Hearing - A Review of the Tools to Fight Terrorism

Federal News Service

HEADLINE: HEARING OF THE SUBCOMMITTEE ON TERRORISM, TECHNOLOGY AND HOMELAND SECURITY OF THE SENATE COMMITTEE ON THE JUDICIARY

SUBJECT: A REVIEW OF THE TOOLS TO FIGHT TERRORISM

CHAIRED BY: SENATOR JOHN KYL (R-AZ)

WITNESSES PANEL I: DANIEL J. BRYANT, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF JUSTICE; BARRY SABIN, CHIEF, COUNTERTERRORISM SECTION OF THE CRIMINAL DIVISION, DEPARTMENT OF JUSTICE;

PANEL II: JONATHAN TURLEY, PROFESSOR, GEORGE WASHINGTON UNIVERSITY LAW SCHOOL

LOCATION: 226 DIRKSEN SENATE OFFICE BUILDING, WASHINGTON, D.C.

TIME: 9:30 A.M.

BODY:
SEN. JOHN CORNYN (R-TX): Just briefly, Mr. Chairman. Thank you for convening this hearing and it's good to be here with you and Senator Feinstein, even though I'm not on the subcommittee, I am very much interested in this legislation and in the subject matter.

I want to, as a co-sponsor of this bill, the Tools to Fight Terrorism Act 2004, of course I'm very interested in what each of the witnesses have to say about this proposal. But I would note that I believe I saw this morning, maybe it was yesterday, that while crime statistics are at a-basically our crime levels are at a 30-year low in this country, and much of this legislation is directed at punishing terrorist activities and possession of WMD and other dangerous potential weapons, we're not, obviously when we're talking about terrorism, just concerned about punishing crime, punishing it after the fact, we're interested in prevention and pre-emption. That's of course what bringing down the wall was all about in the PATRIOT Act, sharing that information and perhaps the best evidence that the PATRIOT Act has been successful, as well as the other efforts that have been undertaken during the last three years, is that we have so far been able to disrupt or prevent any future-any other terrorist acts on our own soil.

Two areas, that I'm particularly interested in, have to do with the increased penalties for possession and use of MANPADS, that's surface-to-air shoulder-fired missiles which are a threat-potential threat to civil aviation and obviously the consequences of the use and trafficking of those is obvious. Just as-in the same vein, this bill provides increased penalties for possession of various weapons of mass destruction, including chemical and biological weapons, things like the smallpox virus which could be devastating if used, dirty bombs, radiological materials and nuclear materials. So I appreciate your convening this hearing today and let me sit in with you and Senator Feinstein, and I look forward to testimony.

BREAK IN TRANSCRIPT

SEN. JOHN CORNYN (R-TX): Thank you, Mr. Chairman.

I appreciate particularly Professor Turley's comments about the goal of trying to balance civil liberty concerns with the necessary tools that need to be provided for law enforcement and intelligence gathering abilities to provide for our national security. And certainly this is a debate that's as old as our country and even older. And I think all of us on the committee, indeed all of us in Congress, feel like it's our responsibility to see that that balance is struck as well as we are able to do so. But ultimately we can't know all the given sets of circumstances and facts that may be presented in any given case. And in this instance, context is importance.

And that's why I believe it's important that a judge-there ought to be recourse to judicial review, not matter what the circumstances, whether it relates to the so-called sneak and peak provisions of the PATRIOT Act which cannot be invoked without the oversight of a judge. And I feel the same way about the judicially enforceable terrorism subpoenas. And let me just explain. My experience with investigations has been that frequently third parties who receive a request from an investigator are uncertain about what their liability may say, let's say, or whether their compliance with a lawful request, let's say an informal request, might perhaps invoke some third party rights involved in the request.

So a couple of things happen. Either they will say, well, I'll be glad to give you the documents that you are requesting, or they say, I need a subpoena for my file, just to show that they have-are responding, not volunteering, but responding to a lawful request. And indeed, under the judicial-under the administrative subpoena provisions here, ultimately if the repository or the custodian of the documents that are subpoenaed says, I'm not going to give these up without a court order, there is an opportunity to go to a court to get that approval.

And I'd just like to ask first Mr. Bryant and then Professor Turley, have you comment on that, and if I've got that wrong, tell me. But if you think I've got it roughly right, I'd like to know that as well. Mr. Bryant?

MR. BRYANT: Yes, Senator, that's correct. In the case of the judicially enforceable administrative subpoenas for terrorism investigations provided in the bill, recipients can refuse to comply. DOJ can't then-the FBI can't then enforce that on its own. It would have to go to court to seek to enforce that subpoena. A recipient could petition the court to modify the returns of the request or to quash the subpoena entirely. And it is the case that there is also provision indicating that compliance with a subpoena request by a third party does not create civil liability on the part of the compliant party. So we think these are important protections that are explicitly part of the provision.

SEN. CORNYN: Professor Turley, I'm just-I note that from one report I saw that Congress has already granted administrative subpoena authority in a lot of other contexts. The number is kind of staggering. Three hundred and thirty-five according to one report, including postal inspectors, small business administration inspectors, and that they're used widely by federal investigators in healthcare fraud investigations and in connection with child exploitation investigations. So is there something specific about this context or the general issue of administration subpoenas that causes you concerns?

MR. TURLEY: Well, first of all, I think that's a valid point that you can make too much of the issue. I think there is legitimate concerns here, and I'll address those in a second. But it is also I think confusing when we refer to grand jury subpoenas. It makes it sound like a grand jury issued them, when in reality it is simply being signed by an AUSA. So the removal of the AUSA is not going to be a significant change in terms of civil liberties protections on a practical or a legal basis. And I think that you have to start with the analysis and accept that proposition from my standpoint.

Also parts of this provision I think do make abundant sense, although some of my friends strongly disagree with me. One, for example, is that it prevents people from revealing a national security subpoena. It requires them to only disclose it to their attorney. They can then go to a court to seek the court's intervention if they disagree with a subpoena. I think that the Department of Justice has a perfectly valid reason for imposing that type of limitation. I mean, the fact is that federal investigators face this problem all the time, out side the terrorist area of issuing a subpoena and then triggering knowledge by potential targets. And in the terrorism area I can think of no greater danger than the type of release of information.

So putting those aside, the issue involving administrative subpoenas can be distinguished in one respect. Those often deal with civil matters. They deal with administrative matters where the potential for the defendants is not as significant as in a terrorist case. So you can make a distinction between the two. But, once again, this is not, in my view, a significant threat to civil liberties, and I think there is a good reason that the Department of Justice is asking for this. And, to be quite frank, civil libertarians feel wounded in the last few years. And to support some of these provisions is really an exercise of hope over experience for some civil libertarians.

So there's a certain degree of resistance to anything that would make it easier or faster to issue these types of requests. And that's the reason I think congressional oversight is so essential if you go forward with it.

SEN. CORNYN: Well, I appreciate your response because I think it is a very balanced point of view. Unfortunately, in this area it seems like some view it as a zero sum gain. Either law enforcement gets what it wants and needs, and if it does, then all of our civil liberties are in jeopardy. Or on the other hand-I mean, it just seems to be based on TV advertising, mail solicitations that I've received at my home, asking me for money because the U.S. attorney or the Justice Department or the U.S. government or the Congress is taking away your civil liberties by provisions like this or like the sneak and peak provision, which do provide for judicial oversight seem to be so hysterical and off-base. But I appreciate your response.

Two other quick questions. One has to do with port security. And, again, I appreciate, Professor, your comments that you think this is important and significant reform, because of the potential vulnerability of our ports. Let me first ask Mr. Bryant. The Port of Houston in Texas, we've talked to them about this provision and they had some concerns. For example, in Section 402, the entry by false pretences; 409, manifest requirements; 410, stowaways; and 411, bribery. They wondered whether these provisions create or add to the liability of a public port authority. Do you have an opinion on that, sir.

MR. BRYANT: If I might, Senator, in the division of labor, Mr. Sabin and I arranged-I think he's in a better position to respond.

SEN. CORNYN: Excellent. Mr. Sabin.

MR. SABIN: I don't-I can't speak to whether it increases the liability of-sorry. I can't speak to whether it increases the liability in a civil context of a particular port officer or the employees in that regard. And we can get you specific information in that regard. I mean, certainly Title IV addresses, we believe, very necessary legislation gaps that exist relating to transporting terrorists and transporting weapons of mass destruction on vessels, the destruction of certain vessels at maritime facilities, conveying false information to particular individuals.

It does address in one of the provisions the link between corruption or bribery and port security, so that law enforcement can address a potential vulnerability where there is a gap between the boarder where someone can bribe a particular individual and therefore more easily facilitate terrorist entry into the country. But as to your specific question, I can get further information as to the potential civil liability for an employee at the port.

SEN. CORNYN: I would like to know what the department's official position is on that, because if it's unclear, we may need to look at that. Because I don't want any port, whether it's the Port of Houston or others, by invoking the provisions of this statute, to incur any additional liability to create liability that is not already present for civil purposes obviously.

MR. SABIN: One thing that we can do is post-9/11 we have set up a mechanism known as the Anti-Terrorism Advisory Councils, which brings together the prosecutorial entities as well as individuals at the seaports, first responders and the like, to gather and share information. So as part of that system, we can go back to our offices, reach out to the Anti-Terrorism Advisory Council coordinator in Houston or other specific port districts, have them-since they now have the networks and shared information that is occurring post- 9/11, obtain that information and get you an expeditious response in that regard.

SEN. CORNYN: So I don't wear out my welcome too much, since I'm not a member of the subcommittee, let me just ask one more question. And this has to do with MANPADS. And I think Mr. Bryant was saving whoever has this issue in your division of labor. I appreciate the support of the department for this provision to increase the penalties and indeed to create penalties for possession of MANPADS, which to me all you need to do is drive out close to Reagan National Airport, where they have the soccer fields and the bike trails, and just where the planes take off, for that concern to be brought home.

And I'm aware of the fact that, of course, during the Soviet invasion of Afghanistan, there were an awful lot of Stinger missiles and other MANPADS provided to them, the Mujahideen, to knock down Soviet helicopters. Unfortunately, there are a lot of them still circulating in places like the Middle East and places like Central America, where I recently traveled and was told that there was a buyback program designed to get these out of circulation. Do have any figures? Do you have any information that you can share with the committee on the availability of these via arms merchants and how realistic the threat of access to MANPADS by someone who wishes to do us harm, how readily they can be obtained?

MR. BRYANT: We would have to get back to you, Senator, with specifics. As a general matter, though, it can be noted that the bad news is MANPADS are available in the global marketplace. The good news is many of them, including some of those that you've referred to from past conflict in parts of the world, are very old, raising questions of reliability. But I do know that there is a briefing available by individuals within our intelligence community, and they can speak with great specificity to the question of how many and what type are currently available.

SEN. CORNYN: Thank you very much. Whether they're old or not, I'm reminded of the saying that we keep repeating around here, the bad guys only have to be lucky once and we have to be lucky all the time.

Thank you, Mr. Chairman.

SEN. KYL: Thank you, Senator Cornyn. You're welcome any time.