they didn’t want to seek the FISA warrant because I 

didn’t think they could get it because he didn’t technically meet the 

definition of a person against whom such a warrant could be 

issued. 

Now, some people thought otherwise, but I think the law was 

clear enough that that would not have been granted, which is why 

we here in the Senate passed a fix to that that would have covered 

a case like Moussaoui as well. That bill unfortunately languishes 

in the House of Representatives right now. 

It just seems to me that, therefore, there are consequences to our 

actions if we don’t use every tool that is available. And as long as 

they are constitutional—the courts have declared these kinds of 

procedures constitutional—we ought to be as aggressive as we can 

in dealing with this particular kind of enemy, while always asking 

the tough questions, the double and triple checking that people like 

Senator Feingold will always do to ensure that we do it right. 

We are going to hold the record open for questions until next 

Tuesday at 5:00 p.m. I would also invite the witnesses, if they 

would like to add anything to their testimony, they are certainly 

welcome to do that. 

Senator Feingold, I really express my appreciation to you for 

being able to be here today. 

Senator FEINGOLD. Thank you. 

Chairman KYL. Let me just say one other thing. I will make 

available for the record, and to give to you, Senator Feingold, right 

now, at least 12 hearings covering the PATRIOT Act. We have 

tried to hold oversight over that PATRIOT Act, some of which has 

been very explicit and thorough. Others have touched on it in one 

way or another. 

Senator FEINGOLD. Well, Mr. Chairman, let me just say that I let 

it go the first time you said it, but I don’t believe my comments 

had to do with the Committee not holding hearings. 

Chairman KYL. I misunderstood that. 

Senator FEINGOLD. My comments had to do with the fact that the 

administration has not responded to Senators’ letters requesting 

information, which I find deeply disturbing. 

Chairman KYL. I apologize. I misunderstood. 

Senator FEINGOLD. I am aware of this list and I have probably 

been at almost every one of those. 

Chairman KYL. Yes. I misunderstood. 

Senator FEINGOLD. I appreciate your efforts and my point was 

not directed at you at all. 

Chairman KYL. We will keep holding oversight hearings. 

28

Again, I thank all of the witnesses. This was a very good hearing 

because we had very good witnesses, and we appreciate the interest of all of you in the audience. 

The hearing will be adjourned. 

[Whereupon, at 4:03 p.m., the Subcommittee was adjourned.] 

[Submissions for the record follow.]

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