Date: 2005-06-27
Speaker: DANIEL E. LUNGREN (republican)
Chamber: H
State: Cali

fornia. Mr. Speaker. I thank the gentleman and commend him for having this Special Order. When we talk about homeland security. we have to talk about those investigative techniques that are necessary for us to be able to forestall terrorism. terrorist attacks on our homeland. and one of the points I would like to make is prompted by comments that aids to the ranking Democrat on the Committee on the Judiciary of the United States Senate said that he would introduce legislation aimed at limiting the governments ability to detain material witnesses indefinitely. The reason I mention this is that this is just a part of an overall criticism of this technique of the investigative community. As a matter of fact. the New York Times recently described it this way: that we. that is the Federal Government. are "thrust into a Kafkaesque world of indefinite detention without charges. secret evidence. and baseless accusations." Dozens of people. some were held for weeks and even months and the majority were never even charged with a crime. The Times seethes. did "the Bush administration twist the American system of due process." An interesting article appeared today in the National Review by Andrew McCarthy. who is a former Federal prosecutor who has actually prosecuted some of the major terrorist cases in this country. that aptly responds to these criticisms of this effort by the Federal law enforcement community. He says. In point of fact. material witness detentions have been with us for decades pursuant: to duly enacted law. that is. section 3144 of title 18 of the U.S. Code. They were.used countless times prior to 9/11. Hysteria aside. it should come as no surprise that these are detentions without charges since by definition the person being detained is being detained as a witness. not being charged with a crime. What would require baseless accusations would be to hold such a person as a defendant. which is precisely what the government refrains from doing in detaining on material witness law. The proceedings. moreover. involve secret evidence only in thesense that all proceedings before the grand jury. whether they involve terrorism. unlawful gambling or anything in between. are secret Under Federal law. The left of course well knows that when investigative information about its champions seeps into the public domain. it routinely complains about the reprehensible violation of grand jury secrecy rules. a useful diversion from dealing with the substance of any suspicions. Mr. McCarthy goes on. There were many. many people.who were identified in that investigation of having had some connection or another with the 19 suicide attackers and their al Qaeda support network. Some of those connections seem intimate. some attenuated. but all of them had to be run down. Just imagine what the 9/11 Commjssion would have said if they had not been. So here is the problem. says Andrew McCarthy. You identify a large number of people who at a minimum have information that might be vital to protecting against terrorist attacks and who might in fact be terrorists or at least facilitators. It is very early in the investigation. so you do not have sufficient evidence to charge them with a crime or to say conclusively either that they are not dangerous or they are willing to tell you what they know rather than flee. What do you do? It would be irresponsible to do nothing. but you cannot watch these people 247. There are not anywhere close enough agents for that. Well. the law does not require you to do nothing. The law which existed before 9/11 but used here permits the government to detain people for a brief time in order to compel their information either in the grand jury or some other court proceedings. Contrary to what you might think from the latest spate of coverage and from the comments to aides of the ranking member of the Judiciary Committee on the Senate side. the government may not sweep innocent people up and hold them in secret. While grand jury proceedings are supposed to be kept from the New York Times. for instance. they are not kept secret from the court. A prosecutor has to go to court and get a material witness arrest warrant. This means the arrest does not happen unless the government satisfies a Federal .judge that there is a reasonable basis to believe. A. the person at issue has information that would be important to an ongoing investigation and. B. the person might flee without providing that information to the grand jury or the court unless the person is detained until his testimony can be secured. And that is not all. Mr. McCarthy goes on to tell us the arrested witness. even though he is not being charged with a crime. is given the same kinds of protections that are afforded tq actual defendants. The witness must promptly be presented upon arrest to a judge so that a neutral official can advise him of.why he is being held. More significantly. counsel is immediately appointed for him at public expense if he cannot afford an attorney. Indeed. if he is a foreign national. the United States is obligated by law to advise him that he is right to have his consulate advised of his arrest: And frequently the consulate will not only obtain counsel on behalf of its citizen but will also closely monitor the case. including by demands for information from the U.S. State Department. The lawyer is given information about why the witness is being detained. Counsel is permitted to be present at any interview of the witness by the government. And although counsel is not permitted to accompany the witness inside the Federal grand jury. no witness. material or otherwise. has that right. the government is not permitted to interview the witness outside the grand jury unless counsel allows it. In addition. at any time during the course of the detention. counsel is permitted to make a bail application to the court. and if the judge is satisfied that the bail offered vitiates the risk of flight. the witness is freed on the promise to appear for his testimony. Furthermore. if at any point the" length of detention or the condition of the witnesss confinement actually offend the witnesss fundamental rights. counsel may submit a habeas corpus petition seeking the witnesss immediate release. Mr. Speaker. I have to ask. how is that Kafkaesque? How is that somehow putting people outside the bounds of law? How is that having this administration twisting the Constitution in some way? It is. I would suggest. Mr. Speaker. this kind of hyperbole. this kind of misstatement which makes it more difficult for us to do our duty with respect to homeland security. We need to have those investigative tools that have been used against organized crime. that have been used against organized drug dealers and organizations. We need to be able to use those same investigative techniques. those same prosecutorial tools against those who would destroy us as a Nation. against those who have allied with those who have said it is their duty to kill any American. man. woman or child. anywhere in the world. combatant or noncombatant. We are in a new world. a world of terror. in which we have to respond in ways that. yes. are consistent with the Constitution. but ways that allow us to protect ourselves in a proper and forceful way. And these kinds of criticisms that come from the outside. whether it is with respect to Guantanamo or whether it is with respect to the use of laws which allow our application of the :aw against material witnesses. these kinds of attacks weaken our ability to do the job. And with respect to my second point. let me talk briefly about what we have done here in the House of Representatives to respond to the demand for us to respond to this unique challenge that is the challenge of terrorism. One cannot criticize a Congress for responding as best it could in the direct aftermath of 9/11. One cannot criticize Congress for doing as Congress always does in attempting to respond to some problems. throwing money at it. But one can criticize Congress at a time it has to take a pause and look at what it has done and seen what it can perhaps do better. And that is what we have done with the various bills that we have passed out of the House that were mentioned by the gentleman from Texas . One of the things that we did in that was respond to the recommendations of the 9/11 Commission report when they said homeland security assistance should be based strictly on -an objective. nonpolitical assessment of risks and vulnerabilities. These assessments should consider the threat of an attack. localities vulnerability to an attack. and the possible consequences of an attack. Sepondly. they told us. Congress should not use this mohey as a pork barrel. Third. they said. Federal homeland security assistance should not remain a program for general revenue H5235: sharing. Fourth. they told us. the. Federal Government should develop specific benchmarks for evaluating community needs and require that spending decisions be made in accordance with those benchmarks. Fifth. they told us. each State receiving funds should provide an analysis of how funds are allocated and spent within the State. Finally. they said. each city and State should have a minimum infrastructure for emergency response. This is precisely what we have done with the two bills that have been mentioned before. We have said that rational risk assessment should drive our strategy. should drive our tactics and should drive our funding. The House Committee on Homeland Security. with the leadership of the gentleman from California (Chairman Cox). reported out the Faster and Smarter Funding for First Responders Act. This bill will reduce the acrosstheboard formula for providing homeland security funds to State and local responders from .75 to .25 percent. Therefore. under this bill. a greater amount of funds will be disbursed solely based on risk assessment. In April of this year newSecretary Michael Chertoff testified before our committee regarding the need within DHS to promote riskbased prioritization and management. He said one of the goals before him is to "build a culture in which the disparate pieces of information are being transmitted to our analysts so that they. who have the benefit of the fuller picture. can properly analyze all of our information and inform our decisionmaking." We do need to make informed decisions. So. Mr. Speaker. I thank the gentleman for having this Special Order this evening for us to have an opportunity to recount some of the things that are necessary for us to do to provide for the defense of our homeland and understand that this threat remains. The biggest challenge we have here today is that the longer we are successful in forestalling terrorist attacks. the more difficult it is to explain to people why we need to continue to keep our defenses up. the harder it is to explain that these things do not happen by happenstance. Rather. it is because ol strong work done by brave men and women involved in the protection ol our homeland that allow us to be safer than we would be otherwise. The worst thing we could possibly dc is to not maintain our persistence and our dedication. our true dedication tc doing those things that are necessary to protect it. despite the criticism ol those who easily look at law enforcement. look at homeland security. the community. and saying they are going too far too fast. Contrary to that. we know we have not done enough. and while we in the Congress are required to provide the oversight to ensure that there are not abuses in the system and to ensure that no prosecutor. no law enforcement agent takes advantage of those tools we have given them. we also must make sure that they are not cowed by criticism from doing the job that they need to do. I thank the gentleman for the time.