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2001
ADMINISTRATION'S DRAFT ANTI-TERRORISM ACT OF 2001
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
SEPTEMBER 24, 2001
Serial No. 39
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
COMMITTEE ON THE JUDICIARY
Page 2 PREV PAGE TOP OF DOCF. JAMES SENSENBRENNER, JR., WISCONSIN, Chairman
HENRY J. HYDE, Illinois
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
LINDSEY O. GRAHAM, South Carolina
SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
DARRELL E. ISSA, California
MELISSA A. HART, Pennsylvania
JEFF FLAKE, Arizona
[VACANCY]
[VACANCY]
JOHN CONYERS, JR., MICHIGAN
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
Page 3 PREV PAGE TOP OF DOCRICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
PHILIP G. KIKO, Chief of Staff-General Counsel
PERRY H. APELBAUM, Minority Chief Counsel
C O N T E N T S
SEPTEMBER 24, 2001
OPENING STATEMENT
The Honorable F. James Sensenbrenner, Jr., a Representative in Congress From the State of Wisconsin, and Chairman, Committee on the Judiciary
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WITNESSES
The Honorable John Ashcroft, Attorney General of the United States (accompanied by Mr. Larry D. Thompson, Deputy Attorney General of the United States; Mr. Michael Chertoff, Assistant Attorney General in the Justice Department for the Criminal Division; and Mr. Viet Dinh, Assistant Attorney General for Legal Policy)
Oral Testimony
Prepared Statement
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
The Honorable F. James Sensenbrenner, Jr., a Representative in Congress From the State of Wisconsin, and Chairman, Committee on the Judiciary
APPENDIX
Statements Submitted For The Record
The Honorable John Conyers, Jr., a Representative in Congress From the State of Michigan
The Honorable Bob Barr, a Representative in Congress From the State of Georgia
Page 5 PREV PAGE TOP OF DOCThe Honorable Jim Ryan, Attorney General From the State of Illinois
LPA, Inc.: LPA Testimony for Hearing on Administration's Draft of the Anti-Terrorism Act of 2001
Material Submitted For The Record
The Honorable Spencer Bachus, a Representative in Congress From the State of Alabama: Section-by-Section Analysis of the Anti-Terrorism Act of 2001
ADMINISTRATION'S DRAFT ANTI-TERRORISM ACT OF 2001
MONDAY, SEPTEMBER 24, 2001
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to call, at 2:02 p.m., in Room 2141, Rayburn House Office Building, Hon. F. James Sensenbrenner, Jr., (Chairman of the Committee) presiding.
Chairman SENSENBRENNER. The Committee will be in order. On September 11, 2001, America was changed forever. Thousands of lives were taken from us, and millions of Americans lost their innocence on that day. We watched in horror as terrorists attacked us not once, but four times without provocation. We watched as they attacked the heart and soul of America by targeting institutions that protect our freedoms and vitalize our economy.
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I have visited the sites and met many people whose lives have been tragically altered by these events. This past weekend I saw families and firefighters at the World Trade Center who are continuing to have hope that they still might find survivors of this attack. I saw the rubble and ruins of what was once a symbol of the strength of the American work ethic. I hope that I never again have to visit a site like that.
Today this Committee will hear from the Attorney General of the United States regarding the need for us to expeditiously pass legislation to give the Department of Justice and our intelligence community needed prime fighting tools. From my conversations with the Attorney General and other law enforcement officials, I believe that there is an unquestionable need for such legislation. In fact, I am convinced that our homeland security depends upon it. Consequently, I have been working with Ranking Member Conyers to come to an agreement on a bipartisan bill. To that end, majority and minority Committee staff have been working tirelessly to draft such a bill, and I am hopeful that agreement is near.
I believe that such legislation must enhance law enforcement's ability to send convicted terrorists to prison or place them under supervision for life. It must provide process changes and updates to investigative definitions in order to address new technologies, such as voice mail and disposable cell phones. It should also allow the FBI to attain a search warrant from one court to investigate crimes of terrorism, rather than requiring them to waste precious investigative time going to 94 different Federal judicial districts.
Of equal importance, this bill should not do anything to take away the freedom of innocent citizens. Of course, we all recognize that the fourth amendment to the Constitution prevents the government from conducting unreasonable searches and seizures. That is why the legislation I hope to introduce shortly will not change the United States Constitution or the rights guaranteed to citizens of this country under the Bill of Rights.
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I think it also is important to keep in mind that the Preamble to the Constitution states that that document was ordained, ''to establish justice, ensure domestic tranquility, provide for the common defense and to promote the general welfare and to secure the blessings of liberty.'' Let me tell you on September 11, our common defense was penetrated, and America's tranquility, welfare and liberty were ruthlessly attacked. I urge the Members of this Committee to stand united together in recognition of the important purpose we must serve in preventing future terrorist attacks and prosecuting those who have already attacked us.
I also urge Members who have reservations about the Administration's proposal to listen closely to the Attorney General and to carefully examine the legislation that is subsequently introduced. I truly believe you will find it fair and balanced and designed to meet critical law enforcement needs.
Unfortunately, the threat of future terrorist attacks is real, and we must do our part to eliminate this threat before there is another devastating day like September 11, 2001. I welcome Attorney General Ashcroft here today to discuss the provisions of the Administration's law enforcement package and the important purpose they will serve in fighting terrorism in this country and abroad.
[The prepared statement of Mr. Sensenbrenner follows:]
PREPARED STATEMENT OF THE HONORABLE F. JAMES SENSENBRENNER, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WISCONSIN
Page 8 PREV PAGE TOP OF DOCOn September 11, 2001, America was changed forever. Thousands of lives were taken from us and millions in America lost their innocence on that day. We watched in horror as terrorists attacked us not once, but four times without provocation. We watched as they attacked the heart and soul of America by targeting institutions that protect our freedoms and vitalize our economy.
I have visited the sites and met many people whose lives have been tragically altered by these events. This past weekend I saw families and firefighters at the World Trade Center who continue to have hope that they might still find survivors of this attack. I saw the rubble and ruins of what was once a symbol of the strength of the American work ethic. I hope that I never again have to visit a site like that.
Today, this Committee will hear from the Attorney General of the United States regarding the need for us to expeditiously pass legislation to give the Department of Justice and our intelligence community needed crime-fighting tools. From my conversations with the Attorney General and other law enforcement officials, I believe there is an unquestionable need for such legislation——in fact, I am convinced that our homeland security depends on it. Consequently, I have been working with ranking member Mr. Conyers to come to agreement on a bipartisan bill. To that end, majority and minority Committee staff have been working tirelessly to draft such a bill and I am hopeful that an agreement is near.
I believe such legislation must enhance law enforcement's ability to send convicted terrorists to prison or place them under supervision for life. It must provide process changes and updates to investigative definitions in order to address new technology such as voice mail and disposable cell phones.
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It should also allow the FBI to obtain a search warrant from one court to investigate crimes of terrorism rather than requiring them to waste precious investigative time going to 94 different federal districts.
Of equal importance: the bill should not do anything to take away the freedoms of innocent citizens. Of course we all recognize that the 4th amendment to the Constitution prevents the government from conducting unreasonable searches and seizures—that is why the legislation I hope to introduce shortly will not change the United States Constitution or the rights guaranteed to citizens of this country under the Bill of Rights.
I think it is also important to keep in mind that the preamble to the Constitution states that the Constitution was ordained to ''establish justice, insure domestic tranquility, provide for the common defense, to promote the general welfare and to secure the blessings of Liberty.''
Well, let me tell you, on September 11th our common defense was penetrated and America's tranquility, welfare and liberty were ruthlessly attacked. I urge the Members of this Committee to stand united together in recognition of the important purpose we must serve in preventing future terrorist attacks and prosecuting those who have already attacked us.
I also urge members who have reservations about the Administration's proposal to listen closely to the Attorney General and to carefully examine the legislation that is subsequently introduced. I truly believe you will find it fair and balanced and designed to meet critical law enforcement needs. Unfortunately, the threat of future terrorist attacks is real and must do our part to eliminate this threat before there is another devastating day like September 11, 2001.
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I welcome Attorney General Ashcroft here today to discuss the provisions of the Administration's law enforcement package and the important purpose they will serve in fighting terrorism in this country and abroad.
Chairman SENSENBRENNER. In the absence of Mr. Conyers, I ask unanimous consent that his opening statement be placed in the record. Without objection, so ordered.
Chairman SENSENBRENNER. The way we will proceed today is the Attorney General is only here until 3 o'clock, and then he has other engagements. After his prepared remarks, I would like to split the remaining time between then and 3 o'clock between myself and Mr. Conyers equally to be yielded to Members on both sides.
Mr. Thompson, the Deputy Attorney General, will be able to spend an extra half hour, and Mr. Dinh and Mr. Chertoff, Mr. Chertoff being the head of the Criminal Division, an extra hour. So after the Attorney General has left, we will proceed under the 5-minute rule for questioning of the remaining officials of the Justice Department, and, without objection, that will be the order.
Now, Mr. Attorney General, would you kindly introduce the members of your team, and then will each of you stand to be sworn in.
Attorney General ASHCROFT. Thank you, Mr. Chairman. I'm pleased to have with me the Assistant Attorney General in the Justice Department for the Criminal Division, Michael Chertoff, who is on my left. On my right is the Deputy Attorney General of the United States of America, Mr. Larry Thompson. And to his right is Viet Dinh, who is the Assistant Attorney General for Legal Policy. I'd be pleased now to take the oath.
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Chairman SENSENBRENNER. Please raise your right hand.
[Witnesses sworn.]
Chairman SENSENBRENNER. Let the record show that each of the witnesses have answered in the affirmative.
Mr. Attorney General, the floor is yours.
TESTIMONY OF JOHN ASHCROFT, UNITED STATES ATTORNEY GENERAL, ACCOMPANIED BY LARRY D. THOMPSON, DEPUTY ATTORNEY GENERAL; MICHAEL CHERTOFF, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION; AND VIET DINH, ASSISTANT ATTORNEY GENERAL FOR LEGAL POLICY
Attorney General ASHCROFT. Mr. Chairman, thank you for the opportunity to appear before this Committee to discuss America's response to the criminal act of war perpetrated on the United States of America on September 11. Mr. Chairman and Members of the Committee, the American people do not have the luxury of unlimited time in erecting the necessary defenses to future terrorist acts. The danger that darkened the United States of America and the civilized world on September 11 did not pass with the atrocities committed that day. They require that we provide law enforcement with the tools necessary to identify, dismantle, disrupt and punish terrorist organizations before they strike again.
Terrorism is a clear and present danger to Americans today. Intelligence information available to the FBI indicates a potential for additional terrorist incidents. As a result, the FBI has requested through the national threat warning system that all law enforcement agencies nationwide be on heightened alert.
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When we have threat information about a specific target, we share that information with appropriate State and local authorities. We have contacted several city and State officials over the last 13 days to alert them to potential threats. We also act on intelligence information to neutralize potential terrorist attacks using specific methods.
Yesterday the FBI issued a nationwide alert based on information they received indicating the possibility of attacks using crop-dusting aircraft. The FBI assesses the uses of this type of aircraft to distribute chemical or biological weapons of mass destruction as potential threats to Americans. We have no clear indication of the time or place of any such attack.
The FBI has confirmed that Mohammed Atta, one of the suspected hijackers, was acquiring knowledge of crop-dusting aircraft prior to the attacks on September 11th. A search of computers, computer disks and personal baggage of another individual whom we have in custody revealed a significant amount of information downloaded from the Internet about aerial application of pesticides or crop-dusting. At our request, the Federal Aviation Administration has grounded such aircraft until midnight tonight. In addition to its own preventative measures, the FBI has strongly recommended that State and local and other Federal law enforcement organizations take steps to identify crop-dusting aircraft in their jurisdictions and ensure that they are secure. I also urge Americans to notify immediately the FBI of any suspicious circumstances that may come to their attention regarding crop-dusting aircraft or any other possible terrorist threat.
The FBI Web site is www.ifccfbi.gov—pardon me, .org. That's www.ifccfbi.org. Our toll-free telephone number is 866–483–5137. 866—that's toll free. 866–483–5137.
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The highly coordinated attacks of September 11 make it clear that terrorism is the activity of expertly organized, highly coordinated and well-financed organizations and networks. These organizations operate across borders to advance their ideological agendas. They benefit from the shelter and protection of like-minded regimes. They are undeterred by the threat of criminal sanctions, and they are willing to sacrifice the lives of their members in order to take the lives of innocent citizens of free nations.
This new terrorist threat to Americans on our soil is a turning point in American history. It's a new challenge for law enforcement. Our fight against terrorism is not merely or primarily a criminal justice endeavor. It is defense of our Nation and its citizens. We cannot wait for terrorists to strike to begin investigations and to take action. The death tolls are too high, the consequences too great. We must prevent first. We must prosecute second.
The fight against terrorism is now the highest priority of the Department of Justice. As we do in each and every law enforcement mission we undertake, we are conducting this effort with the total commitment to protect the rights and privacy of all Americans and the constitutional protections we hold dear.
In the past when American law enforcement confronted challenges to our safety and security from espionage, drug trafficking and organized crime, we've met those challenges in ways that preserve our fundamental freedoms and civil liberties. Today we seek to meet the challenge of terrorism within our borders and targeted at our friends and neighbors with the same careful regard for the constitutional rights of Americans and respect for all human beings. Just as American rights and freedoms have been preserved throughout previous law enforcement campaigns, they must be preserved throughout this war on terrorism.
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This Justice Department will never waiver in its defense of the Constitution nor relent in our defense of civil rights. The American spirit that rose from the rubble in New York knows no prejudice and defies division by race, ethnicity or religion.
The spirit which binds us and the values that define us will light Americans' path from this darkness. At the Department of Justice, we are charged with defending American's lives and liberties, and we are asked to wage war against terrorism within our own borders. Today we seek to enlist your assistance, for we seek new laws against America's enemies, foreign and domestic.
As the Members of this Committee understand, the deficiencies in our current laws on terrorism reflect two facts. First, our laws fail to make defeating terrorism a national priority. Indeed, we have tougher laws against organized crime and drug trafficking than terrorism. Second, technology has dramatically outpaced our statutes. Law enforcement tools created decades ago were crafted for rotary telephones, not e-mail, the Internet, mobile communications and voice mail. Every day that passes with outdated statutes and the old rules of engagement, each day that so passes is a day that terrorists have a competitive advantage. Until Congress makes these changes, we are fighting an unnecessarily uphill battle.
Members of the Committee, I regret to inform you that we are today sending our troops into the modern field of battle with antique weapons. It is not a prescription for victory. The antiterrorism proposals that have been submitted by the Administration represent careful, balanced, long overdue improvements to our capacity to combat terrorism. It is not a wish list. It is a modest set of proposals, essential proposals, focusing on five broad objectives, which I will briefly summarize.
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First, law enforcement needs a strengthened and streamlined ability for our intelligence-gathering agencies to gather the information necessary to disrupt, weaken and eliminate the infrastructure of terrorist organizations.
Critically, we also need the authority for our law enforcement to share vital information with our national security agencies in order to prevent further terrorist and future terrorist attacks. Terrorist organizations have increasingly used technology to facilitate their criminal acts and hide their communications from law enforcement. Intelligence-gathering laws that were written for an era of land-line telephone communications are ill-adapted for use in communications over multiple cell phones and computer networks, communications that are also carried by multiple telecommunications providers located in different jurisdictions.
Terrorists are trained to change cell phones frequently, to route e-mail through different Internet computers in order to defeat surveillance. Our proposal creates a more efficient, technology-neutral standard for intelligence gathering, ensuring law enforcement's ability to trace the communications of terrorists over cell phones, computer networks and the new technologies that may be developed in the years ahead. These changes would streamline intelligence-gathering procedures only. We do not seek changes in the underlying protections in the law for the privacy of law-abiding citizens. The information captured by the proposed technology-neutral standard would be limited to the kind of information you might find in a phone bill, such as the phone numbers dialed by a particular telephone. The content of these communications in this setting would remain off limits to monitoring by intelligence authorities, except under the current legal standards where content is available under the law which we now use.
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Our proposal would allow a Federal court to issue a single order that would apply to all providers in the communications chain, including those outside the region where the court is located. We need speed in identifying and tracking down terrorists. Time is of the essence. The ability of law enforcement to trace communications into different jurisdictions without obtaining an additional court order can be the difference between life and death for American citizens. We're not asking the law to expand, just to grow as technology grows. This information has historically been available when criminals used predigital technologies. This same information should be available to law enforcement officials today.
Second, we must make fighting terrorism a national priority in our criminal justice system. In a speech to the Congress, President Bush said that Osama bin Laden's terrorist group al Qaeda is to terror what the Mafia is to organized crime. However, our current laws make it easier to prosecute members of organized crime than to crack down on terrorists who can kill thousands of Americans in a single day.
The same is true of drug traffickers and individuals involved in espionage. Our laws treat these criminals and those who aid and abet them more severely than our laws treat terrorists.
We would make harboring a terrorist a crime. Currently, for instance, harboring persons engaged in espionage is a specific criminal offense, but harboring terrorists is not. Given the wide terrorist network suspected of participating in the September 11 attacks, both in the United States and in other countries, we must punish anyone who harbors a terrorist. Terrorists can run, but they should have no place to hide.
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Our proposal also increases the penalties for conspiracy to commit terrorist acts to a serious level, as we have done for many drug crimes.
Third, we seek to enhance the authority of the Immigration and Naturalization Service to detain or remove suspected alien terrorists from within our borders. The ability of alien terrorists to move freely across our borders and operate within the United States is critical to their capacity to inflict damage on our citizens and facilities. Under current law, the existing grounds for removal of aliens for terrorism are limited to direct material support of an individual terrorist. We propose to expand these grounds for removal to include material support to terrorist organizations. We propose that any alien who provides material support to an organization that he or she knows or should know is a terrorist organization should be subject to removal from the United States.
Fourth, law enforcement must be able to follow the money in order to identify and neutralize terrorist networks. Sophisticated terrorist operations require substantial financial resources. On Sunday evening President Bush signed a new Executive Order under the International Emergency Economic Powers Act, IEEPA, blocking the assets of and the transactions of individuals and organizations with terrorist organizations and other business operations that support terrorism. President Bush's new Executive Order will allow intelligence, law enforcement and financially—financial regulatory agencies to follow the money trail to the terrorists and to freeze the money to disrupt their actions. This Executive Order means that the United States' banks that have assets of these groups or individuals must freeze their accounts, and United States citizens or businesses are permitted—prohibited from doing business with those accounts.
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At present the President's powers are limited to freezing assets and blocking transactions with terrorist organizations. We need the capacity for more than a freeze. We must be able to seize. Doing business with terrorist organization must be a losing proposition. Terrorists financiers must pay a price for their support of terrorism which kills innocent Americans.
Consistent with the President's action yesterday and his statements this morning, our proposal gives law enforcement the ability to seize the terrorists' assets. Further, criminal liability is imposed on those who knowingly engage in financial transactions, money laundering involving the proceeds of terrorist acts.
Finally, we seek the ability for the President of the United States and the Department of Justice to provide swift emergency relief to the victims of terrorists and their families.
Mr. Chairman, I want you to know that the investigation into the act of September 11 is ongoing, moving aggressively forward. To date, the FBI and INS have arrested or detained 352 individuals who remain—there are other individuals, 392 who remain at large, because we think they have—and we think they have information that could be helpful to the investigation. The investigative process has yielded 324 searches, 103 court orders, 3,410 subpoenas, and the potential tips are still coming into the Web site and the 1–800 hotline. The Web site has received almost 80,000 potential tips; the hotline, almost 15,000.
Now it falls to us in the name of freedom and those who cherish it to ensure our Nation's capacity to defend ourselves from terrorists. Today I urge the Congress—I call upon the Congress to act, to strengthen our ability to fight this evil wherever it exists, and to ensure that the line between the civil and the savage, so brightly drawn on September 11, is never crossed again.
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Chairman SENSENBRENNER. Thank you very much, Mr. Attorney General. At this point, without objection, all Members have heard the statements, and that of the Attorney General will be included in the record.
[The prepared statement of Mr. Ashcroft follows:]
Chairman SENSENBRENNER. There are 35 minutes left before you have to leave; that means 17 1/2 minutes available on each side. And I recognize the gentleman from Michigan.
Mr. CONYERS. Well, I thank you, Mr. Chairman. You're recognizing me for the purpose of making an introductory statement as you did; is that not correct?
Chairman SENSENBRENNER. You can use your 17 1/2 minutes however you want.
Mr. CONYERS. Well, that's not exactly the question, sir. In this Committee a process that started even before you arrived, we—the Ranking Member and the Chairman customarily have 5 minutes each, and I do not want my 5 minutes coming out of the time for 16 Members of this Committee to divide 17 minutes, and we ought to get that straight right now.
Chairman SENSENBRENNER. Okay. The gentleman is recognized for 5 minutes, but the Attorney General has to leave at 3 o'clock. So that will reduce the time on each side to 15 minutes.
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Mr. CONYERS. Well, it may, or it may not.
I want to just welcome the Attorney General, Mr. John Ashcroft, and the Deputy Attorney General, Mr. Larry Thompson. Mr. Chertoff and Mr. Dinh, we welcome you to these Committee proceedings.
And notwithstanding the opening comments that I made, I want to report to you that myself and the Chairman of this Committee, Mr. Jim Sensenbrenner, have been working very closely together. As a matter of fact, different Members on both sides of this Committee, Democrats and Republicans, have been working over the weekend, as our staffs have, and as we know you have as well.
Attorney General ASHCROFT. Well, we are grate—pardon me. We are grateful for that, and we are aware of the time that our staff has spent with yours, and we appreciate the cooperative relationship.
Mr. CONYERS. I thank you very much, and I just want you to know that there is not a Member on this Committee that is not pressed and committed to urgently produce the kinds of additional legislation that is needed for this country and particularly for the Office of the Attorney General to prosecute the tremendously important mission that is confronting you at this moment.
We're coming to grips with the tragic events that have occurred since September 11. The country appears more unified than ever to confront the problem that we're presented here in the United States in the year 2001. But today we're here to review the Attorney General's emergency request for new authorities to combat terrorism, and I am gratified to report that the Minority Leader of this House, Mr. Richard Gephardt, who is working, incidentally, very closely with the Speaker, Mr. Hastert, and we have been reporting to him the progress and the activities going on on the Judiciary Committee, which has such a large responsibility in the legislative requests that you have made. And it's to these points I would like to bring to your attention how we're going to proceed, or how I hope we'll proceed.
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First of all, there has been a great deal of consensus forming around a number of the provisions in your proposal that you've presented to us recently. As a matter of fact, I can state that we on this side of the aisle, 16 of us in number, have agreed to ironically 16 of the provisions within your proposal, 16 of them. They're before our drafting Committee, being put into a bill as we speak.
Now, we're working hard. We're willing to burn the midnight oil, but it's hard for me to understand how if the proposal offered by our friend, the Chairman from this Committee, Mr. Sensenbrenner—how we will be able to employ a 10 a.m. markup on a proposal that has never been explained before the Members. These—and talked with among ourselves. In other words, we're at close agreement, Mr. Ashcroft, but we've got to see the writing, and we've made some small changes, but I think that there are Members on both sides of this Committee, Democrats and Republicans alike, who are prepared to move on 16 of these proposals incorporated in the draft of ideas that you've presented us with, and I hope that we'll be able to do that. It would expedite everything that we're doing quite rapidly.
But I think that you must also take into cognizance that there are a number of provisions in your measure that give us constitutional trouble. Our lawyers, our witnesses that will follow you today from the American Civil Liberties Union and several other university organizations, are very deeply concerned and troubled about the fact that the court has already, for example, told us that indefinite detention is unconstitutional. We've got to get these guys, but indefinite detention has not been allowed by the courts up 'til now. So we know, without too much other discussion, that we may have some problems here on this issue. And feel free to address any of the comments that I'm making as soon as I conclude.
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Permitting information for illegal wiretaps performed abroad against United States citizens to be used in the Federal courts, as the Administration proposals—proposes, is—well, some have said it's unconstitutional on its face. Let me be more polite. We're deeply troubled. We're deeply troubled by it. And there are at least a half dozen other sections that I don't even know how I'm going to go on them until I've discussed it with the distinguished Members of this Committee and witnesses that we will be calling forward.
So what I want to assure you is that at the same time that we want to rearm you with the tools that you need, and know that at the same time you're conducting the fight already, you can't wait for this legislation, I want to assure you that this Committee is doing everything that it can possibly do to expedite that happening.
Now, know that the United States Senate has already indicated that they may be weeks away from a resolution. I'm not trying to slow you down, but there's no point in us trying to mark up a measure that we agree on tomorrow morning if it hasn't come from the printer, and we already know that the U.S. Senate Judiciary Committee under the esteemed Chairman Leahy has already indicated that they're talking about weeks. So this is a discussion between friends of how we get all this together and move forward in the manner that you've described to us. And I thank you for your kind attention.
Chairman SENSENBRENNER. Mr. Attorney General, the floor is yours. Do you wish to respond?
Attorney General ASHCROFT. Well, frankly, I don't know that I—it might be better to allow different Members to ask specific questions. I do want to recognize the fact that over the course of the last maybe 10 days, I've been working with individuals from the Minority Leader of the House to the Committee Chairman in the Senate. We've had lots of time together. The Ranking Member and I have spent time together. The Chairman and I have spent time together. We've invited the leadership of Committees of both Houses to confer with us about this measure, and we—we believe that this is a measure that should—that is the result of collaborative effort and work, and so there is reason for us to have substantial agreements.
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In regard to the areas where there are disagreements, I must say that we are confident that we have carefully considered those, that they are merited not only by the circumstances, but that they pass constitutional muster, and that they will serve America well.
I would just indicate that in regard to the pace of things, I think this is a time for leadership. I think we would be ill-advised to find a reason that someone else might be slowing down and indicate that we didn't understand the urgency that was appropriate to the ability to protect the American people. It's our position at the Justice Department and the position of this Administration that we need to unleash every possible tool in the fight against terrorism and to do so promptly, because our awareness indicates that we are vulnerable and this, our vulnerability, is elevated as long as we don't have the tools we need to have.
Chairman SENSENBRENNER. Mr. Attorney General, let me say that I am very strongly opposed to breaking this bill apart into several pieces. There are some easy provisions in your submission, and there are some difficult provisions. I think when we get the information, we should make a decision on the difficult provisions and let the Committee procedure in the House of Representatives work its will.
Let me also state that I have never been guided by how fast or how slow the Senate wants to work. I know that you are an alumnus of that esteemed body, but sometimes they have much more difficulty making up their mind than we do.
The gentleman from Pennsylvania, Mr. Gekas.
Page 24 PREV PAGE TOP OF DOCMr. GEKAS. I thank the Chair.
We welcome you of course, General.
Attorney General ASHCROFT. Thank you.
Mr. GEKAS. You stated as part of your presentation that pursuant to an Executive Order issued by the President the other night, that certain actions are being taken to freeze assets, et cetera. Today the President announced a separate Executive Order, I believe, that is aimed toward charitable organizations or front organizations that could be funneling monies to terrorist organizations. I'm wondering—I think this was aimed toward ostensibly a charitable organization, and the President wants that money blocked. And I agree with him. I think most of us do. The question is, if the donor believes that it truly is going for a hospital, but another arm of this organization is dealing with dynamite and terrorist activities, that that person should be absolved from any complicity in that.
My position is that every dollar that is given to a so-called charity frees up monies that could be used for terrorist activities. I am wondering how you feel about this particular Executive Order and in the context of what we're trying to prepare here.
Attorney General ASHCROFT. Well, thank you very much, Congressman Gekas. Our measure does seek to remedy a problem here, and let me just speak of it in two ways. Front organizations, so-called NGOs, advertise themselves as charitable organizations, but frequently divert very substantial assets to the perpetration of terrorist acts or the maintenance of terrorist networks. We need to be able to curtail the resources of those organizations. The President has taken the step to do so.
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The President's step is to freeze the assets of those organizations. Now, when we encounter criminal organizations in the United States, like drug trafficking, we don't just freeze assets. We seize assets, and we are in our legislation seeking to be able to seize the assets, not just to freeze them, not just to curtail activity, but to take those assets.
Number two, you mentioned if someone thinks they're giving to a charity, I think this is a serious question, but for individuals, in our proposal, who know or should know, in other words, the evidence is clear, and there's reason to know that this is not really a charity, that this is a front organization, then the responsibility would attach to such individuals.
So we're concerned on two fronts that what the President now has the capacity to do is to freeze the assets. We think that capacity should be elevated to the way the law enforcement deals with the assets of drug dealers and the like, to seize the assets. And secondly, we think the standards should be actual knowledge or should have known. That's a pretty high standard, but we don't want people to be responsible if they actually thought they were giving—appropriately thought they were giving to a charity.
Mr. GEKAS. But if they did know or had reason to know, then we would——
Attorney General ASHCROFT. We should act against them.
Mr. GEKAS. That deportability enters into the picture?
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Attorney General ASHCROFT. Yes.
Mr. GEKAS. Sanctions.
Attorney General ASHCROFT. Yes.
Chairman SENSENBRENNER. The gentleman from Michigan.
Mr. GEKAS. Can I inquire of the Chair how much time——
Chairman SENSENBRENNER. Well, we're operating under—you know, yielding of time equally on each side until the Attorney General departs.
Mr. GEKAS. Yes.
Chairman SENSENBRENNER. The gentleman from Michigan, to whom do you yield time?
Mr. CONYERS. Thank you, Mr. Chairman. I yield now to the senior Member of the Committee, the gentleman from Massachusetts, Mr. Barney Frank.
Chairman SENSENBRENNER. The gentleman is recognized.
Mr. FRANK. General, on one the procedural point, you submitted legislation, I guess, last week, which represented your best effort. And no one's good will is in question here. We're all trying very hard to do jobs that, frankly, none of us feel fairly adequate to do. This is a terrible task that none of us ever contemplated having to do when we got here, and we're doing our best. And I think it's a time when the collective wisdom is very likely to be better by far than what any one of us could do. I certainly benefited from that.
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The only point I would make is this: You have agreed, and the Majority and Minority have agreed to several changes that have, in my judgment, greatly improved the bill, A very effective law enforcement effort, while diminishing some of the concerns we would have had, and we've been able to do that by working together between Thursday and today. Another week would make it do even better.
It's no criticism of your work product to know that no one can excogitate the perfect bill here, and working together helped. We've already been able to make some improvements and enhance the area of agreement. I would ask urgently for another week to be able to do more of that rather than have us rush to a premature markup tomorrow.
And now let me just ask you a couple of substantive questions. I think it is essential that we upgrade our law enforcement capacity. Technology has changed, and we have a set of fiendishly skillful set of opponents, and we have to arm law enforcement. But we are aware of our own fallibility. I think every time we increase law enforcement's efficacy, as I want to do in many cases, we need to make sure the safeguards are there for those cases when we can make the mistakes.
First, with regard to increased surveillance, and I'm going to support increased surveillance to keep up with new electronic deals, but one of the problems we've seen historically is the inappropriate release of information garnered by surveillance, and one of the worst instances in history was the savage campaign of defamation waged by J. Edgar Hoover as head of the FBI against Dr. Martin Luther King, taking information he gained from surveillance; having found nothing criminal, nothing subversive, nothing incriminating, he released inappropriately personal and intimate information.
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I hope we will have in this bill a right for any individual about whom such information is released in a context other than the criminal or intelligence investigation, the right to go into Federal court under the Federal Tort Claims Act before a Federal judge and get damages from the Federal Government. We have got to build into this a bureaucratic departmental incentive to crack down on this kind of leaking, and I think if we are able to ensure people that we have done the maximum to prevent the inappropriate disclosure of this information, there is less concern about being gathered.
Similarly, with regard to asset forfeiture, yes, there will be times when we've got to get the assets. I hope we will have in this bill procedures that are as prompt and people whose assets were being taken having a chance to get them back, because we're never going to do it perfectly. You know we're going to take some assets we shouldn't take, and the former Chairman of this Committee, the gentleman from Georgia, the gentleman from Michigan and I collaborated on a bill dealing with asset forfeiture in general. So in both cases, if you're going to get increased surveillance, you're going to get it, let's do the maximum. And I don't want to say, oh, it's a criminal offense only if someone leaks, because the likelihood of that criminal prosecution being successful against the law enforcement person before a jury probably isn't that great. I want a citizen to be able to go under the Federal Tort Claims Act against the Federal entity that had that information and sue and get damages fairly easily, because we've got to get that disincentive along with other factors.
Secondly, I want there to be in areas, for instance, such asset procedure, as promptly as you can seize the assets, equally promptly an individual who has reason to argue that he was inappropriately the victim of that ought to be able to come back in. And, frankly, it's to be able to work these out to our mutual satisfaction if we have an agreement, But I think we need more time. I'd be glad to get a response.
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Attorney General ASHCROFT. Well, in regard to the asset seizure, I believe all the safeguards that you sought to—and put into the law last year would apply in settings like this. So to the extent that those are effective and work as well as we worked to develop those, they would operate in this setting.
Mr. FRANK. What about the release of information, because that's really been where we've had historically a pattern of abuse in the past, information gained for investigative purposes or intelligence purposes being inappropriately disclosed by our law enforcement people.
Attorney General ASHCROFT. I think the inappropriate leakage of classified information and information that is the product of these kinds of endeavors is a crime, and I know that there haven't been a lot of prosecutions in that respect, but that's—this proposal does not include private cause of action.
Mr. FRANK. Well, I would say, yes, it's been a crime. As you know, the Administration has been talking about and others have been talking about broadening that for information in general.
I will close with this. I don't want to broaden it for information in general, but——
Chairman SENSENBRENNER. At the suggestion of the gentleman from Michigan, the gentleman from Massachusetts' time is expired.
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Mr. FRANK. I want to say the individual ought to get that protection.
Chairman SENSENBRENNER. The gentleman from North Carolina Mr. Coble.
Mr. COBLE. Thank you, Mr. Chairman.
General, two quick questions. The Administration's bill includes provisions for the prosecution of certain computer crimes as terrorist offenses. What about this type of offense that makes it necessary to include them in the definition of terrorism, A? And, B, Mr. Attorney General, hypothetical question applying hindsight. Is it your belief that we could have possibly prevented this—these events of September 11 if the government had the authority that the Administration is requesting in this legislation?
Attorney General ASHCROFT. Well, I thank the Congressman.
First, to the question as to whether computer crimes could rise to the level of or could be categorized as terrorist acts, when you think about the utilization of computers in terms of air traffic control, you can imagine the chaos that could come from the disruption of that system if we had an assault launched through a computer virus or some other infection in the computer infrastructure, not to mention other very serious controls in our culture that relate to other infrastructure, whether it be power grids, power generation supplies and the like.
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Mr. COBLE. Yeah. I wanted that on the record, General, because some folks might think that was too far-reached. I just wanted it on the record.
Attorney General ASHCROFT. Well, you and I obviously are on the same page. We understand that these kinds of crimes can threaten the lives and well-being of multitudes of individuals, and they are far above the garden variety crime of—and I don't mean to say there's something easy about car theft or personal assault, but when you get into threatening systems and structure and infrastructure, it's substantial.
The second—you asked something about——
Mr. COBLE. The hypothetical that applied hindsight, which is always 20/20, could it have been avoided had we had the authority that the Administration is seeking?
Attorney General ASHCROFT. It—there is absolutely no guarantee that these safeguards would have avoided the September 11 occurrence. We do know that without them, the occurrence took place, and we do know that each of them would strengthen our ability to curtail, disrupt and prevent terrorism. But we have absolutely no assurance. And I cannot say to you that had we merely enacted these in August, that we would have curtailed this activity in September. Nor can I assure this Committee that we won't have terrorist attacks in the future. The mere fact that we can't do everything should not keep us from doing what we can do, and I believe these each are constructive, valuable tools to be used in the fight against terrorism.
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Mr. COBLE. And so do I. Thank you, General.
Thank you, Mr. Chairman.
Mr. CONYERS. Mr. Chairman?
Chairman SENSENBRENNER. Okay. The gentleman from Michigan.
Mr. CONYERS. Before I call on our colleague Mr. Berman, I'm just reminded, Mr. Attorney General, and to the distinguished Deputy Attorney General, Larry Thompson, that in our last week's meeting, it was you, Mr. Attorney General, that assured me and us on four different occasions that you would operate within the Constitution of the United States in making these laws. Is that not correct?
Attorney General ASHCROFT. I'm not prepared to say whether it was three or four times, but I assured you and I am willing to say to you that it is my conviction that these laws operate within the constitutional confines—the parameter of the Constitution.
Mr. CONYERS. Thank you.
And, Mr. Thompson, Deputy Attorney General, I counted you as assuring me three times to that same effect, that we'd work within the parameters of the United States Constitution, right?
Page 33 PREV PAGE TOP OF DOCMr. THOMPSON. I don't remember the exact number of—Mr. Chairman—Mr. Congressman, I don't remember the exact number of times, but I did assure you that, in my judgment, none of these provisions crossed any kind of constitutional divide.
Mr. CONYERS. Thank you very much.
I'm pleased to recognize Howard Berman, the distinguished colleague of ours from California.
Chairman SENSENBRENNER. The gentleman from California is recognized for 4 minutes.
Mr. CONYERS. Well, wait a minute. We can show the times, if that's okay with you.
Chairman SENSENBRENNER. I've been keeping track, Mr. Conyers——
Mr. CONYERS. Yes, but you——
Chairman SENSENBRENNER. You've taken 11 minutes——
Mr. CONYERS. We will divide the time among ourselves.
Chairman SENSENBRENNER. You have 4 minutes left total.
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Mr. CONYERS. Thank you.
Mr. BERMAN. Very quickly, a number of compelling recommendations. The notion that a grand jury investigation could produce information about a planned attack like the one that we saw on September 11 and you—and you cannot share that with——
Mr. ISSA. We cannot hear you.
Mr. BERMAN [continuing]. And you cannot share that with intelligence agencies, that law needs to be changed.
Two things stirring around of concern. One is that in your proposal, terrorist crimes are defined so broadly that any act of violence or any threatened act of violence not for financial gain is deemed a terrorist act. I'd like your reaction to that criticism. And secondly, that under this proposal, even though you never decide to prosecute, and you never decide to deport, you give—this proposal gives you or people you designate an ability to detain in perpetuity people in detention without limit, without requirement of deportation, without requirement of prosecution.
I'd just like the Justice Department reaction to those two criticisms from the public.
Attorney General ASHCROFT. First of all, I don't believe that our definition of terrorism is so broad as is represented there, and it is broad enough to include things like the assaults on computers and the assaults that are designed to change the purpose of government, the nature of government, and assaults that obviously have objectives other than financial or property objectives.
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Secondly, I don't believe that the law provides for an indefinite ability to maintain people in custody without deportation. Now, in emergencies it requires—it allows for a prolonged, but that would be subject to judicial supervision and subject to the safeguards that would be provided in the judicial system.
Mr. CONYERS. Thank you very much.
Mr. Chairman—I mean, Senator Ashcroft—I mean, Attorney General Ashcroft, as you realize, can calculate, there are 11 Members on our side who haven't said a single word. Could I appeal to you and your kind consideration and your very difficult schedule to accommodate at least these Members for a couple of minutes of observation or question?
Chairman SENSENBRENNER. Had the gentleman from Michigan arrived at the beginning of the hearing and in time to make his opening statement, the Chair announced that the Attorney General has to leave at 3 o'clock, and that the time from 2:30, which is when you concluded your delayed opening statement, until 3 o'clock would be divided in half between the Republicans and the Democrats.
Chairman SENSENBRENNER. The Chair further announced that Mr. Thompson would be able to spend an extra half hour and Mr. Chertoff and Mr. Dinh an extra hour and that this part of the hearing would conclude at 4 o'clock. And nobody had any objection to that, and I do think that we are lucky to have the Attorney General here for an hour; and he's here because we agreed to accommodate his schedule, because he is in charge of conducting probably the largest law enforcement operation in the history of the world with the horrific acts that occurred in New York and at the Pentagon. So the other——
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Mr. CONYERS. Mr. Chair, I addressed my appeal to the witness, not to you, sir.
Chairman SENSENBRENNER. Well, Mr. Conyers, you knew what the Attorney General's time frame was. Nobody——
Mr. CONYERS. I still address it to the witness, sir. If you'd let him respond, please.
Chairman SENSENBRENNER. Well, Mr. Attorney General, would you like to answer Mr. Conyers?
Attorney General ASHCROFT. Thank you, Mr. Chairman. I do have a responsibility that I'm required to meet at 3 o'clock. I have asked that these three individuals accompany me. Frankly, they are individuals of great expertise in all the areas here, and they are the individuals with whom we have been working over the course of the last 10 days or so to fashion these. They are expert to the extent that I am not. They are better at the technical aspects of this than I am, and I gladly confess that because they are persons of that talent. They are all individuals appointed by the President, confirmed by the United States Senate. They have line and substantive responsibility here, and I am pleased that they are available and willing to be here. Mr. Thompson has another compelling responsibility at 3:30. The others can stay later.
Chairman SENSENBRENNER. Mr. Smith of Texas will ask the last question of you, Mr. Attorney General.
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Mr. SMITH. Thank you Mr. Chairman. Mr. Attorney General, I have two questions. The first is prompted by an article in yesterday's Washington Post which described an individual with connections with radical Islamic extremists——
My mike is on, I don't know why it's not working.
Mr. Attorney General, let me repeat that. My first question is prompted by an article in yesterday's Washington Post. And let me read some of the excerpts from it. It describes an individual who had connections with radical Islamic extremists, possibly trained at terrorist camps in Afghanistan, had links to Osama bin Laden, and who enrolled in a flight school that grew suspicious when he wanted to fly a Boeing 747, having never flown even a single-engine plane and only wanted to know how to steer the plane, not to take off or land. The owner of the flight school was so concerned he called the FBI.
Unfortunately, under our current laws, they would not—the law enforcement officials were not able to obtain a search warrant. Is the Administration considering any measures that would allow for a search warrant in the future in that type of circumstance?
Attorney General ASHCROFT. We have not proposed an amendment to the standard for search warrants in this proposed legislation.
Mr. SMITH. Given the threat that an individual like that posed, that is something the Administration might want to consider.
Page 38 PREV PAGE TOP OF DOCMr. Attorney General, my second question goes to wiretap. And that is, as you may know, as I have been told that next month is going to—disposable cellular phones are going to be widely available in the United States. What is the Administration proposing in the changing of wiretap authority to address the kind of problem that that poses?
Attorney General ASHCROFT. Well, obviously, as individuals use cell phones and throw them away, and some of them are—it depends on how much you want to spend. You can make your phone disposable now. And some drug dealers do that. They don't use a phone very long, and they throw it away and they get another one. And we believe that that's the reason we want to have this ability for the surveillance authority not to be attached to a specific phone which ends up in a garbage can, but to be—the surveillance authority to cover the communications of a specific person. And not only should it be—follow the person, regardless of what phone the person is using, but it should be able to follow the person across jurisdictional lines.
And I think these are some of the things in the bill that have pretty broad support, because technology has simply rendered antiquated our weapons in this kind of surveillance.
Mr. SMITH. Okay. Thank you, Mr. Attorney General.
Chairman SENSENBRENNER. Thank you very much, Mr. Attorney General. Thank you for spending the hour that you have spent with us. I really appreciate your carving time out of the schedule that I know is crushing you. All of the Members of the Committee and our staffs on both sides of the aisle look forward to working with you as we try to put together legislation that will protect the American public from a future terrorist attack.
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Mr. CONYERS. May I add my compliments as well, Attorney General.
Attorney General ASHCROFT. Thank you Mr. Conyers. Thank you.
Chairman SENSENBRENNER. Thank you very much. Now, Mr. Attorney General, you can go off on your way, and Messrs. Dinh, Thompson, and Chertoff will continue on. Pursuant to the announcement that the Chair made and by unanimous consent with the Committee, we will consider questions of the three remaining witnesses under the 5-minute rule, and the Chair will announce that he will not recognize those that asked questions directly of the Attorney General. Everybody was here on time today, or most everybody, so the next up will be the gentleman from New York, Mr. Nadler, who is recognized for 5 minutes.
Mr. NADLER. Thank you, Mr. Chairman. Mr. Chairman, the World Trade Center is in the middle of my district, and I've been rather concerned, to put it mildly. I've been going back and forth from Washington like a yo-yo for the last 2 weeks, and the devastation is incredible. I'm certainly very sympathetic and supportive of legitimate and reasoned attempts, (A) to destroy the people who did that and who may do it in the future and, (B) to improve our legislation, our law, so that we can protect ourselves. But I'm also mindful of the fact that emergencies very often, and hasty consideration during emergencies of legislation, far-reaching legislation, very often leads to unfortunate results that we regret later.
For example, many of the immigration provisions of the Anti-Terrorism Act of 1996 enacted in the aftermath of the Oklahoma City bombing—which it turned out, unknown to us at that time, had nothing to do with immigration—came from a domestic terrorist.
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Let me ask you—and I want to join in urging that this legislation—that we be given a couple of weeks and not try to mark it up tomorrow, because we have to get out the language that we haven't seen yet. Our public groups outside this body ought to have a time to review, send us their comments. We ought to have time to consider it so that we act judiciously, and there's no reason we can't have legislation on the books in a few weeks. But we have to have a couple—a week or two to do it right.
But let me ask you this. The Attorney General said something I think that was incorrect a few minutes ago. I have two questions for you. One, he said that this didn't—that this bill did not authorize indefinite detention without a hearing before a judge.
I refer to section 202 of the bill: The Attorney General shall maintain custody of any such alien until such alien—the Attorney General shall take into custody any alien who is certified—this is subparagraph 3. Paragraph 3 says the Attorney General may certify an alien to be an alien, he has reason to believe, no evidence, just reason to believe, may commit further or facilitate acts described in section, et cetera, or engage in any other activity that endangers the national security of the United States.
In other words, the Attorney General decides he has reason to believe that this guy is a terrorist, or may be a terrorist. Doesn't have to show a judge any evidence of that. He has reason to believe that, and then he shall maintain custody of any such alien until such alien is removed from the United States. Such custody shall be maintained irrespective of any relief from removal the alien may be eligible for or granted until the AG deems such alien—until the Attorney General deems such alien is no longer an alien and may be certified pursuant to paragraph 3. The Attorney General under this provision has carte blanche to decide that someone, until he can be removed—even if someone says he shouldn't be removed—should stay in jail forever, with no evidence before a judge.
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Now, the next paragraph says that habeas corpus may only—that judicial review may only be had by habeas corpus in the U.S. District Court for the District of Columbia. But the judicial review would seem to be only with respect to the question of whether the Attorney General has reason to believe. And there's no standards.
So that's question number one. And that would seem to indicate that the Attorney General has basically carte blanche, with only ministerial judicial review, to put someone in jail and keep them there forever with no evidence.
My second question is section 152 of the bill, according to your summary which I'm reading from, allows the issuance of a generic order to law enforcement officials so they can pursue investigations in many places, without having to return to the FISA court to get an order naming specified persons who can assist in the investigation, e.g., custodians, landlords, or telephone companies.
I'd like to know how you square that provision with language that says no warrant shall issue, but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. That's the fourth amendment to the United States Constitution. Those are my two questions.
Mr. DINH. Yes, Mr. Chairman. If I may, I will take the first part of the first question of the Congressman, because I have obviously significant personal experience and some professional experience with the immigration laws of this country. And then I would defer to my colleagues, Mr. Thompson and Mr. Chertoff, with respect to their experience under the FISA statute.
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Under current law, a person who is removable, deportable, or excludable for terrorist activity is subject to mandatory detention. That is current law.
Mr. NADLER. Excuse me. But who decides that he is removable for terrorist activity? According to this, it will be the Attorney General, with no evidence necessary whatsoever.
Mr. DINH. This does not, this does not affect that current law with respect to removability for terrorist activity. What this does, however, is that for the class of aliens who are removable for other purposes, for other reasons, be they out of status, have committed a crime that makes them subject to removability, for those aliens who would go be in front of an immigration law judge and be detained in the normal course, where the Attorney General has reason to believe that that alien poses a threat to national security or is likely to commit a terrorist act, he may certify so, and therefore that alien may be detained.
Mr. NADLER. But he doesn't—but the Attorney General can certify it because he doesn't—because he happens to dislike this person, because there's no requirement of any evidence given to a judge to justify the certification.
Mr. DINH. He cannot certify the grounds for removability, Congressman. He can certify the threat to national security that would——
Mr. NADLER. But that threat to national security is solely by his dictate, doesn't have to be before a judge, and enables him to hold that person indefinitely.
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Chairman SENSENBRENNER. The gentleman's time has expired. The machine's not working properly.
Mr. DINH. Let me just clarify one thing. It is not indefinite. It is only pending the removal proceedings. If at the end of those removal proceedings the person is found to be not removable, then that person goes free. Pendency of that proceeding, there is still judicial review via habeas corpus, as you have mentioned, Mr. Congressman, and during that period that review would be under the normal judicial and constitutional habeas procedure.
Mr. NADLER. But there is no requirement in here of a removal proceeding.
Mr. DINH. Under current law there is. Well, if there is no removal proceeding, if the alien is not removable, the INS commissioner cannot institute removal proceedings in the first place, so it would not be——
Chairman SENSENBRENNER. Mr. Nadler, your time has expired and——
Mr. NADLER. It's important to get the question answered, Mr. Chairman.
Chairman SENSENBRENNER. I know, but it's also important that as many Members as possible be able to ask questions before 4 o'clock. The gentleman from——
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Mr. NADLER. That just shows the problem with rushing this legislation so fast. Shouldn't we find out what it says and what its implications are? Is our only requirement that we meet the clock, or are we trying to do something responsible here?
Chairman SENSENBRENNER. No, we are not beating the clock. The procedure that we are following now is at the specific request of Mr. Conyers, who asked if officials from the Justice Department could testify for a period of time after the Attorney General has to leave. We have officials from the Justice Department for 2 hours. We will then have the panel which the Democrats have asked for an hour and a half, from 4:30 until six o'clock. The Chair is trying to do his best to have as many Members as possible ask questions, which means that running on after the 5 minutes takes away from one's colleagues' time. And I haven't asked any questions and don't intend to.
Mr. CONYERS. Thank you, Mr. Chairman. I want to agree with you in part, but point out that it was the witness that was speaking when the time expired. It wasn't the Member on the Committee. And he was merely concluding his response to the question that had been timely posed.
Chairman SENSENBRENNER. Well, there were a couple of follow-up questions, and that's where the problem comes.
Gentleman from Virginia, Mr. Goodlatte.
Mr. GOODLATTE. Thank you, Mr. Chairman. Deputy Attorney General Thompson, gentlemen, all, we very much appreciate your taking this extra time. And I also want to say that I strongly support this legislation, with some concerns that some elements of it need some fine-tuning, and I'd like to address some of those.
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As you know, under your current authority, to engage in obtaining what are called pen register information and trap and trace information. With regard to telephones, the information you get with a pen register is the telephone numbers that are dialed to from the call. With trap and trace, it is incoming information. With pen register, it's outgoing information, as I understand it.
With regard to the use of this authority, when we expand it as this legislation does to the Internet and in particular to e-mail messages, it raises some gray areas; because the information that can be obtained can have a number of different gradations.
Do you expect that the proposed expanded pen register and trap and trace authority would allow content such as header information; that is, the subject line of the e-mails, which gives you more information than just a telephone number, would be captured by these devices?
And what about URLs for Web surfing? Would you be capturing that information? You're going beyond just getting somebody's e-mail address when you obtain those pieces of information without going through all of the other procedures you have to go through to get a court order for a wiretap, which obviously entails a much greater burden on you but would allow you to get, you know, substantive information about the nature of conversations.
Mr. THOMPSON. With respect to the header information, I do not believe it would apply there to the proposal. And, Congressman, with respect to—the question was asked to us by Congressman Nadler, a very fundamental point that needs to be made with respect to that. Section 152 covers FISA, FISA orders. FISA orders are subject to foreign powers or agents of foreign powers. They do not implicate U.S. citizens, Congressman, so your concerns there would not apply.
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Mr. GOODLATTE. I'm not concerned about what you are gathering outside of the realm of communications by United States citizens. But I'm concerned that the terms ''routing'' and ''addressing'' need to be clarified to show that the intention of acquiring information about each message is limited to the destination or the termination of such communication, as it is with telephone communications rather than going beyond that.
Mr. THOMPSON. Mr. Chertoff will answer that direct question.
Mr. CHERTOFF. Congressman, let me see if I can answer it without getting excessively detailed. What that provision is designed to do is to really have technological neutrality to do in the area of e-mail what we do in the area of telephone with respect to trap and tracing and pen register. What we're looking for is addresses and information that tells us who sent the material and where the sender is addressing the material. We're not looking to get into content. Everybody understands that if you want to get into the area of content, you have to go and get a title III order.
So, as we understand this provision, it's not going to alter the fundamental legal distinction between getting a pen and trap for addressing information and getting a title III for content. We're not looking to get subject lines. We're not looking to get into the specifics of what somebody read when they were on the Internet, without going to get a title III.
Mr. GOODLATTE. I take it from that, that you would be willing to work with the Committee to make sure that the language in the legislation is clear in that regard.
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Mr. CHERTOFF. I'm sure we would, yes.
Mr. GOODLATTE. One more question. Some have suggested that the legislation should be limited to terrorist activities and not affect crimes in general. Is there any problem with such a limitation?
Mr. CHERTOFF. Again, Congressman, I understand the impulse behind that. But let me say that often when you commence a criminal investigation, it doesn't come labeled terrorist or nonterrorist. In fact, this provision, and a number of the provisions really address inconsistencies in the law where under one type of technology we are able to do one thing, but emerging technology has created a gap in the law. There's no change in the privacy protection substantively. We're trying to just even the playing field.
As to those types of issues, there's no reason to limit it to terrorist activities. And, in fact, it will often be the case that terrorist groups engage in other kinds of criminal activities to finance or support their terrorism. So I think if we're going to be comprehensive and make sure we are not merely locking the barn door for the last horse, but we're locking the barn door for the next horse, we have to address some of these technological gaps right now.
Mr. GOODLATTE. That's a fair answer.
Chairman SENSENBRENNER. The gentleman's time has expired. The gentleman from Virginia, Mr. Scott.
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Mr. SCOTT. Thank you Mr. Chairman. And I too want to express my frustration about the time limitations. The terrorists could not undermine our freedoms, but as we consider this legislation that might be exactly what we're doing.
Americans have an expectation of privacy. They don't expect government officials to be listening in on their private conversations. They have a belief and a presumption of innocence. And we know that many innocent people will have their conversations listened into, and not by computers, but by people that may be their neighbors, friends, coworkers. You go to a PTA meeting and somebody may be a government official who may be—may have just listened in on private conversations. You don't know.
And that's why we want to limit the use of these investigatory powers to those where they're definitely needed. And this bill contains significant changes in wiretap law, significant changes in civil and criminal law, immigration law; they apply to everything, not just terrorism. They're not limited to terrorism. Some of these are fairly easy and straightforward. We could agree and get them passed.
But doing this on such an accelerated basis causes significant problems. For example, we're going back and forth between intelligence gathering and criminal law, and there are differences. Intelligence gathering, you don't need any predicate criminal trial. You just want to get the information, but it's limited to people that aren't citizens.
On the criminal side, you have to actually be investigating a crime. Now, when you start going back and forth, you just may be gathering information. And so we have to be very, very, very careful. Now, whatever process we use will cover guilty people as well as innocent people. And in that light, if someone—if someone has the foreign equivalent name of John Smith, and you put somebody on this list with secret evidence and it turns out it's not the same John Smith, how and when can they get their property back if you've taken their property?
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Mr. Thompson.
Mr. THOMPSON. Congressman, the ability of the Intelligence Community to share information with law enforcement authorities and vice versa is critical to our fight against terrorism. The situation is the left hand has to know what the right hand is doing. This is a problem with respect to our foreign intelligence investigations. This is a problem that has really plagued some of our cases that the Department of Justice has.
Mr. SCOTT. I'm sorry, Mr. Thompson, I only have less than 5 minutes, and I just want a specific question. If someone has their property taken, they're the wrong person, how and when do they get their property back?
Mr. THOMPSON. Well, nothing in this provision forestalls the constitutional—the right of a citizen to sue the Federal Government or law enforcement officials for doing something wrong in violation of the Constitution, pursuant to Bivens.
Mr. SCOTT. In this case, have there been cases of mistaken identity?
Mr. THOMPSON. I'm not aware of any case of a mistaken identity in connection with the foreign surveillance. But, Congressman, these——
Mr. SCOTT. Well, I mean there's news reports that say that some people have been identified as people that were on the plane, subsequently determined to be people of the same name as others.
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Mr. THOMPSON. This is not—this does not arise in the—this does not arise in the Foreign Intelligence Surveillance Act.
Mr. SCOTT. And my question is, if you have a businessman who is conducting his business, gets put on the list because he has the same name as a terrorist, and disrupts his business because you have taken his property, my question is how and when does he get his property back?
Mr. THOMPSON. You would not be taking his property. What you would be doing is sharing information with authorities so that if perhaps this person is a terrorist, you will be able to prevent or disrupt that kind of activity. Heretofore, without this kind of—without this kind of legislative change, it's going to—it has been very difficult——
Mr. SCOTT. Okay. Well I don't think you're understanding the question, because you're suggesting that you are not taking people's property if their name is on the list.
Let me ask you another question. Maybe I can get answer to that one. When you want the search wiretap warrant to go with the person and not with the particular phone, what is the protocol to make sure that someone else unrelated to the terrorism, unrelated to the drug dealer or anything else, who uses the same phone, a pay phone, for example, what is the protocol to make sure you are not listening in on those conversations?
Page 51 PREV PAGE TOP OF DOCMr. CHERTOFF. I think, Congressman, it's the same protocol we use now. I mean when we go up on wiretap on the telephone in a house, let's say, under title III there are instructions that are given concerning making sure that if someone else uses the phone, you are not listening to that person for an extended period of time.
What I think is important about these provisions is none of them is a revolution in the law. All of these are techniques and principles that we have been applying for 20 or 30 years in some context. We are simply trying to apply them across the board so we don't have gaps in the coverage. And I think it's the gaps in the coverage that you see in the press and you see even Congress itself has noted in the past as creating problems in terms of our ability to address a potential terrorism.
I should also say that although, Congressman, you have made reference to the notion that people are going to be put on a list and have their property taken, as I understand this legislation, you—we're talking about forfeitures after conviction; we're not talking about putting people's names on a list and taking their property. So that I don't think is a dramatic change in the way the law operates. It doesn't change the balance between law enforcement and privacy. What it tries to do is make it more efficient and to make it more streamlined.
Chairman SENSENBRENNER. The gentleman's time has expired. Gentleman from Ohio, Mr. Chabot.
Mr. CHABOT. Thank you, Mr. Chairman. As President Bush has said before, the vicious terrorist attacks of September 11 represented nothing less than a declaration of war against our country. To win this war, we must use every investigative law enforcement and military resource at our disposal to find and punish the individuals or governments responsible for these terrible crimes.
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In my hometown of Cincinnati, just as in the rest of the Nation, there's shock, there's outrage that anyone could have perpetrated such unspeakably evil acts. People want the full power of the United States to be used against the cowards who carry out these attacks against innocent men, women, and children; and people want a reasoned examination of what additional steps can be taken to combat terrorism and enhance public safety.
As we move forward with efforts to combat future terrorist attacks, we must remember that freedom is the foundation of our Nation. The terrorists want to change our way of life. They want to put fear in our minds and they want to suspend our liberties. We must not cave in to their demands by suspending or weakening our constitutional rights. Our goal must be to eliminate terrorism and make sure that all nations and the supporters of terrorism understand that an attack on the United States brings grave consequences. At the same time, we must protect the freedoms that we as representatives of the people have been entrusted to defend, the freedoms that thousands of American men and women have sacrificed their lives to defend those freedoms—we should always keep that in mind—the freedoms that make the United States of America the greatest country on the earth.
I do support many of the proposals that the Attorney General has put forward. However, I also have concerns over some of the provisions, as many of my other colleagues, both on the Democrats and Republicans have, which could have a real impact on our citizens' individual liberties. The freedoms that we enjoy as Americans and the limitations on the government that our system provides were won at a real cost.
With that in mind I just have a couple of questions. Section 107 of the proposed bill would expand the range of records that law enforcement officials may compel communications companies to make available without a court order, such as credit card information. The example used in the consultation draft pertains to credit card records as a means to determine the user's true identity.
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What types of transactions or purchases would the Department of Justice deem to necessitate such an order? Specifically, what products or services would subject a consumer to the scrutiny of the Federal Government? And secondly, how would the DOJ insure that the financial privacy of innocent law-abiding citizens is protected, especially given the potentially wide array of purchases which may be subject to such an order?
Mr. CHERTOFF. Let me see if I can answer both of those briefly. The reason we're interested in credit card information is because often people who are engaged in criminal activity are not using their real name, or they may be moving from place to place. And we want the credit card information to determine who is paying for the service. In other words, who's paying Yahoo or AOL or whomever it is. This is not a provision that would get into the substantive purchasing that people engage in over the Internet.
Secondly, I should say with respect to the subpoenas, this is all confidential information that's held by law enforcement. It's not material which would be made public and therefore it would safeguard people's financial privacy.
Mr. THOMPSON. Congressman, may I just add that—and I understand your concerns. And as we have tried to fashion this—this legislation, what we have considered is really how the terrorist acts in today's world. The terrorist acts globally. The terrorist acts across the country. The terrorist acts smartly and quickly. And what this legislation is designed to do is to give the Department of Justice and law enforcement officials tools to react to that kind of way of doing business that the terrorist has engaged in; to not only allow us to catch them and bring them to justice, but to disrupt and prevent their activity. And if we're going to do that, if we're going to be engaged in disruption and prevention, we're going to need to have all the information we possibly and reasonably can and we are going to need to be able to react quickly. And that's what this proposed legislation is designed to do.
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Mr. CHABOT. Thank you. Yield back the balance of my time, Mr. Chairman.
Chairman SENSENBRENNER. The gentlewoman from California, Ms. Lofgren.
Ms. LOFGREN. Thank you, Mr. Chairman. Yesterday I, along with several other Members of the House, went to New York City. And I must say that to be there at the site of the former World Trade Center and to look at the damage done and the pictures of thousands of people who are lost, and probably forever, is an overwhelming experience. And I found myself today attempting to temper the anger that I feel, and I think all Americans feel, at this assault on our country. Because if we damage the Bill of Rights in the process of pursuing the wrongdoers, the terrorists will have won. And so we need to make sure that we preserve and defend the Constitution of the United States and the Bill of Rights that gives us our freedom.
Now, frankly, looking at this draft, I think there are some things here that all of us agree about and that we could do very quickly. I think there are some areas that with some further working we might quickly come to an agreement. And I think there are some areas that have serious flaws.
And without getting into a debate, I do have a very strong concern, Mr. Dinh—and I didn't have a chance to talk about this over the weekend—but the—that the indefinite detention is a real issue, because there is no time line during which the deportation proceedings must be undertaken. And so the effect really, I mean, and the Court's been very clear, and even recently in terms of those who cannot be deported because of persecution or failure of the origin country to accept the deportee, that you can't keep someone in indefinite detention and be constitutional. So we are going to need to work through those issues.
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Chairman SENSENBRENNER. If the gentlewoman will yield at this point, Mr. Thompson's time has expired, but yours has not. So you are excused, and Messrs. Chertoff and Dinh will stay.
Ms. LOFGREN. All right. The question I had next was for Mr. Thompson, but perhaps we'll have another opportunity to visit that.
A lot of concern has been expressed in some circles about the search warrant and wiretap provisions that will become nationwide in scope. On the other hand, we also know with the mobility that exists in this society and the disposable phones, that there's a technology issue that also needs to be dealt with.
I'm wondering if in your judgment, section 152, the FISA Court roving wiretaps, section 108, the nationwide search warrant section, and section 351 might achieve your goals and yet be markedly assisted in terms of civil liberties by requiring that the court with jurisdiction actually would have original jurisdiction in that the offense or the person was present, number one; and number two, that the Court might be asked to produce a finding and additional order that the scope be nationwide; that that wouldn't just be an assumption that there would be some representation and judicial finding as to the nationwide scope of the order.
Would that—wouldn't that solve some of the concerns and also achieve your goals?
Mr. CHERTOFF. Congresswoman, I think, you know, we were very sensitive to that when we put together the legislation. As I understand the proposal, it would require that we go to a court which does have jurisdiction over the offense.
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Ms. LOFGREN. It does, but it doesn't appear to be in each one of those sections.
Mr. CHERTOFF. Well, I think if that were to be an issue, I think we could probably address that. And the point is we're not looking to shop to find a court somewhere that's unrelated. We want to pick a court that is in fact connected with the offense. I think, though, that once we have done that, there is no element of civil liberties that is sacrificed by allowing that court to exert nationwide process. We already do that in other areas and I think this would just be consistent.
Ms. LOFGREN. The concern that has been raised by some in the civil liberties community has been the particularity requirement that might be dealt with by the court order. But without going further, I wanted—and maybe you can answer that, perhaps only Mr. Thompson could. It seems to me, I mean there are serious flaws in some of the immigration-related provisions. But I want to ask about what we could do now in the administration of the laws that really don't require a change in the law.
For example, and I—you know, just in what's in the paper, it appears that the individuals who are the subject of concern entered in most cases, upon inspection they were on watch lists. They got visas, and apparently there has been a failure of communication and computer communication. And I'm wondering what we might do to upgrade the biometrics, the computer sharing of information relative to inspected entry.
Mr. DINH. Congresswoman, thank you very much and rest assured that our colleague, Jim Ziegler, is working hard as is everybody at the INS in order to meet the enhanced threat. Whatever we can do administratively, we are already doing or exploring ways of doing.
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That said, there are things that we need your help on legislatively. For example, in two of the provisions with respect to—specifically to the watch list, we proposed that that watch list be—to have the ability to share with our partners, our multilateral partners, in the ability for them to help us in looking out for these individuals; likewise, with respect to the sharing of some of our criminal record information, so the INS can enhance ability to——
Ms. LOFGREN. And you notice I've not asked about those provisions.
Chairman SENSENBRENNER. The gentlewoman's time has expired. The gentleman from Georgia, Mr. Barr.
Mr. BARR. Thank you, Mr. Chairman. The question I have is a very fundamental one and we've touched on it a number of times today, and I still don't have a satisfactory answer to it. The essence of the question is if we are interested in proposing here changes to criminal law and criminal procedure to attack international terrorism, why is it necessary to propose a laundry list of changes to criminal law generally and criminal procedure generally to cast such a wide net, and why is it necessary to rush this through?
Does it have anything to do with the fact that the Department has sought many of these authorities on numerous other occasions, has been unsuccessful in obtaining them, and now seeks to take advantage of what is obviously an emergency situation to obtain authorities that it has been unable to obtain previously, even though the government cannot tell us in the Congress, with any degree of certainty or with any specific examples, that had these authorities been available to the government prior to September 11, they have some confidence that these events could have been prevented.
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If you look, for example, as examples of my concern and I think the concern of another—a number of other Members on both sides of the aisle, we see many, many provisions in the Administration's proposal that have nothing specifically to do with fighting terrorism, but yet apply generally to all criminal offenses or all criminal procedures.
This proposal would seek to institutionalize and justify the government's use of Project Carnivore, for example, not limited to fighting terrorists. Expanded dissemination of wiretap information to any government employee is not limited to terrorist information. Use of wiretap information from foreign governments is not limited to antiterrorist or terrorist information or activity, but would provide, I think, a gaping loophole through which our government could use information which, if gathered directly by our government, would be unconstitutional and therefore inadmissible if a foreign government collects it.
Multipoint roving wiretap authority is not limited to incidents of or investigations involving terrorist activity, but applies generally. The lower standard—lowered standard for foreign intelligence surveillance would not apply simply to terrorist or antiterrorist information. Broad access by administrative subpoenas, which for the public means subpoenas issued not by a judicial officer, but simply by an administrator in the Department of Justice and therefore, with no judicial oversight, would apply across the board, not just to terrorists or antiterrorist activities.
The authority to conduct secret searches, so-called black bag operations, where contemporaneous notice is not given, which is the norm currently, would be authorized; not limited to terrorist or antiterrorist cases.
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I really would appreciate something more than just generalities, if you all could. Why it is necessary, without proper hearings, without due deliberation and input, to dramatically change provisions of U.S. criminal law and criminal procedure across the board simply to attack the problem of terrorism; and why would the Department not agree to simply address those provisions that do relate to terrorism, which we can all agree on—there are some gaps in the government's current arsenal to fight terrorism—but allow us somewhat more deliberative process to address these other fundamental concerns and across-the-board changes.
Mr. CHERTOFF. I'm—I don't think I'm going to have the time to address each one of those items. But I do want to try to address some of them and talk generally. I think the Department was very careful when we put this together not to engage in the temptation to treat it as a laundry list of all the things we wished we could have. At the same time, I'm confident in saying that every one of the provisions we have put in here is extremely important in fighting terrorism.
That's not to say that they don't have relevance in some instances to other kinds of crime. But they're, all of them, related quite specifically to what we need to do to be more effective in fighting terrorism.
And let me address some of the issues that you've raised, Congressman. You've talked about the need to share FISA information, foreign intelligence surveillance information. Well, by definition, that involves national security information, either terrorism or espionage, and I think we can all agree that those are critical threats to the United States. What we're trying to do is, as Mr. Thompson said, is make sure one hand knows what the other——
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Mr. BARR. But foreign intelligence is much broader than terrorism.
Mr. CHERTOFF. It includes espionage, for example, as well.
Mr. BARR. Which is already against the law and for which the government already has plenary authority to investigate and prosecute.
Chairman SENSENBRENNER. The gentleman's time has expired. The gentlewoman from Texas, Ms. Jackson Lee.
Ms. JACKSON LEE. Thank you very much, Mr. Chairman. It is obvious by the extended questioning of the Members that this is not enough time, though I do want to thank the gentlemen, thank General Ashcroft, who I wish could have stayed, and thank the deputy Attorney General, Mr. Thompson, as well.
My opening remarks will simply be I ask that you take a message back. I believe some 4 or 5 years ago, when we entered into this process, in 1996 I believe, we had 4 days of markup. I would ask that the message be taken back that there are many of us who want to do the right thing. We want to do it collaboratively. We want to do it in a bipartisan way that respects the rule of law.
Let me briefly say that I'm probably going to give you a number of issues that I hope are instructive, and then probably will have to receive some of these answers by way of independent communication. Yesterday in an open ceremony that was held in New York, one of the religious leaders indicated that we should not consider that 6,000-plus people died as much as we should consider 6,000 times one. One person died, 6,000 times. The reason is the impact on the loved ones of that one person should be something that we never, never forget. And I agree with that.
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And I hope this process in this hearing room does not suggest to you that we diminish what you have to do. But at the same time, this room should represent what it is, the Judiciary Committee, with oversight on the rule of law, the Constitution and the Bill of Rights that all of us cherish and want to protect.
My first question is, I understand that the Attorney General has said you have detained 352 individuals. Can I quickly get an answer as to whether they're still detained and whether they were detained under current law?
Mr. CHERTOFF. I think the answer is that everybody who has been detained has, of course, been, as far as I understand it, detained under current law. And they're all working their way through the process under the existing law and regulations.
Ms. JACKSON LEE. And are they presently still detained?
Mr. CHERTOFF. I can't tell you as we speak here, because I have often found that between 1 hour and the next the situation changes.
Ms. JACKSON LEE. Thank you very much. I would want to pursue that in terms of the current law that you use to detain these individuals. I think that is key.
Let me also say that I understand through the spring of 2001, that there were several indicators that the FBI had that something was awry. The question that I'm going to want to hear, whether I have time to hear it from you now, is when the FBI gathers such material, where do they translate that material and what kind of actions are then translated?
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Let me thank the FBI and the Department of Justice for what you have thwarted. But I do think there is something wrong with the system in communicating information. Particularly, my interest, serving on the Immigration Subcommittee, is where that information gets translated into the INS and how it does.
Let me give my list of questions, and I might have to subject myself to not getting your answers right now, particularly on the question of visas. Visas are handled by the State Department. INS has the authority of oversight once they're here. Have you presented anything in collaboration with the State Department that we might change that process, whether we put it all under one operation, whether there is more dialogue? That's where the question came. Some of these people, the 19 that are on the original list, were here legally. I want to raise that question. The Mexican border, I understand, from where I come from, has stringent enhanced security. My question is, what's happening at the Canadian border? And I understand there is some. But we have looked at what we might have to change with respect to the Canadian border and as well the Canadian immigration procedures that are of concern to all of us.
What my points are in making—raising these issues, and I'm going to quickly finish so I can get to the immigration, so you can answer those questions, is we need time to deliberate. You have a situation where you're holding someone responsible for contributing to a group that may have been legal 5 years ago. Suppose it's the Christians for Democracy in Ireland? What do you do? Hold that person as a terrorist?
My last question would be, do you see the viability of an expedited court review system throughout all of these changes? Because I agree with Mr. Barr as to whether or not we're just trying to change the criminal code or we're trying to ferret out terrorists, we need to do this in a deliberative manner.
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I would appreciate greatly if you would answer the immigration questions and the cross-pollination of sharing information, because I feel that is where we had more than a lot of trouble, as I acknowledge the work you've done. I yield to the gentleman.
Mr. CHERTOFF. I appreciate that, Congresswoman. I'm going to let Mr. Dinh speak to the immigration issue, but I'd like to speak to the cross-pollination issue, because I think you've put your finger on exactly one of the problems we're trying to address here, which is making sure one hand knows what the other one is doing.
It is wonderful to collect information. But if we can't make use of it, it is a colossal waste of time. One of the critical cornerstones of this legislation is designed to make an amendment in the language of the Foreign Intelligence Surveillance Act that we believe restores the original intent, that allows us to use court-ordered electronic surveillance to get information on potential terrorists, people who are agents of a foreign power, and make sure it gets communicated in a timely fashion to those criminal justice authorities who can arrest people and incapacitate them so that they are no longer out on the street, available to plant a bomb or hijack a plane.
Unfortunately, the way the courts have interpreted the law up to now, they have made it very difficult to bridge that gap. And we've been in the unenviable position of sometimes having intelligence information in the possession of the FBI that the law appears to prohibit them from sharing with the people who would go out and make the case and make the arrest and incapacitate these people.
Page 64 PREV PAGE TOP OF DOCThat is why section 153 of this legislation is critically important. It restores what I think is the original intent of the law, to make sure that there is adequate protection, court protection against surveillance, but a reasonable sharing of information.
With that, I'll let Mr. Dinh address the immigration matters.
Mr. DINH. If you will notice, of the list that we have proposed for the information sharing in sections 103, 154 and 354, that list is limited to specified individuals. The individuals listed include national security, national defense, law enforcement, intelligence and, importantly for your question, immigration individuals, precisely for the reason that you have highlighted. When we have information that is critical in wiretap situations, in FISA situations, or in grand jury situations, we do not have the capacity in order to share that information with key individuals, especially in the immigration or consular activities, so as to prevent this type of—exactly the type of situation you have highlighted, Congresswoman.
Ms. JACKSON LEE. I thank you. I know I have additional questions, but I thank you, Mr. Chairman.
Chairman SENSENBRENNER. The gentlewoman's time has expired. Gentleman from Utah, Mr. Cannon.
Mr. CANNON. Thank you, Mr. Chairman. I first want to express first my frustration with the terrorists and their lack of concern over our deliberative process here. S