Committee Hearing: Implementation Of The USA Patriot Act
IMPLEMENTATION OF THE USA PATRIOT ACT: PROHIBITION OF MATERIAL SUPPORT UNDER SECTIONS 805 OF THE USA PATRIOT ACT AND 6603 OF THE INTELLIGENCE REFORM AND TERRORISM PREVENTION ACT OF 2004
HEARING BEFORE THE SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY
OF THE COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
MAY 10, 2005
Serial No. 109-13
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Mr. SCOTT. And thank you, Mr. Chairman. And I appreciate your holding this hearing on the issues surrounding the material support provision of the USA PATRIOT Act, and again want to thank you for holding the hearings. The fact that we're actually deliberating on this, I think, will give us the opportunity to have a much better work product than what was slapped together right at the last minute on the floor of the House.
This provision, the material support provision, has proved troublesome in its application; particularly troublesome in the context of humanitarian and disaster relief efforts, where aid workers are severely hampered by bizarre implications of a provision that attempts to make an exception for medical and humanitarian relief, but not for food and water or medical supplies to provide the medical procedures to provide the relief.
Various aspects of the provision have been found to be unconstitutional by several courts. We have not had a definitive ruling from the U.S. Supreme Court, so many of the issues are still being litigated.
We've made some fixes to the provision with the 9/11 bill we passed last year, but there still appear to be problems. Moreover, that fix was sunsetted to expire in 2006. So it's timely that we're revisiting it at this time.
Some of the issues, Mr. Chairman, that we need to look at include how an organization gets designated as a terrorist organization to begin with; how you get off the list; what kind of notice is required for someone to have. There are a lot of different issues where I'm afraid a lot of innocent people and people of good will making donations to organizations they thought were humanitarian organizations in fact might get caught up in this provision. So we look forward to our testimony by witnesses, Mr. Chairman. And again, thank you for holding the hearing.
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Mr. SCOTT. Thank you, Mr. Chairman. I guess this is for Mr. Sabin. How do you get on the list to begin with, the FTO list?
Mr. SABIN. There's an administrative process that has been scrutinized by the D.C. Circuit. It is a designation by the Secretary of State of the United States, in consultation with the Attorney General and the Secretary of Treasury. An administrative record is compiled, and the designation occurs after publication. There are presently 40 foreign terrorist organizations so designated under that procedure.
Mr. SCOTT. You said ''foreign.'' Can an American group be designated?
Mr. SABIN. No. By definition, it is a foreign terrorist organization. So it must be a foreign entity; it must be a terrorist organization with harm or threat to the interests of the United States national security; and it must be an organization, as opposed to individuals.
A separate structure exists under the International Emergency Economic Powers Act, known as ''IEEPA,'' involving individuals.
Mr. SCOTT. If you feel you are wrongfully designated, can you try to get off the list?
Mr. SABIN. Yes, an organization has the ability to challenge that in court. And such challenges have occurred in the D.C. Circuit-in the D.C. court system.
Mr. SCOTT. And if they don't bother to try to get off the list, anyone who donates to that organization is committing a Federal crime?
Mr. SABIN. The system that Congress has passed is a transparent mechanism by which individuals who have the requisite, knowing intent to provide funds or any kind of material support or resources to that foreign terrorist organization would be committing a violation of U.S. law.
Mr. SCOTT. Now, this intent, do you have to know that it's been designated?
Mr. SABIN. Yes. As delineated in the Intelligence Reform and Terrorism Prevention Act, and as the Ninth Circuit Court of Appeals articulated, you have to know that the entity has been designated, or that it has engaged in terrorist activity. So there is a knowing requirement that has been articulated by Congress, by the courts, and executed and implemented by the Justice Department.
Mr. SCOTT. Yes, but the knowing is knowing that it's been designated.
Mr. SABIN. It's ''or.'' It's ''or.'' Either designated, or that you knew that they were involved in terrorist activity.
Mr. SCOTT. Okay. If you make a charitable contribution for what you think is humanitarian aid, tsunami relief, to an organization that's on the list, that's easy, if you knew it was on the terrorist list. What if you didn't know it was a terrorist organization, but in fact it is a terrorist organization?
Mr. SABIN. We would have to prove a knowing violation. So that if under your hypothetical the Government can't meet its burden of proof beyond a reasonable doubt that it was a knowing violation of the statute, we cannot bring and obtain a conviction under this law.
Mr. SCOTT. Well, in one of the examples that was given, you're trying to get humanitarian relief, and the only game in town is a terrorist organization.
Mr. SABIN. Myself and Mr. Katsas can explain that in detail. When we talk about the tsunami relief, let's break that down into specific components. We applaud the generosity and the spirit of the American people in order to provide funds for those kinds of victims. You cannot-who is the assistance being provided to? Is it the foreign terrorist organization? If ''Yes,'' then it is a violation of the statute.
If it is being provided to an individual who is a victim, and that victim is also under the direction and control of the foreign terrorist organization, yes, it would be a violation of the criminal statute.
If that victim is in the area, but is not a member under the direction and control of the foreign terrorist organization, it would not be a violation of criminal law to bring a charge.
What kind of assistance is being provided? In addition to whom it's being provided, what are you providing? Are you providing--
Mr. SCOTT. Well, what about expertise? The example was given, you can give expertise on medical care.
Mr. SABIN. And you could also provide expertise regarding how you should conduct a military operation for the area.
Mr. SCOTT. That's right. Now, let's talk about the medical advice. Is that covered?
Mr. SABIN. No, because explicitly, in section 2339B, medicine is exempted from the parameters of criminal violation.
Mr. SCOTT. Well, what about food? Food is not exempt; is that right?
Mr. SABIN. It is not exempt.
Mr. SCOTT. So if you're providing expertise on how to deliver food, is that a Federal crime?
Mr. SABIN. It will depend upon the circumstances, to whom you are providing and what your knowledge is of that individual who you are providing it to. And if there is any problem over clarity under 2339B violation, Congress provided, under Subsection J in the Intelligence Reform and Prevention Act, a mechanism by which you can seek guidance as to whether your conduct is violative of the statute.
Mr. SCOTT. Did you want to comment,
Mr. Arulanantham?
Mr. ARULANANTHAM. I did, if briefly, Representative, two things. First, just the very last thing that Mr. Sabin said, the licensing scheme in Subsection J doesn't cover food. So for example, if you wanted to provide advice about how to deliver food aid, or clothing, or tents, or water purification systems, the statute doesn't allow you to do that. Second--
Mr. SCOTT. It doesn't allow-you mean you would be committing a Federal crime if you did?
Mr. ARULANANTHAM. That's correct. You'd be committing a Federal crime, punishable by up to 20 years in prison, for doing that. In addition, in the humanitarian law project case, the Government succeeded-as we've all been talking about-succeeded in winning the injunction against a doctor who wanted to give advice about public health services-you know, that the injunction had to be dissolved so that that could be criminally prosecuted.
And I think the ambiguity in the statute is that it distinguishes-it says ''medicines,'' but it doesn't appear to cover medical expertise or actually medical services, or the conducting of medical-you know, of medical activity.
And I think it's also important to realize that, as I said, medical problems are not limited to medicines. Medicine doesn't do you any good if you're starving. It doesn't do you any good if you can't get any drinking water. And this statute doesn't cover those things. It doesn't exempt them.
Mr. SCOTT. Thank you.
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Mr. SCOTT. Thank you. Mr. Fine, you indicated that you are investigating the Mayfield situation?
Mr. FINE. Yes.
Mr. SCOTT. You won't be offended if some of us are really skeptical about how he could have been misidentified by fingerprints? Of all the people in the world to get inadvertently misidentified, it happened to be a Muslim lawyer suing the United States. That's-that's unusual; don't you think?
Mr. FINE. I think it is unusual, and I think healthy-skepticism is a healthy thing. And that's what we try and bring to bear on our investigations. And we're going to investigate this very thoroughly.
Mr. SCOTT. So you have to do a little bit more investigation than average to convince a lot of people that there wasn't something going on other than just a random misidentification of fingerprints.
Now, on your civil rights investigations, you've kind of alluded to this a little bit. One of the problems, if you're just waiting for complaints, is that, one, you've got the gag orders to deal with. You've got another problem. A lot of these things are secret. You didn't know you were-there was a sneak-and-peek investigation or search of your house. Are you being pro-active in your investigation, or are you just waiting for the complaints?
Mr. FINE. We're not simply waiting for complaints. We look to see where there's serious problems. In fact, in our investigation of the treatment of detainees after September 11th, we received a few complaints and we were very pro-active in going forth with a systemic review of what was happening to those detainees.
With regard to the delayed notification, or the so-called ''sneak-and-peek,'' eventually people do get notified of the search. And if they had complaints, I would presume they'd know where to come, or should come to us with it.
Mr. SCOTT. Did you look into the fact that Muslims were rounded up in the Detroit area, as a civil rights violation?
Mr. FINE. We have not investigated that matter, no.
Mr. SCOTT. What about, did you take a position on the idea of enemy combatants, where people could get arrested in the United States and held without charges?
Mr. FINE. That's a matter that's before the courts, and we have not opened an independent review of the enemy combatant situation.
Mr. SCOTT. What about the status of military tribunals?
Mr. FINE. The status of military tribunals?
Mr. SCOTT. Yes. I mean, there was a lot of civil rights implications on whether or not people would get a fair trial under that situation. I mean, the first announcement said that, you know, you're not entitled to guilt beyond a reasonable doubt, you're not entitled to a presumption of innocence. Mr. Katsas, do you want to--
Mr. KATSAS. Mr. Scott, if I may, that issue is the subject of litigation which is currently pending in the Court of Appeals for the D.C. Circuit.
Mr. SCOTT. And therefore, you can't look at it as a civil rights violation?
Mr. KATSAS. Not to comment--
Mr. SCOTT. I mean, even if it's legal, it seems to me that there's some problems with hauling people off the street and locking them up. And I asked Attorney General Ashcroft, ''If you happened to round up the wrong person, and they're innocent, when do they get out?'' And the answer was, ''The end of the conflict.'' At the end of the war on terrorism, they can get out. No hearing, no habeas corpus, no nothing. Isn't that something that we need to look at, whether it's legal or not, as a civil rights violation?
Mr. FINE. I think that is a very serious issue that should be looked at by Congress, by others, by the courts. I'm not sure how we would investigate it.
Mr. SCOTT. Well, Congress hadn't authorized this, pick people off the street. How do we look into it?
Mr. FINE. I think Congress, in its oversight role, could look into it. And there's many facets of oversight.
Mr. SCOTT. Well, suppose Congress passed that you can pick somebody off the street and lock them up. I mean, so what? I mean, it's still illegal; isn't it?
Mr. FINE. Presumably. I would hope that if there was an illegal action by Congress that the courts would review it.
Mr. SCOTT. Well, I mean, if we passed a law that you could pick somebody off the street who'd been designated by the Executive Branch as an enemy combatant and held without charges, if we passed a law to authorize that, don't you think the courts ought to throw it out, or somebody in the civil rights division ought to find a little civil rights problem?
Mr. FINE. Absolutely.
Mr. SCOTT. Okay. I don't know who this-maybe Mr. Katsas or Mr. Sabin. Is there anything comparable in domestic law that has this aid to terrorist organizations? We have a lot of little terrorist organizations around. Some of the groups have websites listing abortion physicians that end up getting shot. Do you have any-is there any domestic equivalent to this? You've got militias running around in the woods, teaching people how to use firearms.
Mr. SABIN. There is not a comparable provision. There is title 18, United States Code, Section 842(P), which provides for the teaching of bomb-making type of activities; which arguably could have first amendment concerns that civil libertarians would seek to address. But in terms of a listing approach, no. The answer is, no.
Mr. SCOTT. But I mean, if we had caught the Oklahoma bombing group before-and I understand you're trying to open an investigation to determine whether we got everybody or not-if we had gotten a group before, and they'd just been training, with nothing specific, without getting into any specifics, just training for this kind of thing, and you concluded that they were a terrorist organization, would we have any domestic law to deal with that?
Mr. SABIN. We can work with the Congress in terms of specifics. But there is, for example, under eco-terrorism, section 43 of title 18 of the United States Code, which has-addresses that. There's the explosive statutes under section 844, that you could have certain kinds of conspiracies. And that's how we reached, for example, the Oklahoma City bombers, in use of weapons of mass destruction and the like.
Mr. SCOTT. Yes, but in all of those, you have to have-actually be involved in the crime. It's just not giving feeding and other expertise, medical advice, to the group, with nothing to do with the crime. Your activities have to be crime-related. There's apparently no comparison to where you're giving that kind of advice to a group, and then all of a sudden, because they're a terrorist organization, you're roped into a Federal crime.
Mr. SABIN. I think we have to look carefully at the language of section 43 relating to eco-terrorism; but I think that is generally a correct proposition, sir. There is attempt and conspiracy statutes that could encompass certain kinds of criminal activity.
Mr. ARULANANTHAM. Just briefly--
Mr. SABIN. Also, a concept under the guidelines for terrorism enterprise investigations where there are a number of organizations that are under review and scrutiny, such as some of the militia groups that you've referred, that the FBI has under investigative scrutiny.
So there's an investigative mechanism in that regard, but not a statute, if I understand your question correctly.
Mr. ARULANANTHAM. Representative Scott, just briefly, if I may, I think the question is a good one, and it goes to the constitutional point. I'm making here primarily a humanitarian argument because of the horrible things that I saw, but I think the analogy is very, very important to understand.
A lawyer who wanted to advise Operation Rescue about how they can comply with, you know, the laws governing clinic protection, for example, and still legitimately protect-or protest abortion provision going on in this country, is clearly expert advice. It just clearly is. And it involves specialized knowledge.
It's very hard to understand-in fact, in the Humanitarian Law Project case, where the Government has won an-has defeated an injunction, most recently in the Ninth Circuit, one of the prospective defendants wants to give human rights training to a group so they can comply with, you know, international humanitarian law. And the Government argues that, you know, that can be proscribed under the statute.
So I think there's no even remote analogue in the domestic context, because in all vicarious liability contexts, whether it be conspiracy law, or aiding and abetting, or RICO, or any of these contexts, you require something. It's not a specific intent; it's just that the person have some interest in the actual criminal activity going on.
And in this other context, we don't-you know, the way the law is currently written, it doesn't require the doctor to actually want to further the LTTE's military purposes. Quite on the contrary. The doctor might just want to help starving people or people in need of medical assistance; but the law still bans it.
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