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2005
REAUTHORIZATION OF THE USA PATRIOT ACT (CONTINUED)
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
JUNE 10, 2005
Serial No. 109–29
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
REAUTHORIZATION OF THE USA PATRIOT ACT (CONTINUED)
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21–913 PDF
2005
REAUTHORIZATION OF THE USA PATRIOT ACT (CONTINUED)
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
JUNE 10, 2005
Serial No. 109–29
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
DANIEL E. LUNGREN, California
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
SPENCER BACHUS, Alabama
BOB INGLIS, South Carolina
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
DARRELL ISSA, California
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
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JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
RICK 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
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California
CHRIS VAN HOLLEN, Maryland
DEBBIE WASSERMAN SCHULTZ, Florida
PHILIP G. KIKO, General Counsel-Chief of Staff
PERRY H. APELBAUM, Minority Chief Counsel
C O N T E N T S
JUNE 10, 2005
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OPENING STATEMENT
The Honorable F. James Sensenbrenner, Jr., a Representative in Congress from the State of Wisconsin, and Chairman, Committee on the Judiciary
The Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary
WITNESSES
Ms. Carlina Tapia Ruano, First Vice-President, American Immigration Lawyers Association
Oral Testimony
Prepared Statement
Mr. James J. Zogby, President, Arab American Institute
Oral Testimony
Prepared Statement
Ms. Deborah Pearlstein, Director, U.S. Law and Security Program
Oral Testimony
Prepared Statement
Mr. Chip Pitts, Chair of the Board, Amnesty International USA
Oral Testimony
Prepared Statement
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APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary
Prepared Statement of the Honorable Sheila Jackson Lee, a Representative in Congress from the State of Texas
Responses from Amnesty International to request for additional information requested by Chairman Sensenbrenner
''Behind the Wire,'' submitted for the record by Deborah Pearlstein, Director, U.S. Law and Security Program
''Getting to Ground Truth,'' submitted for the record by Deborah Pearlstein, Director, U.S. Law and Security Program
''Guantanamo and Beyond: The Continuing Pursuit of Unchecked Executive Powers,'' submitted for the record by Chip Pitts, Chair of the Board, Amnesty International USA, and Congressman John Conyers, Jr.
Materials for Hearing Record, ''Reauthorization of the USA PATRIOT Act (Continued),'' (June 10, 2005), submitted by Congressman John Conyers, Jr.
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Article, James Sturcke, ''General Approved Extreme Interrogation Methods,'' Guardian, March 30, 2005
Article, Bob Herbert, ''America a Symbol Of . . . ,'' New York Times, May 30, 2005, available on Westlaw at 2005 WLNR 8545594
Article, Neil A. Lewis & Christopher Marquis, ''A Nation Challenged: Immigration, Longer Visa Waits for Arabs,'' New York Times, November 10, 2001, available on Westlaw at 2001 WLNR 3372678
Article, Bob Herbert, ''Stories from the Inside,'' New York Times, February 7, 2005, available on Westlaw at 2005 WLNR 1682135
Article, Tim Golden, ''Threats and Responses: Tough Justice; After Terror, a Secret Rewriting of Military Law,'' New York Times, October 24, 2004, available on Westlaw at 2004 WLNR 4788371
Article, Douglas Jehl, Neil A. Lewis, & Tim Golden, ''The Reach of War: Guantanamo: Pentagon Seeks to Shift Inmates from Cuba Base,'' New York Times, March 11, 2005, available on Westlaw at 2005 WLNR 3773506
Article, Tim Golden, Ruhallah Khapalwak, Charlotte Gall, & David Rohde, ''The Bagram File: In U.S. Report, Brutal Details of 2 Afghan Inmates' Deaths,'' New York Times, May 20, 2005, available on Westlaw at 2005 WLNR 7990089
Article, Tim Golden, ''The Bagram File: Army Faltered in Investigating Detainee Abuse,'' New York Times, May 22, 2005, available on Westlaw at 2005 WLNR 8112977
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Report, American Civil Liberties Union, ''Independence Day 2003,'' July 3, 2003
Report, Human Rights Watch, ''We Are Not the Enemy,'' November 2002
Report, Human Rights Watch, ''Presumption of Guilt,'' August 2002
Report, Human Rights Watch, ''The Road to Abu Ghraib,'' June 2004
Report, Human Rights Watch, ''Still At Risk,'' April 2005
Report, Human Rights Watch, ''Getting Away With Torture?,'' April 2005
Report, American Civil Liberties Union, ''Sanctioned Bias,'' February 2004
Report, American Civil Liberties Union, ''Unpatriotic Acts,'' July 2003
Report, Irene Kahn, Amnesty International, ''Denounce Torture, Report 2005, Forward,'' May 25, 2005
Statement, Alexandra Arriaga, Amnesty International, ''Stop Outsourcing of Torture,'' May 10, 2005
Amnesty International, ''United States of America, Guantanamo—an icon of lawlessness,'' January 6, 2005
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Report, Amnesty International, ''Human Dignity Denied: Torture and Accountability in the War on Terror,'' October 27, 2004
Report, Center for Civil Rights, ''The State of Civil Liberties One Year Later,'' 2002
Report, Nancy Chang & Alan Kabat, Center for Civil Rights, ''Summary of Recent Court Rulings on Terrorism-Related Matters having Civil Liberties Implications,'' March 8, 2004
Report, Anjana Malhotra, ''Overlooking Innocence: Refashioning the Material Witness Law to Indefinitely Detain Muslims Without Charges''
Report, American Civil Liberties Union, ''Conduct Unbecoming: Pitfalls in the President's Military Commissions,'' March 2004
Report, American Civil Liberties Union, ''America's Disappeared: Seeking International Justice for Immigrants Detained After September 11, January 2004
Report, American Civil Liberties Union, ''Seeking Truth From Justice, PATRIOT Propaganda: The Justice Department's Campaign to Mislead The Public About the USA PATRIOT Act,'' July 2003
Article, New York Times, ''Just Shut It Down,'' May 27, 2005
Article, USA Today, ''Biden: U.S. needs to close Cuba prison,'' June 6, 2005
Letter to the Honorable Alberto R. Gonzales, Attorney General of the United States
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REAUTHORIZATION OF THE USA PATRIOT ACT (CONTINUED)
FRIDAY, JUNE 10, 2005
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 8:30 a.m., in Room 2141, Rayburn House Office Building, the Honorable F. James Sensenbrenner, Jr. (Chairman of the Committee) presiding.
Chairman SENSENBRENNER. The meeting will be in order, a quorum for the taking of testimony is present. This hearing has been called by the Democratic Members of the Committee pursuant to clause 2(j)(1) of Rule 10 of the Rules of the House of Representatives. They have chosen the witnesses. They have also chosen the topic of the hearing, and the Chair now recognizes the gentleman from Michigan, Mr. Conyers to make his opening statement.
Mr. CONYERS. Thank you, Mr. Chairman, this is a special hearing brought by the request of the Democratic side of the House of Representatives. I thank you for complying with it. There are few issues more important to this Committee, and I might add, the Congress, than the war against terror and the PATRIOT Act that accompanied it from a legislative perspective.
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This not only affects the rights and privacy of every American, but it impacts, the extent to which our Nation is able to hold itself out as a beacon of liberty as we advocate for democracy, both here and around the world.
For many of us, this process of hearings is not merely about the extension of 16 expiring provisions that sunset in the PATRIOT Act, but it is about the manner in which our Government uses its legal authority to prosecute the war against terror, both domestically and abroad.
And as we hear from our witnesses today, I think we will demonstrate that much of this authority has been abused.
We learn from Amnesty International about the routine torture and degradation of detainees in American-run prisons that clearly and obviously violate American and international law.
Both then White House counsel Gonzalez and the then Attorney General of the Department of Justice, all with others, conspired to create an end run around the international and United States laws that criminalize that sort of behavior. While the Justice Department has supposedly reversed these opinions, it still refuses to charge those in its jurisdiction.
We expect that there will be testimony concerning the illegal detention and mistreatment of individuals at Guantanamo Bay. A Federal Court has found their detention and denial of legal process to be unconstitutional under the fifth amendment.
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And after the recent confirmation that jailers have, in fact, desecrated the Koran on more than one occasion, it is clearly time for the military to shut the Guantanamo facility down, and I join with those Members of Congress that have urged that that happen. We will also learn about the abuse of the immigration system to unjustifiably detain and harass men of Middle Eastern descent. The Department of Justice has held over 1,000 people in the wake of 9/11 and the Inspector General has found the detentions to violate the law. But no one has been punished and nothing has been done to ensure that it doesn't happen again.
Finally, we will hear about the failure of our Administration's racial profiling tactics employed in the war against terror. Not only are tactics like these immoral, they have been proven to be completely useless in the war on terror.
For example, the Government's registration of 80,000 Middle Eastern men who did nothing, did nothing but create a deportation nightmare for families who had long been upstanding members of our communities. And not a single terrorist was found.
Yesterday, the President announced with the usual fanfare that we need to not only reauthorize——
Chairman SENSENBRENNER. Gentleman's time has expired.
The Chair recognizes himself for 5 minutes.
As I said earlier when I called this hearing to order, this hearing was requested by the Democratic Minority. The Democratic Minority also stated what the scope of this hearing would be, which would be the reauthorization of the USA PATRIOT Act. I am disturbed that some of the testimony that has been presented in written form by the witnesses today are far outside the scope of the hearing which the Democratic Minority called and which they said in their letter.
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I am also disturbed that a number of the Members of this Committee who decided it was important to have this hearing and who sent me the letter, which I complied with, aren't here this morning. Members have changed their travel schedules in order to participate in the hearing which they called. But, apparently they decided it wasn't important enough to show up, even though they thought it was important enough to have this hearing. And I am going to read off their names because these are the people who decided the hearing was important enough to call, but not important enough to participate in. Rick Boucher of Virginia, Zoe Lofgren of California, Anthony Weiner of New York, Debbie Wasserman Schultz of Florida, Gerald Nadler of New York, Sheila Jackson Lee of Texas, Martin Meehan of Massachusetts, and Adam Schiff of California.
They are AWOL. And apparently they have decided that this hearing is not important enough to participate in. Now——
Mr. CONYERS. Mr. Chairman.
Chairman SENSENBRENNER. I didn't interrupt you, Mr. Conyers.
Mr. CONYERS. I wanted to raise a point of order but I will be happy to wait.
Chairman SENSENBRENNER. Now, this Chair has bent over backwards to be fair to the Minority and everybody else and to provide plenty of due process on the question of reauthorizing the PATRIOT Act. We have had eleven hearings at the full and Subcommittee level here. The Minority has been offered to provide witnesses at all of the Subcommittee hearings. The two full Committee hearings included the Attorney General and the Deputy Attorney General. And this shows that I have worked in a bipartisan manner to give everybody an opportunity to express their concerns about the 16 sections of the PATRIOT Act that were subjected to the sunset.
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At each one of the hearings which were held at the Subcommittee level, the Minority had at least one witness, sometimes two, and there was an additional Subcommittee hearing that was held at the end of last month at the request of the Minority, where they were able to choose the scope of the topics that were discussed at this hearing.
I also point out the American Civil Liberties Union has testified four times before at the Subcommittee level. I guess they weren't able to say what they planned to say, and that is why they're brought back here for the fifth time.
Now, since commencing this latest series of oversight hearings on the PATRIOT Act, we have examined those provisions that are set to expire at the end of this year and the scope of the hearings has been broadened at the request of the Democrats to include provisions that will not sunset and some issues that are only tangentially related to the PATRIOT Act have also received formal Committee consideration. This was at the request of the Minority. And it is a request that I was happy to grant so that there would be full and complete discussion of this law.
Now, the American people expect and deserve that Members of Congress will approach terrorism prevention in a thoughtful, factual and responsible manner. All too often, opponents of the PATRIOT Act have constructed unfounded and totally unrelated conspiracy theories, erected straw men that bear no relation to reality, engaged in irresponsible and totally unfounded hyperbole, or unjustly criticized or impugned the honorable law enforcement officials entrusted with protecting the security of the American people. These efforts that which often bear no relation to the reauthorization of the PATRIOT Act, coarsen public debate and undermine the responsible, substantive examination which must inform this Committee and Congress' consideration of this critical issue.
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As the Members of this Committee know, I have great respect for the Rules of the House, and believe they should be enforced fairly and uniformly. In keeping with the spirit of those rules, it is the Chair's intention to limit the scope of the hearing to the topic that was chosen by the Democratic Minority that called this hearing and chose the witnesses, which is the ''Reauthorization of the USA PATRIOT Act.'' This should be a serious hearing on a serious subject and not a forum for assertions or complaints that concern matters unrelated to the PATRIOT Act.
Members and witnesses are advised that questions and testimony not falling within the subject matter of the hearing chosen by the Democrats will not be included in the hearing record pursuant to House Rule 11, section (k)(8).
We will now hear testimony from the witnesses. Gentlemen from Michigan.
Mr. CONYERS. Thank you very much. I would like to——
Mr. NADLER. Mr. Chairman, point of order.
Chairman SENSENBRENNER. The gentleman from Michigan is recognized.
Mr. CONYERS. Well, I would like to strike the requisite number of words, Mr. Chairman, if I might at this time.
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Chairman SENSENBRENNER. The gentleman is recognized for 5 minutes.
Mr. CONYERS. I want to, again, thank you for complying with the rules. But, I mean, we can do this in a friendly tone or a hostile tone. I think that tells the story to everybody about what the real environment is like here. But first of all, we have never had the meeting that we were going to set. Number two, we have never, we have never determined what the limits will be on this hearing, because I never talked with you about it. Number four, it is very important that we understand that in this Committee and in the other body, we have gone way beyond the 16 sunsetting provisions as we all know and there are more coming every day.
So to suggest to me and our membership that we are now going to talk about the 16 sunsetting provisions precisely misses the point of why we have asked for the hearing.
Chairman SENSENBRENNER. Will the gentleman yield.
Mr. CONYERS. Of course.
Chairman SENSENBRENNER. The Chair has complied with the rules. The Chair believes in complying with the rules. And the Chair expects all of the other Members to comply with the rules, which includes the Rules of the House of Representatives relative to pertinence and relevancy and the Chair will enforce the rules as they are written.
Mr. CONYERS. Well, I am happy to have yielded for that information. But section 1001 of the PATRIOT Act gave the Inspector General the responsibility of investigating ''complaints alleging abuses of civil rights and civil liberties by employees and officials of the Department of Justice.''
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All of the topics today that are before us with these four witnesses fall under this category. It does not say only civil liberties abuses under the PATRIOT Act, but civil liberties in general in their totality. And all of the witnesses today I claim are experts in this area.
So we didn't come here to have a special hearing to be told that we are only going to investigate 16 sunsetting provisions. That is what we have had, nine, 10, 11 hearings about. The question is about the issues of violations or abuses alleged of civil rights and civil liberties. So we didn't come here today to be muted by some well-intentioned recitations of the rules by the Chairman.
And, I thank you. And I return the time.
Chairman SENSENBRENNER. The Chair strikes the last word and recognizes himself for a very brief 5 minutes. First of all, the Rules of the House and specifically, Rule 11 clause 2(j)(1) under which this hearing is called, requires that the subject matter of the hearings requested under this rule be confined to that measure or matter, which was the subject of the earlier hearing. Furthermore, the letter that I received from the Democratic Members of the Committee, dated June 7, exercising the provisions of this rule, requested at least one additional day of oversight hearings be authorized or be conducted, ''on the Reauthorization of the USA PATRIOT Act.''
So both the rule and the letter requires that the testimony, in order to be pertinent and relevant, be on the subject of the reauthorization of the USA PATRIOT Act, and that is specifically the 16 sections of the USA PATRIOT Act, which were sunsetted in the law which was passed 3 1/2 years ago. I would like to get to the——
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Mr. NADLER. Mr. Chairman, I have a personal privilege.
Chairman SENSENBRENNER. The gentleman will state his point.
Mr. NADLER. Thank you, Mr. Chairman. I gather that my name was mentioned specifically by the Chair as not being present despite the fact that I signed the letter. I point out for the record that I walked in here at 8:27 a.m., put my jacket on the chair, put my Diet Coke over here, put my papers here and walked out to the staff room. The Chairman may not have noted my presence, but I was here prior to 8:30.
Chairman SENSENBRENNER. The Chair notes your presence now.
Mr. NADLER. Now, Mr. Chairman may I strike the last word?
Chairman SENSENBRENNER. Well if the gentleman does not want to listen to the witnesses, the gentlemen may strike the last word.
Mr. NADLER. I am very desirous of listening to the witnesses, and I will be very brief. I would simply observe—I would simply, first of all, second what the distinguished Ranking Minority Member said about the role of this hearing and about the breadth of it. And I would wonder why the Chairman seems so fearful of elucidating any information beyond what he thinks proper. Are we afraid of learning about this misconduct by agents of the executive branch that traduce civil liberties? If that happened, if it happened, we should know about it and we should discuss in this Committee what actions to take about it. We should not be fearful of knowledge and we should not be fearful of laying out to the American people such information, officially laying out to the American people information, the readers of much of which the readers of any newspaper in the United States or the world knows.
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Much conduct has occurred, I shouldn't say that. Much conduct has allegedly occurred which, if true, disgraces this country, spoils its good name and action should be taken about that if true. And we should learn about it. And I hope we are not fearful of learning about the truth or falsity of those statements that we have all read in the general press. Thank you. I yield back.
Chairman SENSENBRENNER. The Chairman will swear the witnesses in.
Ms. JACKSON LEE. Mr. Chairman, point of order.
Chairman SENSENBRENNER. Today we are joined by Carlina Tapia Ruano, who serves as first vice-president for the American Immigration Lawyers Association. Next is Dr. James J. Zogby, president of the Arab American Institute. Deborah Pearlstein is the director of U.S. Law and Security Program, at Human Rights First. And finally Chip Pitts is chair of the board of Amnesty International USA.
I thank all of these witnesses for their attendance today and admonish the witnesses to confine their testimony pursuant to the Rules of the House and the scope of the letter that was sent to me by the Democrats calling this hearing. Would all of the witnesses please raise your right hand and stand and take the oath.
[Witnesses sworn.]
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Chairman SENSENBRENNER. Let the record show that all of the witnesses answered in the affirmative. Without objection, the witnesses prepared testimony, will be included in the record at the point they give their verbal testimony. We would ask that the witnesses confine their verbal testimony to 5 minutes. And, first up is Ms. Tapia Ruano.
Ms. JACKSON LEE. Mr. Chairman, point of order.
Chairman SENSENBRENNER. Ms. Tapia Ruano is testifying.
TESTIMONY OF CARLINA TAPIA RUANO, FIRST VICE-PRESIDENT, AMERICAN IMMIGRATION LAWYERS ASSOCIATION
Ms. TAPIA RUANO. Good morning. My name is Carlina Tapia Ruano. I am an immigration attorney practicing in Chicago, Illinois. I am also the first vice-president of the American Immigration Lawyers Association, a National Bar Association that represents almost 9,000 immigration lawyers and professors of immigration law. I would like to thank Chairman Sensenbrenner, and also Representative Conyers for allowing me the opportunity to address you this morning. And also the fellow Committee Members, which includes Representative Jackson Lee from Texas, who is present this morning.
I would like to talk about the PATRIOT Act and other initiatives related to the PATRIOT Act post 9/11. But let's begin with the PATRIOT Act. The American Immigration Lawyers Association is deeply troubled by some of the provisions found in this Act, such as section 411 of the act, which expands the grounds of removability and deportability for individuals that engage in conduct that we believe is constitutionally protected.
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In addition, section 412 creates a certification process whereby individuals can be designated suspect terrorists without ever being formally charged as terrorists, thereby depriving these individuals from the ability to defend themselves or to explain facts that may have led to their incorrect certification. We would ask that Congress address these provisions. We understand that in a democracy, especially such as ours, which is in need of security, we must have provisions which enhance security but we would also ask that these provisions not deprive individuals of their individual rights in the process of reaching the security. These provisions in the PATRIOT Act are very troubling, but also troubling are other administrative initiatives that took place post 9/11 which are irrevocably interconnected with the PATRIOT Act and what it is attempting to achieve.
In my written testimony, I have provided an addendum that lists chronically some of these administrative initiatives.
Today I would like to just address three in particular. First, the blanket closure of administration judge's proceedings; number two, the failure to file charges against individuals being detained, in effect, indefinitely; and third, the evisceration of the Board of Immigration Appeals, the only body that reviews decisions made by the Immigration Agency.
We, the American Immigration Lawyers Association, believe that the Civil Liberties Restoration Act is a bill which should be strongly supported by Congress and it addresses fairly in a measured way these three concerns I have just addressed.
Lets go back and talk about them in a little more detail. Closing of the immigration hearings. This took place as a result of the September 21, 2001, memo by the Department of Justice, which has become known as the Creppy memo, which the Department of Justice repeatedly denied, existed for months. As a result of this memo, hearings were ordered to be held in secret, not only the hearing preventing the family members, friends, and of course, the press, from attending, but the very fact that the hearing was taking place and its location and date and its subject matter was considered a matter of secrecy.
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We believe that hearings should be held open. We believe that in an open and democratic society such as ours, open hearings are a necessity. And closed hearings, such as these, are a normal tool of repressive regimes. Number 2, our concern with holding noncitizens in jail indefinitely. Again, the Department of Justice on September 20, 2001, just a day before the Creppy memo and a full month before the PATRIOT Act was enacted, authorized individuals, non-citizens, to be able to be held in custody for 48 hours, or an unspecified additional amount of time, if necessary. These are regulations that circumvent, that totally ignore congressional mandate in the very PATRIOT Act of putting a limit of 7 days to individuals who can be held in custody without charge.
The Department of Justice has not had to depend on the Immigration Agency and the PATRIOT Act and its 7-day limitation. It simply ignores them and it relies on its own regulation which results in indefinite custody. The Department of Justice's own internal report, inspector general report dated April 2003, documented that most of these post 9/11 detainees were held not only days, weeks, months in custody without being charged. Ultimately those individuals were charged with civil immigration violations. Not one was ever charged with any offense related to the 9/11 attacks.
Chairman SENSENBRENNER. Ms. Tapia Ruano, could you wrap it up? Your time is expired.
Ms. TAPIA RUANO. I would like to jump to the last concern, and that is the Board of Immigration Appeals. And I will conclude my comment with that. The Board of Immigration Appeals has, in fact, been reduced to a nonexistent body. As a result of alleged reforms, that body was dismantled, and in reducing the number of individuals that was allegedly going to reduce the backlog, all, in essence, it resulted in transferring its entire backlog to the Federal courts.
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I practice in the Seventh Circuit. A circuit, which is not known to be, in the past, friendly to overturning board decisions. Yet in the last 2 years, it has been, has become renowned for overturning board decisions as a result of the lack of review that exists due to the BIA reforms. We would urge the Committee to look to policies that provide security for our country, but not ignore or trample on individual rights. Thank you for allowing me to address.
Chairman SENSENBRENNER. Thank you.
[The prepared statement of Ms. Tapia Ruano follows:]
PREPARED STATEMENT OF CARLINA TAPIA RUANO
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Chairman SENSENBRENNER. Dr. Zogby.
TESTIMONY OF JAMES J. ZOGBY, PRESIDENT, ARAB AMERICAN INSTITUTE
Mr. ZOGBY. Thank you, Mr. Chairman. Thank you, Ranking Member Conyers and Members of the Committee. I appreciate the convening of this hearing and thank you for inviting me today.
The horrific terrorist attacks of September 11th were a profound and painful tragedy for all Americans. None of us will ever forget the awful day when thousands of innocent lives were lost. The attacks were dual tragedy for my community. As Americans, it was our country that was attacked. Arab Americans died in the attacks. Arab Americans were also firefighters and police officers in New York and in Washington who aided in the rescue efforts. Some lost their lives doing so. Sadly, however, many in my community were torn away from their morning, because we became targets of hate and discrimination. Some assumed our collective guilt. Arab Americans and American Muslims and others perceived to be Arabs and Muslims were victims of hundreds of bias incidents.
Thankfully the American people rallied to our defense. President Bush spoke forcefully against hate crimes. Both the Senate and House of Representatives unanimously passed resolutions condemning hate crimes. Federal, State and local law enforcement investigated and prosecuted. I received death threats. My family and I did. Two individuals have been prosecuted and convicted for those crimes. My community and I personally will always been grateful that our fellow Americans defended us at a critical time.
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Much has been done in the past 3 1/2 years to combat the threat of terror. Among other significant accomplishments is we created the Department of Homeland Security. We have taken steps to enhance airport and border security and we have improved information sharing between intelligence and law enforcement. However, as someone who has spent my entire professional life working to bring Arab Americans into the mainstream of American politics and to build a bridge between my country and the Arab world, I am concerned about the direction of some of our efforts to combat the terrorist threats and the impact that some of these efforts have had on my community and my country.
Unfortunately the Administration has devoted too many resources to some measures that threaten civil liberties while doing little to protect our community. I share the concerns of my colleagues with some provisions of the PATRIOT Act that give law enforcement broad authority to monitor the activities of innocent Americans with inadequate judicial oversight.
These concerns, I might add, are shared by Americans across the political spectrum. I am supportive of reasonably reforms like those recommended in the Security and Freedom Enhancement, or SAFE Act. I am concerned as well about a series of high profile initiatives not authorized by the PATRIOT Act, which have explicitly targeted tens of thousands of innocent Arabs and Muslims and have resulted in the detention and deportation of thousands.
Policies and statements that have conflated undocumented Arab and Muslim immigrants with terrorists has cast a cloud of suspicion over the entire community and contributed to additional discrimination. I therefore support passage of the Civil Liberties Restoration Act.
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Look, the measures I am talking about are counterproductive. They're counterproductive, and I want to talk about why. What policies am I talking about? For example, I am talking about the initial round up of 1,200. I am talking about the two so-called voluntary call-ins, and especially, I am talking about the national special registration program, NSEERS. That did not result in apprehending terrorists. They did not do anything but waste law enforcement resources. The FBI says that as well. They created fear and broke trust with many in the immigrant communities that law enforcement needs cooperation with in order to do its job, and they resulted in placing thousands in deportation, often for mere technical reasons because the INS simply had a backlog and couldn't get to their forms.
In addition, they were placed based on the mistaken notion that you conflate immigration policy with any terrorism policy. All it did was cast a wide net and alienated communities that law enforcement needs to have cooperation with. They ran counter to the basic principles of policing. And took a toll on my community, a serious toll. They also took a particular toll on Americans abroad and I want to make that point as I close.
As a result it has become more difficult for our allies to cooperate with us, and it has made America less popular abroad. Now that may not mean something to some people. But it means something to me and it ought to mean something to our country because we are engaged in a long-term conflict in that region.
President Bush is right when he links the spread of democracy to the war on terrorism. But civil liberties abuses against Arabs and Muslims in America and the indefinite secret detention and highly coercive interrogation techniques used in Guantanamo Bay and elsewhere have undermined our ability to advocate credibly for democratic reform. In fact, some Arab governments now point to our policies to justify their policies. We have learned anti democratic practices and human rights abuses produce instability and create conditions that breed terrorism. Democratic reformers and human rights activists used to look to America as the city on the hill. We once set a high standard for the world. We have lowered the bar. The damage to our image, to our values, and all that we have sought to project and our ability to deal with the root causes of terror have been profound.
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Chairman SENSENBRENNER. Thank you, Dr. Zogby.
[The prepared statement of Mr. Zogby follows:]
PREPARED STATEMENT OF DR. JAMES J. ZOGBY
Mr. Chairman, Ranking Member, Members of the Committee, thank you for convening this important hearing and for inviting me to be with you today.
The horrific terrorist attacks of September 11 were a profound and painful tragedy for all Americans. None of us will ever forget that awful day when thousands of innocent lives were lost.
The attacks were a dual tragedy for Arab Americans. We are Americans and it was our country that was attacked. Arab Americans died in the attacks. Arab Americans were also part of the rescue effort. Dozens of New York City Police and rescue workers who bravely toiled at Ground Zero were Arab Americans.
Sadly, however, many Arab Americans were torn away from mourning with our fellow Americans because we became the targets of hate crimes and discrimination. Some assumed our collective guilt because the terrorists were Arabs. Arab Americans and Muslims and other perceived to be Arab and Muslim were the victims of hundreds of bias incidents. According to the Justice Department's Civil Rights Division, ''The incidents have consisted of telephone, internet, mail, and face-to-face threats; minor assaults as well as assaults with dangerous weapons and assaults resulting in serious injury and death; and vandalism, shootings, and bombings directed at homes, businesses, and places of worship.'' As a result of the post-9/11 backlash, in 2001, the FBI reported a 1600% increase in anti-Muslim hate crimes and an almost 500% increase in ethnic-based hate crimes against persons of Arab descent.
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Thankfully, the American people rallied to our defense. President Bush spoke out forcefully against hate crimes, as did countless others across the nation. Both the Senate and the House of Representatives unanimously passed resolutions condemning hate crimes against Arab Americans and Muslims. Federal, state and local law enforcement investigated and prosecuted hate crimes, and ordinary citizens defended and protected us, refusing to allow bigots to define America. My family and I received death threats and two individuals have been prosecuted by the FBI and convicted for these hate crimes. My community and I, personally, will always be grateful that our fellow Americans defended us at that crucial time.
Much has been done in the past three and one-half years to combat the threat of terrorism. Among other significant accomplishments, we have created the Department of Homeland Security, taken steps to enhance airport and border security, and improved information sharing between intelligence and law enforcement.
Arab Americans are proud to have played a crucial role in these efforts, serving on the front lines of the war on terrorism as police, firefighters, soldiers, FBI agents, and translators. The Arab American Institute has worked with federal, state and local law enforcement to assist efforts to protect the homeland. We helped to recruit Arab Americans with needed language skills and we have served as a bridge to connect law enforcement with our community. Unfortunately, our best efforts have been somewhat frustrated by the difficulties that many Arab Americans who possess the requisite language skills and a strong desire to serve our nation have experienced with obtaining security clearances.
Working with the Washington Field Office of the FBI, the Arab American Institute helped to create the first Arab American Advisory Committee, which works to facilitate communication between the Arab-American community and the FBI. I served as a member of that FBI Advisory Committee, which we still hope will be a model to be copied across the United States.
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As someone who has spent my entire professional life working to bring Arab Americans into the mainstream of American political life and to build a bridge between my country and the Arab world, I am very concerned about the direction of some of our efforts to combat the terrorist threat and the impact these initiatives have on our country and my community.
Unfortunately, the administration has devoted too many resources to counterterrorism measures that threaten our civil liberties and do little to improve our security. I share the concerns of my colleagues with some provisions of the Patriot Act that give law enforcement broad authority to monitor the activities of innocent Americans with inadequate judicial oversight. These concerns, I might add, are shared by Americans across the political spectrum. I am supportive of reasonable reforms like those recommended in the Security and Freedom Enhancement, or SAFE, Act.
I am as concerned, if not more, about a series of high-profile initiatives, not authorized by the Patriot Act, which have explicitly targeted tens of thousands of innocent Arabs and Muslims and have resulted in the detention and deportation of thousands. Policies and statements that conflate undocumented Arab and Muslim immigrants with terrorists cast a cloud of suspicion over the Arab American community that contributed to additional discrimination. I support passage of the Civil Liberties Restoration Act, which would help to end such counterproductive policies.
In the immediate aftermath of 9/11, the Justice Department rounded up at least 1200 immigrants, the vast majority of whom were Arab or Muslim. The DOJ refused to release any information about the detainees, and charged that the detentions were related to the 9/11 investigation. At the time, the Arab American Institute and others in the Arab-American community expressed concern about the broad dragnet that the Justice Department had cast in Arab immigrant communities. We fully supported the government's efforts to vigorously investigate the 9/11 terrorist attacks, but we questioned the efficacy of this dragnet approach. Based on reports from family members of the detainees, we also were very concerned about the conditions in which the detainees were confined, and their ability to contact counsel and their families.
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Pursuant to Section 1001 of the Patriot Act, in 2002, the Justice Department's Inspector General issued a report which vindicated our concerns. The IG found that the Justice Department classified 762 of the detainees as ''September 11 detainees.'' The IG concluded that none of these detainees were charged with terrorist-related offenses, and that the decision to detain them was ''extremely attenuated'' from the 9/11 investigation. The IG concluded that the Justice Department's designation of detainees of interest to the 9/11 investigation was ''indiscriminate and haphazard.'' and did not adequately distinguish between terrorism suspects and other immigration detainees.
The IG also found detainees were subjected to harsh conditions of confinement, including cells that were illuminated 24 hours per day, and confinement to their cells for all but one hour per day. Disturbingly, the IG also found, ''a pattern of physical and verbal abuse by some correctional officers at the MDC [Metropolitian Detention Center] against some September 11 detainees, particularly during the first months after the attacks.'' In testimony before this committee exactly one month ago, Inspector General Glenn Fine raised concerns that, with regard to abuse allegations at MDC, ''The BOP [Bureau of Prisons] initiated its own investigation based on the OIG's findings to determine whether discipline is warranted. Yet, more than a year later, the BOP review still is ongoing. We believe that this delay is too long and that appropriate discipline should have been imposed in a more timely fashion.''
I'm not suggesting that the government should never use immigration charges to detain a suspected terrorist, but the broad brush of terrorism should not be applied to every out-of-status immigrant who happens to be Arab or Muslim. Moreover, if detained, they should most certainly not be subjected to abusive and degrading treatment. Our immigration system is fundamentally broken. Comprehensive immigration reform is required to address this problem. We should not confuse the problems with our immigration system with our efforts to combat terrorism. Detaining large numbers of undocumented Arab and Muslim immigrants will not aid our efforts to combat terrorism, and might actually harm them.
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Another example of conflating immigration enforcement against Arab and Muslims with counterterrorism was the National Security Entry-Exit Registration System (NSEERS) ''call-in'' program (also known as Special Registration), which required male visitors from 24 Arab and Muslim countries and North Korea, to register with local INS offices. By singling out a large group of mostly Arabs and Muslims, Special Registration involved a massive investment of law enforcement resources with negligible return. It also created fear of law enforcement in our immigrant communities, whose cooperation law enforcement needs. At the same time, these discriminatory practices validated and even fed the suspicion that some have of Arabs and Muslims.
From the outset, NSEERS was plagued by implementation problems. Due to inadequate publicity and INS dissemination of inaccurate and mistranslated information, many individuals who were required to register did not do so. Many who were required to register in the call-in program were technically out of status due to long INS backlogs in processing applications for permanent residency. Many such individuals have been placed in deportation proceedings.
Across the country, many were detained in harsh conditions due to the government's inability to process registrants in a timely fashion. For example, in December 2002, the INS in Los Angeles detained hundreds of men and boys who report they were denied access to legal counsel and their families, held in handcuffs and leg shackles, and forced to sleep standing up due to overcrowding.
In response to criticism that the ''call-in'' program discriminated against Arabs and Muslims, Justice Department officials originally said that it would be expanded to include visitors from all countries. When the program was transferred to the Department of Homeland Security, the administration announced that the program was being terminated. However, those who were already required to register, including male visitors from every Arab country, are still subject to the program's requirements and penalties for noncompliance, including deportation. ''Call-in'' registration is over, but its consequences are still with us.
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The Department of Homeland Security reported that more than 80,000 people registered in the call-in. Of these, more than 13,000 have been placed in deportation proceedings. If a goal of Special Registration was to track possible terrorists, deporting those who complied with the program undermined this aim, especially since it may reduce future compliance. The Special Registration ''call-in'' program did not result in the apprehension of any terrorists. This clearly raises questions about the efficacy of the program.
In a similar vein, the Justice Department also launched the ''Interview Project,'' to interview thousands of Arabs and Muslims, including U.S. citizens. The latest round of FBI interviews, the so-called ''October Plan,'' coincided with an Immigration and Customs Enforcement (ICE) initiative which apparently used the NSEERS-compiled database to prioritize leads. Given the pre-election nature of this initiative, the Arab American Institute expressed concern, at the time, that these tactics may have had a chilling effect on the participation of some segments of the Arab American and American Muslim communities in the election. We have found that these interviews created fear and suspicion in the community, especially among recent immigrants, and damaged our efforts to build bridges between the community and law enforcement.
Like other DOJ programs that cast a wide net, the interviews created a public impression that federal law enforcement viewed our entire recent immigrant community with suspicion, which, in some cases, fostered discrimination. For example, we received reports of instances where the FBI visited individuals at their workplace, and then these individuals were subsequently demoted or terminated by their employers.
FBI officials with whom I have spoken also questioned the project's usefulness as a law enforcement and counter-terrorism program. They told me it involved a significant investment of manpower, produced little useful information, and damaged their community outreach efforts.
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The General Accounting Office reviewed the Interview Project and concluded:
How and to what extent the interview project—including investigative leads and increased presence of law enforcement in communities—helped the government combat terrorism is hard to measure . . . More than half of the law enforcement officers that [the GAO] interviewed raised concerns about the quality of the questions or the value of the responses.
According to the GAO, ''Attorneys and advocates told us that interviewed aliens told them that they felt they were being singled out and investigated because of their ethnicity or religious beliefs.'' The GAO also concluded that many of those interviewed ''did not feel the interviews were truly voluntary,'' and feared ''repercussions'' if they declined to be interviewed.
I am concerned about these and other government efforts that infringed upon civil liberties for several reasons. First, it is wrong to single out innocent people based on their ethnicity or religion. This runs contrary to the uniquely American ideal of equal protection under the law.
By casting such a wide net, these efforts squandered precious law enforcement resources and alienated communities whose cooperation law enforcement needs. They ran counter to basic principles of community policing, which rejects the use of racial and ethnic profiles and focuses on building trust and respect by working cooperatively with community members.
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According to polls conducted by the Arab American Institute and Zogby International, the Justice Department's efforts took a toll in the Arab American community. Immediately after 9/11 Arab Americans were heartened by President Bush's strong display of support for the community. In October 2001, 90% said that they were reassured by the President's support, while only six percent were not reassured. By May 2002, those who felt reassured dropped to 54% as opposed to 35% who were not. In a July 2003 poll, the ratio dropped even further, with only 49% now saying that they feel assured by Bush's support for the community while 38% say that they are not assured. By 2004 this number dropped to the 20% range. In addition, we found that thirty percent of Arab Americans reported having experienced some form of discrimination, and 60% said they were concerned about the long-term impact of discrimination against Arab Americans.
Civil liberties abuses against Arabs and Muslims have been well-publicized in the Arab world, and there is a growing perception that Arab immigrants and visitors are not welcome in the United States. As a result, America is less popular, and it is more politically difficult for our Arab allies to cooperate with our counter-terrorism efforts.
According to polls conducted by the Arab American Institute and Zogby International, Arab public opinion attitudes toward the United States had dropped to dangerously low levels even before the U.S.-led invasion of Iraq. We found that Arabs had strong favorable attitudes toward American values, and also had largely favorable attitudes toward the American people. However, they had extremely negative attitudes toward U.S. policy, which shaped their views of America. To be sure, U.S. policy toward the Israeli-Palestinian conflict and Iraq contributed to these attitudes, but perceptions of civil liberties abuses against Arab and Muslims Americans are also a contributing factor. In fact, in a 2004 poll of Arab attitude toward the US, we found that our treatment of Arab and Muslim immigrants had eclipsed Palestine and Iraq as the number one reason for negative attitudes toward Americans in some Arab countries.
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The countries polled included some of the United States' strongest allies in the Middle East: Egypt, Jordan, Morocco, Saudi Arabia and the United Arab Emirates. In an earlier AAI/ZI poll, done in March of 2002, we found that U.S. favorable ratings were already quite low. The most significant drops in U.S. ratings occurred in Morocco and Jordan. In 2002, for example, 34% of Jordanians had a positive view of the United States as compared with 61% who had a negative view. By 2004, only 10% of Jordanians held a positive view of the United States, while 81% see the country in a negative light. Similarly in Morocco the favorable/unfavorable rating towards the United States in 2002 was 38% to 61% percent. Two years later, it was 9% favorable and 88% unfavorable.
The U.S. favorable/unfavorable rating was already quite low in Egypt, Saudi Arabia, and the UAE. It has remained low.
Buttressing these poll results are my experiences in the Arab world, where I travel frequently. In conversations with opinion leaders across the region, the concern they raise most frequently is American civil liberties abuses against Arabs and Muslims.
Due to a variety of factors, including fear of discrimination, many fewer Arabs come to the U.S. for medical treatment, tourism, study, or business. In the past, Arab visitors to the U.S. have had a chance to observe first-hand the unique nature of American democracy and freedom and have returned to the Arab world as ambassadors for our values.
President Bush has rightly linked the spread of democracy to the war on terrorism. Unfortunately, civil liberties abuses against Arabs and Muslims in the U.S. and the indefinite secret detention and highly coercive interrogation of Arab and Muslim detainees in Guantanamo Bay and other locations has undermined our openness and harmed our ability to advocate credibly for democratic reforms in the Middle East. In fact, some Arab governments now point to American practices to justify their own human rights abuses. As President Bush suggested, and as we have learned so painfully, anti-democratic practices and human rights abuses promote instability and create the conditions that breed terrorism. Democratic reformers and human rights activists used to look to the U.S. as an exemplar, the city on a hill. Now they are dismissed by their countrymen when they point to the American experience.
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Once we set a high standard for the world, now we have lowered the bar. The damage to our image, to the values we have sought to project, and to our ability to deal more effectively with root causes of terror have been profound.
Chairman SENSENBRENNER. Ms. Pearlstein.
TESTIMONY OF DEBORAH PEARLSTEIN, DIRECTOR, U.S. LAW AND SECURITY PROGRAM
Ms. PEARLSTEIN. Thank you. Thank you, Mr. Chairman, Mr. Conyers, for inviting Human Rights First to share our views today on the reauthorization of the PATRIOT Act.
My name is Deborah Pearlstein, and I direct the U.S. Law and Security Program at Human Rights First, which is formerly the Lawyers Committee For Human Rights.
We are grateful for the opportunity to speak and we welcome your review today of the PATRIOT Act as part of a much needed move to engage in more aggressive congressional oversight of U.S. counterterrorism laws and policies. I would like to focus on these brief remarks on the profound need for greater oversight in this area, and particularly the critical importance of building on the scope of section 804 of the PATRIOT Act, which recognizes the need for enforcing U.S. laws and U.S. operations overseas. This idea of oversight and accountability is one that the PATRIOT Act itself squarely incorporates in a provision we urge this Committee to champion anew. Section 804 of the act amends the definition of special maritime and territorial jurisdiction of the United States to include ''offenses committed by or against a national of the United States.''
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On diplomatic, consular or military premises overseas, the act thus now makes clear that the Department of Justice now has jurisdiction to prosecute crimes by or against U.S. persons committed on these sites as part of the special maritime and territorial jurisdiction.
In light of the sustained public focus on the ongoing detention of foreign nationals throughout the world and the substantial hit our national security interests have taken as a result of these practices, using the power of the PATRIOT Act in this respect has never been more important. We believe that the way to build on this provision of the act is by establishing a bipartisan independent commission to look comprehensively at U.S. detention and interrogation operations in the war on terror. We believe such a commission is not only critical to restoring America's commitment to protecting basic human rights, but also is an increasingly urgent requirement to prevent U.S. national security.
Let me explain briefly why I believe this is the case. Since September 11, 2001 the scope of U.S. detention and intelligence collection operations worldwide has grown dramatically. Far from diminishing in importance is U.S. missions in Afghanistan and Iraq have matured, detention operations are picking up permanence and pace with the numbers of individuals in U.S. custody worldwide close to 12,000 today. Despite the sustained nature of these operations, a startling number of questions about the U.S. global detention system remain shrouded in secrecy. What is the legal basis of detaining those held? And what are the plans for their future? Does the International Red Cross now have access to all held in U.S. custody or do we continue to hold ghost detainees beyond the reach of humanitarian aid or law? Critically, what methods of interrogation and conditions of detention do U.S. held detainees face and are we now in compliance worldwide with basic constitutional and treaty prohibitions on torture as well as cruel, inhuman and degrading treatment of any kind.
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One need not be an expert in U.S. international and human rights law to recognize the urgency of these questions. According to the Pentagon's own figures, more than 100 people have died in U.S. custody since 2002. This includes 28 cases classified already by the Pentagon as homicides. At least half of those were people who were literally tortured to death.
To be clear, this is not a problem about a handful of actors from Abu Ghraib. Only one of the criminal homicides identified by the Department of Defense occurred at Abu Ghraib. The rest occurred at others of the two dozen-some detention facilities the United States maintains worldwide, well beyond the few young soldiers facing courts martial from Abu Ghraib. 137 U.S. soldiers so far have been punished for acts of torture or abuse, perhaps worse, the problem appears to be ongoing. At least 45 detainees have died in U.S. custody since Secretary Rumsfeld was informed of the torture at Abu Ghraib on January 16, 2004.
This is not a problem, first and foremost, about our brave troops. This is about command responsibility and congressional oversight. Our concern for the scope and nature of this problem is Americans and human rights lawyers have been matched and indeed exceeded by our friends and colleagues in the military and intelligence communities who believe current policies have been devastating both to the safety of our troops and the security interests of our nations. As a distinguished coalition of retired admirals and generals wrote last fall, ''understanding what is going wrong and what can be done to avoid systemic failure in the future is essential to ensure that the effectiveness of the U.S. military and intelligence operation is not compromised by an atmosphere of permissiveness, ambiguity or confusion.''
Even more starkly as one U.S. Army interrogator returning from Afghanistan noted, ''The more a prisoner hates America, the harder he will be to break. The more a population hates America, the less likely its citizens will be to lead us to a suspect.''
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Our detention practices have inflamed our enemies and alienated potential allies and they continue to run contrary to the security imperatives this body seeks to protect.
Finally, there can be no question that the investigations to date have been inadequate. As Human Rights first detailed at length in our recent report, Getting to Ground Truth, Government investigations so far have suffered from a lack of independence, failures to investigate relevant agencies and personnel, cumulative reporting, increasing the risk that error and omissions are perpetuating in successive reports, contradictory conclusions, questionable use of security classification withheld information, failures to address senior military and civilian responsibility, and an absence of any comprehensive game plan for corrective action. Human rights for the past 4 years——
Chairman SENSENBRENNER. The gentlewoman's time has expired.
Ms. PEARLSTEIN. Can I conclude briefly?
Chairman SENSENBRENNER. Briefly.
Ms. PEARLSTEIN. Our past 4 years of active engagement on these issues has persuaded us a 9/11-style commission, independent, bipartisan and of unassailable credibility is critical to understand finally what has gone wrong in the U S detention interrogation operations, and to chart a way forward to accountability and correction. Today's hearing can be a valuable first step in taking seriously the cause of liberty and safety. And we thank you for your consideration.
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Chairman SENSENBRENNER. Thank you.
[The prepared statement of Ms. Pearlstein follows:]
PREPARED STATEMENT OF DEBORAH PEARLSTEIN
Thank you for inviting Human Rights First to share our views on the reauthorization of the PATRIOT Act. My name is Deborah Pearlstein. I am the Director of the US Law and Security Program at Human Rights First. We greatly appreciate the opportunity to speak, and welcome your review today of the Patriot Act in the context of a much needed Congressional assessment of all U.S. counter-terrorism laws and policies. In my testimony today I would like to offer a few basic principles we hope the Committee will consider as it exercises its critical responsibility for reviewing and overseeing the authority given the Executive Branch under the PATRIOT Act.
For nearly 30 years, Human Rights First, formerly the Lawyers Committee for Human Rights, has worked in the United States and abroad to advance the values we believe all Americans share: a respect for justice and human dignity, and a commitment to the rule of law. One role we have worked hard to play is in providing dispassionate legal analysis and pragmatic policy advice to help craft solutions to the most pressing human rights problems facing the world today.
It was with these values—and this approach to our work—that Human Rights First responded to the attacks of September 11 by creating a new U.S. Law and Security Program to engage on the human rights questions presented by U.S. national security policies. As the first director of that program, and a constitutional lawyer by training, I approach this work starting from three guiding principles.
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First, Al Qaeda poses a very serious security threat to the American people, and the U.S. Government has the right and duty to protect Americans from attack. We thus welcome efforts to improve coordination among federal, state and local agencies, and between law enforcement and intelligence officials. Equally welcome are greater efforts to protect the nation's infrastructure supporting energy, transportation, food and water; efforts to strengthen the preparedness of our domestic front-line defenders, police, firefighters and emergency medical teams, as well as those working in public health. That recognition has meant for us, among other things, reaching out to members of the U.S. military and intelligence communities to understand the nature of the security challenge we face, and to discuss rights-respecting solutions that are equal to the challenge. We are proud to say that we have found many allies in these communities, and many areas of common cause.
The second principle is that the governments that are most effective in safeguarding human security are those that operate strictly under the rule of law: that is, under a system in which people are governed by public laws that are set in advance, applied equally in all cases, and are binding and enforceable on both individuals and on the government that serves them. For this reason, we have worked hard to engage all three branches of government in fulfilling their responsibilities to sustain our rule-of-law system. We have participated as monitors at Guantanamo Bay as the President's military commission trials began; advocated in the courts to ensure in all cases independent judicial review; and urged the vigorous exercise of congressional oversight in all aspects of U.S. counterterrorism activities—most recently in leading bipartisan calls for Congress to appoint an independent commission to study the challenges of detention and interrogation in Afghanistan , Iraq, at Guantanamo and elsewhere. In this spirit, we strongly welcome this hearing today.
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Finally, we believe that the relationship between security and liberty is not zero-sum. That taking rights away does not necessarily improve security. And likewise, that some of the most effective security-enhancing measures we have seen since September 11—including efforts to improve tracking of cargo containers coming into the United States, and a renewed commitment to disease surveillance to safeguard against biological attack—are broadly neutral with respect to rights.
It is because we believe that the security costs and benefits that flow from laws cannot be gleaned simply from what rights they burden that we believe the PATRIOT Act discussion remains one in which more questions than answers remain. Homeland Security Department Secretary Chertoff emphasized recently the importance of risk-management principles in designing an effective approach to minimizing the threat of terrorism, urging that in ''weigh[ing] the risks of a particular action, you conduct a cost-benefit analysis, and you factor these into your considerations.'' Four years in to the PATRIOT Act's implementation, we still lack a full, public accounting from the Department of Justice of the Act's use and its effects, for good and ill. Without this, we all remain poorly equipped to measure how much liberty or security we should cede.
Underlying all of these principles is an idea the PATRIOT Act itself incorporates, in a provision we urge this Committee to champion anew—the idea of accountability. Section 804 of the Act in particular amends the definition of ''special maritime and territorial jurisdiction of the United States'' to include ''offenses committed by or against a national of the United States'' on diplomatic, consular or military premises overseas. The Act thus now makes clear that the Department of Justice has jurisdiction to prosecute crimes by or against U.S. persons committed on these sites as part of this ''special maritime and territorial jurisdiction.'' In light the sustained public focus on the ongoing detention of foreign nationals throughout the world, and the substantial hit our national security interests have taken as a result of these practices, using the power of the PATRIOT Act in this respect has never been more important.
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This Committee should oversee, enhance, and enforce this aspect of the PATRIOT Act—and the Justice Department's pivotal role in carrying it out. With the powers that this Act and others like it provide comes the strict responsibility to enforce the laws as they exist. In including Section 804 in the Act originally, we believe Congress meant to signal its commitment to coupling new grants of power with equal measures of oversight and enforcement. Now is the time for Congress to strengthen its oversight of offenses committed in the special maritime and territorial jurisdiction of the United States. And where the Department of Justice falls short, this body must bear the weight.
Thank you for considering our views. We welcome your active engagement and the opportunity to continue to work with you on these vitally important issues.
Chairman SENSENBRENNER. Mr. Pitts.
TESTIMONY OF CHIP PITTS, CHAIR OF THE BOARD, AMNESTY INTERNATIONAL USA
Mr. PITTS. Thank you, distinguished Chairman, Ranking Member and Committee Members. Amnesty international's millions of activists in the U.S. and in over 100 countries around the world call human rights violations as we see them, based on rigorous research and regardless of the government or armed group committing them.
Our touchstone is international law, including the universal declaration of human rights and the Geneva conventions, international instruments that the U.S. helped create. Amnesty vigorously condemns terrorists attacks like the horror of 9/11. We also understand history's clear lesson that human rights and the rule of law are indispensable prerequisites to true security for all. The PATRIOT Act, along with other post 9/11 laws, executive orders and policies seriously undermine human rights, weaken the global human rights framework and contribute both to human rights violations and, we believe, increased terror attacks. The mere existence of such measures has a chilling effect on fundamental freedoms, including speech and association, religion and belief, privacy, due process and equal protection.
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These are U.S. constitutional rights. But they're also binding international law treaty obligations. Encouraging the presumption of guilt rather than innocence, the PATRIOT Act sweeps innocent people within its ambit. It has inspired a cascade of similar laws around the world that weaken the rule of law, so essential to protecting human rights, including the right to be protected from terrorist attacks.
With active U.S. encouragement almost every country around the world now has new anti-terror legislation, often modeled on the USA PATRIOT Act. Abusive governments globally, including China, Cuba, Zimbabwe, Colombia, Egypt, Uzbekistan, now cite U.S. actions to justify their own violations.
We urge Congress to correct the deficiencies of the PATRIOT Act by three main measures, restoring checks and balances, restoring individualized fact-based suspicion, and thirdly, independent judicial review. Amnesty is especially concerned about section 802's broad definition of domestic terrorism, which has already discouraged free association and peaceful dissent. Section 412's allowing indefinite detention merely upon the Attorney General's say-so, violating U.S. and international rights to due process and nondiscrimination, reduced or eliminated judicial review in sections like 215 and 505 which allow secret Government invasions of free thought, belief, religion, expression, press and privacy, and section 213's overbroad sneak-and-peak home search provision also infringing privacy rights.
Congress should enforce the Patriot Act's current sunset provisions or modify them significantly to protect individual rights and eliminate, modify or sunset the other provisions infringing individual rights. Congressional oversight should also evaluate Justice Department compliance with section 1001 to ensure that abuses under the PATRIOT Act are fully investigated, especially those against Muslim, Arab and immigrant communities. Amnesty's racial profiling report last year found that such practices increased dramatically after 9/11.
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We agree with Human Rights First and others that section 804, which expands U.S. jurisdiction to include offenses committed by or against a national of the U.S. provides grounds for Congress to support appointment of a special counsel and an independent commission to comprehensively investigate the torture and ill treatment of detainees in U.S. custody.
Over 500 people have been detained without charge at Guantanamo for over 3 years, and tens of thousands more in Iraq, Afghanistan and secret detention centers around the world. The rest of the world knows of this. And, they also know about the more than 100 deaths in U.S. custody, including the, at least, 28 homicides referred to. And the world views all this as an egregious abuse of power and a denial of the most fundamental rights of human existence.
In Amnesty's 2005 annual report, we noted that U.S. tolerance for torture and ill treatment sends a tragic and counterproductive message to the world that human rights may be sacrificed in the name of security.
Right now the U.S. domestic and foreign approaches are both preemptive, secretive, unchecked, subjective, counter to the presumption of innocence, unilateral, unreliable and abusive. Instead of being fair, legal, objective, fact-based, tested, cooperative and most importantly perhaps effective.
Congress must reiterate that human rights are an integral part of true security. Policies that facilitate torture at Guantanamo and elsewhere make us less safe and true security cannot be achieved without respect for human rights and the rule of law.
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Thank you, Mr. Chairman.
Chairman SENSENBRENNER. Thank you, Mr. Pitts.
[The prepared statement of Mr. Pitts follows:]
PREPARED STATEMENT OF CHIP PITTS
Mr. Chairman, Distinguished Ranking Member, Members of the Committee, on behalf of Amnesty International USA(see footnote 1) thank you for the opportunity to be here today.
Amnesty International's 1.8 million members in over 100 countries—including hundreds of thousands in the United States—are committed to exposing human rights violations committed by governments and armed groups around the world. Amnesty International is guided by international human rights and humanitarian law, and the standards set forth in the Universal Declaration of Human Rights and the Geneva Conventions, international instruments the United States championed and helped create half a century ago. The organization was founded to defend the right of individuals incarcerated for the peaceful expression of their views and to oppose the use of torture on any person. Its members have helped free over 40,000 political prisoners, many of whom are survivors of torture, and continues to work for the eradication of torture worldwide and the implementation of relevant international instruments that establish universal human rights standards.
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The USA Patriot Act was adopted in the weeks after the horrific attack on September 11, 2001. Amnesty International vigorously condemned the 9/11 attack as a brutal assault and a crime against humanity, and recognized the duty of every nation to protect its citizens and to seek fair justice. Amnesty International vigorously condemns terrorist attacks, and upholds the international human right to be safe from terrorism. The organization also maintains that the lesson of history is that preserving human rights and the rule of law is the indispensable and preferred route to true security.
We are concerned that the USA Patriot Act, combined with other, related post-9/11 legislation, executive orders, and policies, undermines the human rights of Americans and non-citizens in this country, weakens the framework for promoting human rights internationally, and contributes to a climate conducive to human rights violations as well as increased incidents of terror.
Amnesty International believes that the USA Patriot Act, as it exists today, is out of step with the legal requirement and critical need to preserve core principles, constitutional freedoms, and adherence to human rights even in times of crisis. The Patriot Act and related measures threaten rights otherwise protected in the U.S. Constitution and international instruments, such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Convention against Torture, and the Convention on the Elimination of All Forms of Racial Discrimination.
Provisions of the Patriot Act have had a chilling affect on freedom of speech and association, freedom of religion and belief, and privacy. The law jeopardizes due process and fair trial procedures by encouraging a presumption of guilt until proven innocent, instead of the normal presumption of innocence. The Patriot Act is of concern both in itself, and also because it has inspired a significant cascade of similar legislation around the world that weakens the rule of law which is so essential to the protection of human rights, including the right to be defended against terrorist attacks.
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The overly braod and heavy-handed approach of the Patriot Act is also reflected in other US laws, executive orders, policies and tactics that have led to excesses in the 'war on terror' and have allowed abusive governments around the world to cite the United States as an example to justify their own violations. The policies of the world's superpower disproportionately influence other nations. Governments in countries as diverse as Britain, China, Colombia, Cuba, India, Jordan, and Uzbekistan have stepped up efforts to enact or expand similarly restrictive policies. According to U.S. officials, at least 180 countries—almost every country in the world—have followed suit with legislation of their own since the USA Patriot Act was passed.
Amnesty International urges Congress to correct the deficiencies of the Patriot Act by restoring checks and balances, fact-based individualized suspicion, and independent judicial review over government implementation of the Patriot Act. These corrections are necessary both to protect fundamental civil and human rights and to more thoughtfully enhance the law's contribution, if any, to curbing terrorism. Provisions of special concern to Amnesty International include the following:
The USA Patriot Act creates a broad definition of ''domestic terrorism'' that discourages the right to free expression and association. Section 802 of the law defines ''domestic terrorism'' as acts committed in the United States ''dangerous to human life that are a violation of the criminal laws'' if the US government determines that they ''appear to be intended'' to ''influence the policy of a government by intimidation or coercion,'' or ''to intimidate or coerce a civilian population.'' Already, the Patriot Act has emboldened some school administrators to discourage participation in free speech activities, and has discouraged some peaceful dissenters from protesting.
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The USA Patriot Act allows non-citizens to be detained without charge and held indefinitely once charged, if the US Attorney General certifies that there are ''reasonable grounds'' to believe this person is engaged in conduct that threatens national security. This runs counter to US and international rights to due process and to non-discrimination.
And the USA Patriot Act infringes on the right to privacy and removes many types of judicial review over law enforcement and intelligence activities, which may in turn facilitate the commission of abuses of other human rights. For example, Section 215 of the USA Patriot Act permits the government to scrutinize peoples' reading habits through monitoring of public library and bookstore records and requires bookstores and libraries to disclose, in secrecy and under threat of criminal prosecution, personal records of reading and websurfing habits. This harms freedom of thought, belief, religion, expression, press, as well as privacy. Librarians have stated publicly that they are torn between abiding by the law and violating their patron's right to privacy. The Patriot Act also allows for ''sneak and peek'' search warrants to conduct physical searches of property and computer records without providing notification, wiretapping and monitoring of e-mail, access to financial and educational records, among other areas. The right to be free from arbitrary interference with individual privacy is protected in both the US Constitution and the International Covenant on Civil and Political Rights, to which the United States is a party.
Amnesty International urges the U.S. Congress to enforce the sunset provisions currently in the USA Patriot Act, or modify them significantly to protect individual rights, and eliminate, modify, or place sunsets on other provisions that infringe on individual rights of all Americans and non-citizens.
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We urge the U.S. Congress to exercise its important oversight role to examine implementation of the USA Patriot Act. In particular, Amnesty International is concerned by abuses against Muslim and Arab communities in the United States, and the generally hostile climate against immigrants. Amnesty International last year released a report on racial profiling in the United States and found that racial profiling practices by law enforcement have expanded in the government's ''war on terror'' and threaten to affect an estimated 87 million individuals in the United States. The report, ''Threat and Humiliation: Racial Profiling, Domestic Security, and Human Rights in the United States'' finds that law enforcement's use of race, religion, country of origin, or ethnic and religious appearances as a proxy for criminal suspicion undermines national security. Racial profiling blinds law enforcement to real criminal threats and creates a hole in the national security net.
Congress should evaluate the Department of Justice compliance with Section 1001 of the law with regard to complaints alleging abuses of civil rights and civil liberties by employees and officials of the Department of Justice. Congress must ensure that department policies prevent racial profiling and abuse. This is a matter of upholding civil and human rights, applying the rule of law, and enhancing national security by protecting the human rights and freedoms of all.
Amnesty International also urges the U.S. Congress to exercise its important oversight role in examining the performance of the U.S. Government in implementing Section 804 of the Patriot Act. Section 804 amended the definition of ''special maritime and territorial jurisdiction of the United States'' to include ''offenses committed by or against a national of the United States'' on diplomatic, consular or military premises. The U.S. government has failed to date to support a truly independent and comprehensive investigation into abuses against detainees in U.S. custody.
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That is why Amnesty International continues to call on the U.S. Congress to establish a truly independent commission , which has not happened yet, and to urge the Attorney General to appoint a Special Counsel to investigate reports of torture and ill-treatment of detainees held in U.S. custody in Guantanamo, Bagram, Abu Ghraib, and detention centers—including secret detention centers—around the world. For over three years, over 500 individuals have been held in indefinite detention in Guantanamo in conditions that spurred the International Committee of the Red Cross to break its tradition of silence and protest publicly U.S. mistreatment of detainees. General Richard Myers has indicated that at least 68,000 individuals have been detained around the world in the so-called ''war on terror''. We have all seen the photographs taken at Abu Ghraib, but we may not know that there have been over 100 deaths in custody, of which at least 27 have been ruled ''homicides''.
Amnesty International recently released its 2005 Annual Report which summarized human rights conditions in 149 countries and territories. Upon releasing the report, Amnesty International noted that the images of detainees tortured in Abu Ghraib shocked the world. As evidence of torture and ill-treatment of detainees in US custody in other countries continues to emerge, the United States is sending an unequivocal and severely damaging message to the world that human rights may be sacrificed ostensibly in the name of security. Congress must act to reverse this message, ensure an independent investigation into abuses, and uphold the rule of law and international standards of human rights for all. We are not safer when we abuse others. But we are safer when we promote conditions that allow every person to exercise their human rights and freedoms.
Thank you.
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Chairman SENSENBRENNER. The Chair will recognize Members under the 5-minute rule. The gentleman from Michigan, Mr. Conyers.
Mr. CONYERS. Thank you, Mr. Chairman. I first begin by praising the four witnesses who, on such short notice were able to pull these excellent statements together. I want to put out these questions because, as you know, 5 minutes is a very short amount of time. And you may respond to them as you feel inclined. What changes do you think need to be made in the PATRIOT Act to prevent legal and innocent people from being unjustly punished or persecuted? That is the first question. The second, the Inspector General found that the detention of aliens after 9/11 ''indiscriminate and haphazard.'' Do you believe that the Department of Justice's approach in this matter has become any better? Do you believe the Administration has adequately investigated allegations of torture, in Iraq, Afghanistan, and Guantanamo?
And, is there anyone here that does not support an independent commission or select committee to investigate? And is any one of you experts here aware of a single terrorist arrest or conviction that came from the registration of or interview of over 10,000 men of Middle Eastern descent? Please, those of you who are witnesses may.
Chairman SENSENBRENNER. Who wants to be first?
Mr. CONYERS. You can begin.
Chairman SENSENBRENNER. Ladies first.
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Ms. TAPIA RUANO. Thank you, Mr. Pitts, and I would like to address some of these questions, not all of them, since I understand it is as we feel willing and with regards to the detention of illegals as it relates to non-citizens that, at this time, Department of Homeland Security is, you know, is a newly-created department and has been very distracted with reorganizing itself and that has definitely contributed to its ability to detain less people. I do think less people at this time are being detained as a result of post 9/11 investigations. But I also think it is important to note that the Department has recognized the failures of its prior policies and of its prior initiatives.
And, as any good agency, is attempting not to repeat its failures. I would also say that, of course, I would support an independent commission to investigate this. And no, as an immigration attorney which considers herself pretty well informed as to what happens in the country with regards to immigration detentions, I am not aware, and that is all that I can address to—I am not aware of a single occasion where any of the individuals that were brought in, noncitizens, as a result of these post 9/11 investigations were, in fact, charged with any 9/11 terrorist activity.
Mr. CONYERS. Thank you so much.
Mr. Pitts.
Mr. PITTS. Thank you, Congressman. In answer to your first questions about changes needed to prevent unjust persecution in the PATRIOT Act, we think again that there are three broad categories, adding checks and balances, adding independent judicial review, and adding requirements of individualized fact-based suspicion. We think that those are essential to make sure you are not stereotyping innocent Muslims or Arabs. And it is interesting how much ignorance there is on this issue. People assume that Muslims are Arabs and vice versa when Arabs are a small minority of Muslims in the world and the U.S., and, of course, Muslims are of as infinite variety as the world itself. One out of every 5 people in the world. So the anti-foreigner provision in section 412 of the PATRIOT Act, for example, which allows rolling and potentially indefinite detention, and is discriminatory based on the subjective say-so of one man is a good example of the discriminatory disrespect for the objective rule of law that we need to have effective action against terrorism, not stereotyping but identifying the real threats.
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Similarly, our racial profiling report last year pointed out that racial profiling just doesn't work. Think for a second about the most famous alleged members of al-Qaeda, Richard Reid, the shoe bomber, British national of West Indian descent; or the white guy from California, John Walker Lind, for example, or Jose Padilla, Hispanic gang member. You cannot possibly say that we are going to profile against people who look Middle Eastern and expect to be successful against Al Qaeda. What we need to do is not just have formal rhetoric against racial profiling, but recognize that the huge, gaping national security exception is illegitimate. It allows discrimination and a resurgence of religious, national origin and race-based discrimination that doesn't work.
Mr. CONYERS. Thank you. Mr. Chairman——
Chairman SENSENBRENNER. The chairperson will recognize the witnesses and the time of the gentleman has expired. The gentleman from Iowa, Mr. King.
Mr. KING. I thank the Chairman and I appreciate the witnesses being here today and those Members of the Committee that are here today, and I had the privilege of adjusting my travel plans to be someone who could benefit from this testimony today. Some of the things that come to mind, I think, I will direct initially to Mr. Pitts.
Could I ask you, if you could define for this Committee, the distinction between the standards in a criminal investigation with regard to subpoenas, that have been long accepted in the United States as something that protects and preserves the human rights of all citizens in this country. The distinction between that standard and the standard that is implemented by the PATRIOT Act with regard to that same type of search warrant.
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Mr. PITTS. Absolutely, Congressman King. Thank you for the opportunity to clear up the rampant confusion on this point. In fact, just a couple of days ago with Deputy Attorney General James Comey's testimony before this Committee, he said that the standard in the PATRIOT Act is the same thing, probable cause. And he reiterated that there is probable cause to be an agent of a foreign power. That is a bit misleading, because when you read the actual language of the statute, at several points, for example, in section 215, the actual standard in the law is that an investigation is launched by the subjective interest of the law enforcement powers, and the information is sought for the purposes of that investigation. That is not a probable cause standard. Neither is the standard in section 505, which isn't even a relevant standard, the national security letter.
So there is a dramatic difference between the regular criminal authority, which can be challenged. A grand jury subpoena can be challenged. That is not allowed under the gag orders of those sections of the PATRIOT Act.
Mr. KING. Mr. Pitts, I want to point out that you stated before this Committee that your opinions are based upon rigorous research, and I would ask the Committee to note that you brought a lot of that with you today. I have not seen one quite so prepared with their office in front of them. It looks like my office, at any rate.
Mr. PITTS. Sorry for littering your table.
Mr. KING. But the distinction between the legal standard of the search warrant being the distinction on a grand jury subpoena versus a court order, could you speak to that?
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Mr. PITTS. Absolutely. I welcome again the opportunity to clear this up. The FISA warrants of the secretive FISA court, which are a secret court that are mandated, they have no discretion to refuse the application if they find an informal order is very different from the normal criminal process, whether it is a grand jury subpoena, which, as I said, can be challenged, or whether it is a search warrant, which actually is premised on information that generally has a probable cause to think that the person or place is guilty of a crime or terrorism.
Mr. KING. And you are also aware that there is a report required to come before Congress, if there are any abuses of the PATRIOT Act, and I would ask if you could name a specific case where there has been someone in a library, in a bookstore, that has had their human rights violated based upon the language in the PATRIOT Act.
Mr. PITTS. Absolutely, Representative King. This is another important point that I welcome the opportunity to clarify. The notion that there hasn't been an abuse is one of the most egregious myths about this act. First of all, the mere existence of these laws as I said is an abuse. It is a chilling effect on Americans' rights to get library records. Secondly, in the climate of secrecy under the PATRIOT Act, there is no way that we can know what abuses have occurred. But thirdly we all have, at the ACLU, at Amnesty, the American Library Association, the Bill of Rights, defend committees, the other witnesses here, have all independently received word of abuses.
I got an e-mail last week from a librarian, sir, in Seattle, Washington, who had been approached by the FBI to give a list of all people who had checked out a biography of Osama Bin Laden since 9/11. Now she had the courage to refuse that. But how are we going to understand our enemy and understand Al Qaeda and the truth the threat the violent extremism poses if we can't expose Government vulnerability?
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Mr. KING. I understand your list of allegations, but I wonder if you can give us a specific list of people, individuals with names, specific cases that could be looked into by this Committee to see if there actually have been specific cases of violation of the PATRIOT Act and violations of people's human rights rather than the allegations under your vigorous research standard?
Mr. PITTS. Sure. There are a number of people who have been affected. Again, it is difficult to know exactly how many because librarians are under a—subject to criminal prosecution if they report these things. But a number of librarians courageously came to me in Dallas, Texas and I heard from people that they have been approached.
Mr. KING. Could I ask you, Mr. Pitts, to present that list to this Committee? Would you provide that information about specific cases?
Mr. PITTS. I did mention a couple before the Dallas City Council when we had a bill of rights defense committee resolution on this subject. Toby Baldwin is the name of one librarian, for example, who experienced a request.
Mr. KING. Has that been looked into, do you know? Is that factual or is it an allegation at this point?
Mr. PITTS. No. We know that lots of librarians have been approached for records. Often the PATRIOT Act is not formally——
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Chairman SENSENBRENNER. The gentleman's time has expired. The gentleman from Virginia, Mr. Scott.
Mr. SCOTT. Thank you, Mr. Chairman. Mr. Pitts, let me follow through on the probable cause thing, because they shout probable cause in a criminal investigation, you have to have probable cause that a crime has been committed. Is that not right.
Mr. PITTS. That is correct, sir.
Mr. SCOTT. And under the FISA warrant, you only have to have probable cause that the target is an agent of a foreign government and you are trying to get foreign intelligence which may be criminal or not, is that right?
Mr. PITTS. That is correct. And a key point is that the PATRIOT Act, reduces that standard even further in ways that have not yet, I think, been realized by the public at large.
Mr. SCOTT. You mean, like the probable cause is the agent of foreign government and a substantial reason for the wiretap is foreign intelligence, but it may not be the main reason, so you could be talking about something that is not even a crime, that is not even the primary reason you are getting the wiretap.
Mr. PITTS. That is right. That is the problem with one of the——
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Mr. SCOTT. So when they shout probable cause, you have to listen very carefully because it is not probable cause that any crime is even being alleged as part of the reason for the wiretap?
Mr. PITTS. Exactly.
Mr. SCOTT. You mentioned 100 deaths, 27 homicides. What is the status of those? How many have been arrested in those homicides?
Mr. PITTS. I am going to let Ms. Pearlstein address that.
Ms. PEARLSTEIN. Thank you, Mr. Scott. And thank you, Mr. Pitts. The status of many of those cases remains unclear because of the level of secrecy surrounding the investigations, the individual investigations. But to the extent they are known, there have been some prosecutions within the context of the military justice system and those are welcome.
The record, however, is completely inadequate, that is to say, there are deaths, gruesome deaths, to be frank, that have occurred in U.S. custody, people who have been tortured to death. Their stories to some extent have appeared on the front pages of the paper. And to date, no one, no individual has been held criminally or otherwise liable for those deaths. So, not only is this a challenge for the Department of Justice, this is a challenge for the Department of Defense. And, I think, at this point now that these deaths are several years old and the trail of evidence and so forth, of course, grows cold, it is time for Congress to engage.
Mr. SCOTT. Thank you. Dr. Zogby, you mentioned the fact that America may be less popular. What impact does that have on our war against terrorism? Does it make a difference?
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Mr. ZOGBY. Sure it does.
Number one it makes some foreign governments less willing to publicly cooperate. Number two, it creates a groundswell of support for those who would do harm to our country. The less popular we are, the more popular those who attack us are.
Mr. SCOTT. And what difference does that make?
Mr. ZOGBY. The difference is that the pool of those who are available to be recruited to do harm against America grows larger, and the ability of governments to act together with America becomes smaller. And I will also say that we have seen repressive policies instituted by governments in the Middle East. Contrary to the President's own program, wanting to promote democracy, some of our allies have become more repressive precisely because there is an anti-American groundswell in those countries as a result of our policies. And when we polled in the region, we always found that issues like the Arab-Israeli conflict, and more recently Iraq, were sources of discontent.
In the most recent poll that was done by Zogby International in the Middle East, we found that America's treatment of Arab and Muslim immigrants have, in some countries, eclipsed those other issues as the number one source of anger with America and the frustration of America in not projecting its values, even as it applies to those who live within their borders.
Mr. SCOTT. And the translation is that the activities make us less safe.
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Mr. ZOGBY. Decidedly so. And I think that we ought not fall prey to spinning our successes. We ought to look at the reality on the ground. You wouldn't run for office without doing some polling. And we do polling, and what we find in our polling is that America is actually less popular, and I believe less safe as a result of those policies.
[9:30 a.m.]
Mr. SCOTT. Ms. Tapia Ruano, can you talk about holding people without charges, and the checks and balances that are available when people are held as enemy combatants or material witnesses indefinitely?
Ms. RUANO. Well, what I would like to address, from individuals who are alleged to be charged for being here engaging in 9/11 terrorist activities, and ultimately result in only being charged with civil minor immigration violations. And those individuals, again, as I mentioned before, do not have the opportunity to even know why they're being detained; they're held in custody for months. This is something that, to our knowledge, is not happening at the present time. It definitely is documented as having taken place immediately post-9/11 and for a few months thereafter.
Mr. SCOTT. What are the checks and balances available, and when do people get to be heard as an enemy combatant?
Chairman SENSENBRENNER. The gentleman's time has expired.
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The gentleman from California Mr. Lungren.
Mr. LUNGREN. Thank you very much, Mr. Chairman. And thank you for holding this hearing.
I would just—I say that at the outset, I've been involved in these issues for a long time. I served for a year and a half on a panel that looked at, in retrospect, our treatment of Japanese nationals and Japanese-Americans during World War II, where we were able to review mistakes that were made at that time.
When I ran for Congress this last time, I was accused of being soft on terrorism and soft on immigration because I supported legislation which gave rights to people who were immigrants. I had to respond to an attack that I thought was unduly critical and racially and religiously profiling certain groups as a part of a political attack.
Having said that, however, I am somewhat disturbed by the contours of the request for this hearing. I wonder why those who asked for this hearing did not ask for any witnesses from the Administration to be able to respond specifically to the allegations that are raised, number one.
Number two——
Mr. CONYERS. Will the gentleman yield?
Mr. LUNGREN. Well, I only have 5 minutes, and the gentleman has had 15, I think, so far.
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Number two, some of the statements suggesting that we had routine torture that somehow causes the rest of the world to respond negatively to us are way over the top. The investigations have shown specific examples of inappropriate activity, criminal activity by individuals, and they're being prosecuted at the present time.
A statement made about the routine desecration of the Koran is absolutely contrary to the facts of the investigation that were shown. And the gentleman, Mr. Zogby's, statements that those kinds of things, that kind of evidence gives us a negative response in the non-U.S. world, the Arab community, the Muslim community, ought to be cautionary to those of us when we look at these sorts of things.
One should look in detail at the report with respect to the instance involving the Koran. And one, I think, would be impressed by the care which is taken by those that at Guantanamo Bay with respect to the protection of religious rights there. And in those specific instances where there have been violations, those have been investigated; action has been taken against those people.
So I just would hope that those on the other side would understand the concerns some of us have about the contours of this particular activity.
Secondly, the Creppy memo is no longer followed by the Administration. We had testimony to that effect by Mr. Comey, testimony to the effect of Mr. Comey that they were trying to do things immediately after 9/11 to try and respond to the risk and the threat as they saw it at that time, but they have made changes, and it is not being followed. That was the direct testimony of Mr. Comey under oath here, and I wish that to be entered into the record.
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And finally, with respect to section 215, let's understand what section 215 is. Section 215 has to be an application to a court that has to make a determination, number one, that it involves a foreign agent; number two, that it is relevant to an investigation against international terrorism or clandestine intelligence activities; number three, that it is not directed against a United States person solely on the basis of activities protected by the first amendment of the Constitution of the United States. All of those things have to be shown to the court. The court has to make a determination that, in fact, those things are present. So the idea that somehow section 215 is being used willy-nilly to go after people merely because they check out books in one particular place or another is just not correct. The court does make those determinations. We have made specific inquiry with respect to that and found that to be the case.
And finally, I would just say this: It is patently absurd to create a moral equivalence between the United States and China, Zimbabwe and other countries, as your statement, Mr. Pitts, has suggested. If the suggestion is they need examples to prop up the activities that they engage in versus their citizens, that's patently absurd. The suggestion that somehow, because of the passage of the PATRIOT Act, we are leading those kinds of countries to involve themselves in abuses of other countries is, frankly, I think, seriously amiss.
This Committee has had—actually, Mr. Chairman, we've had 11, not 7, 11 oversight hearings in the Subcommittee and full Committee on the PATRIOT Act. We have gone over section by section by section——
Chairman SENSENBRENNER. The gentleman's time has expired.
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The gentleman from North Carolina Mr. Watt.
Mr. WATT. Thank you, Mr. Chairman. And I want to thank the Chairman for convening the hearing, even though he is doing it according to the rules, and it started out kind of testy.
And I also thank the Chairman for not interrupting the witnesses and applying an overly technical view of this hearing. I think it would have served a very negative purpose to do that, and I want to applaud you publicly for not doing that during the testimony of these witnesses.
Briefly, I'd just like to reiterate a point that I made yesterday in a speech I gave to the Charlotte Chamber of Commerce, interestingly enough, in which I said that it is not unusual in the aftermath of things like Enron or things like the accounting scandals or things like 9/11 for the legislative process to overreact and do more than is necessary to address or correct the problem, and that the true test of a legislative body is really our ability not so much to overreact sometimes, but to, once we have overreacted, understand the impact of that overreaction and then make the necessary adjustments, because all of us are engaged in not a science, but a process of trying to find what the appropriate and right balance is in all of these situations. And it seems to me that if we try to find that balance listening only to the people who have defended the action or reaction that the legislative process has made, either to Enron or to 9/11 or to accounting scandals or whatever we're doing in the legislative process, if we're not listening to all of the people who are impacted by these decisions, then we do ourselves, as legislators, a real disservice, and we do our country a real disservice.
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So I think really that's what we are involved in here, trying to find what that appropriate balance is, what was, should have been, should be going forward. We found a balance in this Committee which we unanimously endorsed, only to see it changed in the PATRIOT Act when it went to the Rules Committee.
And so I just want to generally thank the Chair for the series of hearings and these witnesses for being here today to help us try to find that balance.
Now, my colleague on the other side has made a number of comments, which I could tell each of you are anxious to respond to, and him having run out of time, perhaps I should give Ms. Pearlstein at least an opportunity to respond.
Ms. PEARLSTEIN. Thank you very much, and thank you for your comments.
I want to just respond briefly to the suggestion about the prosecution of individual acts of torture and abuse that have been identified by the Pentagon as occurring in U.S. detention facilities overseas. A handful of these have been prosecuted under the Uniform Code of Military Justice. A much larger number of them, to the extent they've been dealt with at all, have been dealt with by administrative or incredibly light disciplinary punishment; that is, revoking of mess hall privileges. The vast majority of them have yet to be addressed. This is a failure of the Department of Justice. This is a failure of the Pentagon. This is why we believe an independent commission is needed to look at these things.
On the point of why the international community and many Americans may be frustrated by this——
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Chairman SENSENBRENNER. The gentleman's time has expired.
The gentleman from Arizona Mr. Franks.
Mr. NADLER. Mr. Chairman, point of order.
Chairman SENSENBRENNER. The gentleman from Arizona Mr. Franks is recognized.
Mr. NADLER. Mr. Chairman, point of order.
Chairman SENSENBRENNER. The gentleman will state his point of order.
Mr. NADLER. Mr. Chairman, it has generally been the practice of this Committee that witnesses are permitted to finish the sentence so that what they're saying will not be interrupted in midsentence——
Chairman SENSENBRENNER. The rules state that the Chair has the prerogative to recognize Members and to enforce the time limits. The Chair is enforcing the time limits, and the gentleman from Arizona Mr. Franks is recognized.
Mr. FRANKS. Thank you, Mr. Chairman.
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Mr. Chairman, sometimes an open, democratic Republic like the United States of America is so transparent that both its warts and its qualities are seen before the world, and that's a healthy practice. But, Mr. Chairman, in recent days we've seen and heard comparisons of the policies of the United States and the practices even in prisons with the Soviet gulags, that somehow the United States has become a negative for the cause of human freedom in the world. And I find that to be something that completely defies reason in the mind of any person who has any historical view of the United States.
And I think sometimes we do a great disservice to the cause of human freedom when we tear down the greatest force for human freedom that the world has ever known, and that's the United States of America. And, Mr. Chairman, having said that, I'd like to direct a couple of questions to Dr. Zogby.
Dr. Zogby, in your recent testimony, you made the complaint that the Justice Department had detained immigrants in the aftermath of the 9/11 attacks, but isn't it true that the investigation of these individuals had absolutely nothing to do with the PATRIOT Act, and, in fact, these events occurred before the PATRIOT Act was even enacted; is that correct?
Mr. ZOGBY. Some of them were before, and some of them were after. The call-ups that occurred following this in October, and then later on, I think, in January of 2002 and special registration went well beyond the initial round-up, the numbers of which we actually don't know. They were making numbers public, and at one point they stopped making numbers. People got stuck on the 1,200, but frankly the numbers appeared to go much higher.
We don't know the outcome of all of those. There have been independent reviews, both within the Department of Justice and by groups outside, who have interviewed several of the people, both still here in the United States and those overseas. The inspector general's report, I think, was very clear on the number of those cases that reported abuse, reported horrific treatment within the prisons. And I think it is important to recognize this is an issue that requires closer scrutiny.
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Ms. TAPIA RUANO. If I may also respond to that question?
Mr. FRANKS. Let me ask an additional question, Dr. Zogby, and then you feel free to respond.
In your written testimony you also mentioned that the detainees—in Guantanamo Bay in general, but isn't it a fact that those being held in Guantanamo Bay are not being detained pursuant to any authority contained in the PATRIOT Act? And, in fact, if the PATRIOT Act was repealed today, would it have any effect on the status of these detainees in Guantanamo Bay at all?
Mr. ZOGBY. I'm not aware and can't speak to that issue, but I will tell you the issues I mentioned were Guantanamo and other locations around the world. And I was speaking about that in the context of what it has done to our image internationally.
And I want to address that and want to address as well the remarks raised by Congressman Lungren. The issue of torture. You know, once we're authorized the use of practices that previously were considered and in international law are considered torture, and lowered the standard of what constitutes torture so that now sleep deprivation, use of creating stress in those under detention, and even physical abuse to some degree is not constituting torture, then of course the number of those cases that we're going to prosecute are going to be less because we absolve people of priority of torture by saying this no longer constitutes torture.
And this is what concerns me is that we have governments in the Middle East and elsewhere in the world who now say, we do not torture people, we do what the United States of America does. That bothers me, and it ought to bother everybody on this Committee. It's not covered in the PATRIOT Act, but it is an issue that we ought to be concerned about.
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Mr. FRANKS. Dr. Zogby, just for the record, I think to suggest that deliberate routine torture is the committed policy or the deliberate policy of the United States defies any sort of credibility.
Mr. ZOGBY. Sir, I didn't write the memos, I didn't write the memos; the memos are there. There is a paper trail about what we have done. And I think that the degree to which we continue to deny that we've done it, we do not look good in the eyes of the world, nor should we feel good about ourselves as we face the American people. We have an issue that must be addressed, and it will be addressed either by us or future generations——
Chairman SENSENBRENNER. The gentleman's time has expired.
The gentleman from New York Mr. Nadler.
Mr. NADLER. Thank you, Mr. Chairman. And let me express my appreciation for your civility to the witnesses.
Ms. Pearlstein, you talked about 12,000 prisoners in major new permanent detention. Section 412 of the PATRIOT Act, I think Ms. Tapia Ruano mentioned that under section 412 the Attorney General can detain alien terrorist suspects that he designates as such for up to 7 days, and that he must certify he has reasonable grounds to believe—et cetera. Within 7 days the Attorney General must initiate removal of criminal proceedings or release the alien.
The President, under military order number 13, allows the Secretary of Defense to detain designated alien terrorist suspects within the United States without express limitation and condition, and apparently without any length of time restriction. Under what legal authority did the President issue that order? And how do they get around the 7-day restriction, which was very carefully negotiated in this Committee in section 412 of the PATRIOT Act?
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Ms. PEARLSTEIN. I think the short answer to your question is there is no clear answer from the Administration to what the basis of the legal authority is, and I think it is important to distinguish——
Mr. NADLER. Has that been challenged in court?
Ms. PEARLSTEIN. The basis of the legality of the detention of people being detained at Guantanamo Bay, that people being detained in the United States, in particular Jose Padilla, who was subsequently released following a ruling of the Superior Court, and the detentions in Afghanistan and Iraq have been challenged in U.S. courts only in the context of civil litigation challenges brought by people who were subsequently released from detention, challenging acts of torture and abuse that they were subject to while in detention.
There is currently no mechanism of which I'm aware and no suits or any other proceeding through which I'm aware of anybody held in custody in Afghanistan and Iraq to challenge the legality of their detention in U.S——
Mr. NADLER. Under section 804 of the PATRIOT Act, I think you said, giving jurisdiction abroad,why can't you get a writ of habeas corpus?
Ms. PEARLSTEIN. Section 804 of the PATRIOT Act provides only that the Department of Justice now has jurisdiction to prosecute offenses that are committed——
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Mr. NADLER. But does not give jurisdiction for the defense attorney to question his intentions.
Ms. PEARLSTEIN. Under that particular provision. All that is about is the U.S. Government's prosecutorial authority. The Federal habeas statute, which exists on the books separate from the USA PATRIOT Act, is still on the books. To my knowledge it has not been deployed by a current detainee abroad.
Mr. NADLER. Thank you.
Ms. Tapia Ruano, is it true that immigrants who have been found eligible for bail have been kept from being released?
Ms. TAPIA RUANO. Yes. And it's even more outrageous to consider that immigrants who have been granted legal permanent residence after their full merits hearings have also, as a result of 9/11, detainee status been retained in jail until they received a clearance from the United States.
Mr. NADLER. Under what authority?
Ms. TAPIA RUANO. Under the regulation that allows individuals to be kept under—it's not a regulation, I'm sorry, under the understanding of policy memos—I can't point to them directly because we haven't seen them in writing, but we know it exists—but it is a policy, it's a cooperation that until the individual is ''cleared by the FBI, such individual is not released, regardless of the decision by the agency.''
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Mr. NADLER. Regardless of the decision of the agency. And why aren't people subject to habeas corpus release?
Ms. TAPIA RUANO. Based on my understanding of the law, until those individuals are subject to some final order, those individuals, in fact, don't have an opportunity to file a habeas. Since the Real ID Act was passed very recently, now I would suspect—and I haven't been able to study it well enough to advise you—but I would suspect that that would also limit any right that individuals have to take habeas court proceedings if it involves immigration-related relief.
Mr. NADLER. So an immigration-related case, even after they have been found eligible for bail, they can be detained indefinitely?
Ms. TAPIA RUANO. The individuals normally—and this happens today—individuals, noncitizens, can be detained after they have been granted bail by a judge by having the agency, the prosecutor, issue a stay of that order——
Mr. NADLER. The prosecutor or a court?
Ms. TAPIA RUANO. The prosecutor.
Mr. NADLER. The prosecutor can stay the court's judgment?
Ms. TAPIA RUANO. Absolutely. And that happens every day.
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Mr. NADLER. Do you know of any other area of law where a prosecutor can overrule a judge?
Ms. TAPIA RUANO. I'm unfamiliar with other areas of law, so I can't really answer that question.
Mr. NADLER. Anybody on the panel know of any other area of law where a prosecutor can overrule a judge's decision to release a person on bail?
Mr. PITTS. Well, it is happening right now. The Supreme Court of the United States decided in the Rasul case a year ago, the enemy combatant case, that detainees in Guantanamo were entitled to a lawyer and to Federal court review, and that has not happened——
Chairman SENSENBRENNER. The gentleman's time has expired.
The gentleman from North Carolina Mr. Coble.
Mr. COBLE. I thank the Chairman. I thank the witnesses for being here.
I too want to thank Mr. Scott and Members of the Democrat and Republican side of the aisle and staffers who have worked with me as we conducted nine oversight hearings under the Subcommittee on Crime, Terrorism, and Homeland Security, and I think this is the 12th hearing. And I take great umbrage, Mr. Chairman, when I hear people say, well, you all are trying to ram through the PATRIOT Act.
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We're not trying to ram through it at all. After nine hearings—and, by the way, the nine hearings were very productive, I think. Now, in some instances the witnesses departed from the PATRIOT Act, as I may do in my statement, and I was generous about that, and I didn't admonish anybody. But I've heard some folks claim that the United States has the worst human rights record in the world. Folks, that boggles my mind. I'm not suggesting that you all said that; others have said that to me. Conversely, I think we probably have one of the best human rights record than anybody in the world. Perfect? No, not by any means, but far more than most countries.
Abu Ghraib, do I support what was done there? Indeed not. But, folks, I'm not going to use a broad paint brush to portray our men and women in the armed services as being human rights abusers. Now, there were a couple, perhaps a limited number, of stupid acts that have been addressed through a court martial, I'm told, and that is, indeed, appropriate.
I guess what gets my juices flowing, Mr. Chairman, is when I see these thugs, whose faces are concealed by masks that cover their face, anxiously waiting to behead innocent hostages, when I see that on the one hand, which is a 1-day news story, and then we hear about Abu Ghraib, and—and again, I'm not defending Abu Ghraib, but the Abu Ghraib story appears to be eternal. The thugs who are anxious to behead innocent hostages is a 1-day story and obviously not newsworthy. Folks, it's damn newsworthy to me and to most Americans.
And I think these hearings are healthy; I think we are plowing sometimes new ground, Mr. Chairman. Sometimes we are plowing the ground that has been plowed nine times before, but I don't mind doing that if we can get to the truth, if we can improve the situation.
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Dr. Zogby, I think you mentioned about 9/11. It's a day that will, indeed, live in infamy. We were minding our business, and then we were attacked, and over 3,000 people killed, and you say many Arab Americans, inexcusable. And if I appear to be subjectively involved, I am subjectively involved. And before I get too subjectively involved, before the Chairman comes down on me, before that red light illuminates, I'm going to yield back my time.
Chairman SENSENBRENNER. The gentleman from Maryland Mr. Van Hollen.
Ms. JACKSON LEE. Point of order, Mr. Chairman.
Chairman SENSENBRENNER. State your order.
Ms. JACKSON LEE. Thank you very much, Mr. Chairman.
Let me, first of all, thank my distinguished colleagues Mr. Van Hollen and Ms. Wasserman Schultz——
Chairman SENSENBRENNER. The gentlewoman will state her point of order.
Ms. JACKSON LEE.—for being willing to yield to me. I want to make it clear——
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Chairman SENSENBRENNER. The gentlewoman is not stating a point of order, and the gentleman from Maryland Mr. Van Hollen is recognized.
Ms. JACKSON LEE. Mr. Chairman, I was in the room before my two colleagues; however, I will yield to my two colleagues because of the disorientation of the Chairman. Thank you very much.
Mr. VAN HOLLEN. I thank my colleague, and I thank all the witnesses for their testimony this morning.
And, Mr. Zogby, I wanted to follow up on a couple of points you made, because you talked about the impact on people around the world of actions taken here in the United States, and the perceptions that that gave to people. And you mentioned those in the context of the PATRIOT Act, but also Abu Ghraib and some of the indefinite detentions that took place. And you made what I think is a very important point that needs to be emphasized, which is, this is not about winning a popularity contest. Yes, it's nice to be liked around the world, but the most important thing that we can do as Americans is to make sure that we protect our security.
But essential to protecting our security is making sure that people around the world in many cases have a positive impact upon the United States, especially when we're pursuing an effort to encourage and promote democracy around the world. And as you said, we all share the view that the United States must be a leader in promoting democracy and human rights around the world, and if we're going to be encouraging elections, free and open and fair elections, in places in the Middle East, if we're going to be encouraging free and fair elections in many other places around the world, then it's important to us how people who are going to be voting in those elections perceive the United States, because we hope that they will elect leaders who will be supportive and friendly toward the United States' interests, and to the extent they have a negative view of the United States, it's much easier for those who would want to demagogue the United States to win in those elections.
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And so an integral part of our democracy promotion effort overseas, it seems to me, is making sure that the United States continues to be perceived, as it has been in the past, as a great leader for freedom and a great leader for human rights. And to the extent that we tarnish that image, we hurt our own national security interests, and we hurt our ability to fight the war on terrorism.
You've done a lot of work in this area. Could you please talk a little bit more about how those negative perceptions of the United States can undermine our own efforts to promote democracy in those regions in a way that is consistent with our national security interests?
Mr. ZOGBY. And, Congressman, I thank you. And I would say I'm not sure I could do it more eloquently than you've just done. I think you have made the case very clear.
But I would say to you that this is not about us being the best or the worst. At the end of the day, there is not a scale that judges America with other countries. And I think Congressman Coble is right about that. We set a higher standard and always have. We have always been and wanted to see ourselves be the city on the hill, and that's why democratic reformers have looked to us. When they no longer look to us in their governance, instead look to us to validate policies that bring about repression, then I think we have to examine ourselves not only for our foreign policy purposes, but I think also for a sense of are we being true to ourselves and to our Founders, and to the sense of the value of America that we teach our children. I think that is really fundamental here.
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The pictures of Abu Ghraib were not a 1-day story, and they shouldn't have been, because that's not who we are. And those pictures are going to be soon replicated by other pictures from Abu Ghraib that will come out at the end of the month, and we will be reminded again and the world will be reminded again that America stopped being America.
The stories of the Koran are not a few, but there are many, number one. And number two, the inspector general reported that the Department of Justice shows that those very practices took place domestically in metropolitan detention centers.
We need to be fair to who we are. If we deny who we are, I think we lose our ability to lead in the world. When foreign governments become more repressive—because as people become more angry at America and become more angry at their government's leadership for being supportive of America, we are, in effect, creating a groundswell for terrorism. As we said, antidemocratic practices produce terrorism. By those very practices that we are encouraging or by example leading other governments to pursue, we are making other countries in the world less free, we're making the countries less democratic, and we're making America a role model for less democratic and less free practices. And there is a tragedy in all of that because it undercuts our effort to fight terrorism and make us more secure.
Mr. VAN HOLLEN. Thank you. And let me just say——
Chairman SENSENBRENNER. The time of the gentleman has expired.
The gentleman from Indiana Mr. Pence.
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Mr. PENCE. Thank you, Mr. Chairman. And thank you for the long series of hearings that you have held on the PATRIOT Act; they have been enormously informative to me as a Member of this Committee who was involved in drafting this PATRIOT Act.
I also want to thank the panel. It is not easy to come before Congress, and I am grateful for your patriotism and your citizenship displayed today.
I want to direct my remarks and my questions specifically and respectfully to the Chairman of the Board of Amnesty International, Mr. Pitts. And let me say I'm a bit of a fan of Amnesty International. I actually went to the floor a week before the initiation of hostilities against Iraq and for a full hour quoted Amnesty International's outstanding research on the profound and appalling human rights record of Saddam Hussein. Tens of thousands incarcerated. I, frankly, found your research to be very moving. Quite a few people in precincts around the country didn't appreciate this conservative Republican quoting Amnesty International to justify, in part, the war, but I have appreciated your work.
It's in that context that I must tell you, Mr. Pitts, I was very troubled by your description of the U.S. detention facility at Guantanamo Bay as a gulag of our times. There has been a lot said by Mr. Van Hollen a few moments ago and other colleagues about the importance of our image in the world, and I think prison abuse is an appalling thing, and I'm pleased at the aggressive prosecutions that have taken place of military personnel who have been accused of that, and believe that that should be the case. But I also believe that anti-historical, irresponsible rhetoric, like referring to the U.S. detention facility at Guantanamo Bay as the gulag of our times, endangers the lives of Americans in uniform by fueling the very worst stereotypes of our enemies about this country in the world.
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The gulag, of course, was a Soviet system of forced labor camps. The word is a Russian abbreviation for the term chief administration of camps. In The Gulag Archipelago, the famous book by Alexander Solzhenitsyn, he brought the story of the gulags to the world; 28.7 million people put into forced labor. The death rates in those camps reached their apex in World War II. The total number of prison deaths is impossible to calculate. It ranges from a low end of 3 million people systematically executed or starved to death or worked to death in the gulags to numbers of 10, 12 and even 20 million.
In the book, Gulag: A History, a journalist named Anne Applebaumgate writes that after 1937 the camps ''transformed themselves from indifferently managed prisons in which people died by accident into genuinely deadly camps where workers were deliberately worked to death or murdered.''
It is extraordinary to think of a comparison between a U.S. detention facility, where maybe mistakes have been made and have been made by American personnel, to the systematic death camps of the Soviet empire. It's also peculiar to me that Amnesty International would refer to Guantanamo as the gulag of our times when there is a much better candidate in the Kwan-li-co couldn't find system of concentration camps in North Korea. North Korea is a bona fide Soviet state run by the son of a man who was actually put into power by Stalin. In fact, Kim Jong-il was reportedly born in a training camp in Siberia where his father was groomed for power. But to suggest that, you know, in all of the world the gulag of our times is not the death camps that are the natural progeny of the gulags of the Soviet empire that exist today in North Korea, but that Guantanamo Bay is, that seems to me, as I said, anti-historical, irresponsible and the type of rhetoric that endangers American lives.
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Now, I'm not alone in this. It was former Soviet political prisoner Vladimir Bukowski who characterized your term as ''stupid'' and ''an insult to the memory of millions who perished in Soviet camps.''
With all of that said, and I ask this respectfully, Mr. Pitts, are you or is Amnesty International prepared to retract your statement that the U.S. detention facility at Guantanamo is the gulag of our times, or are you prepared before this hearing to qualify that before this hearing, given the extraordinary record of history of the gulags and the reality of gulags in our times in countries like North Korea?
Chairman SENSENBRENNER. The gentleman's time has expired. The gentlewoman from Florida——
Mr. NADLER. Point of order, Mr. Chairman.
Chairman SENSENBRENNER. The gentleman will state his point of order.
Mr. NADLER. I believe it is improper under our rules to cast aspersions on the integrity of our witnesses, and I would like to give the witness an opportunity to respond to that.
Chairman SENSENBRENNER. First of all, that is not a proper point of order; secondly, I believe the gentleman——
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Mr. NADLER. It's a point of decency.
Chairman SENSENBRENNER. Well, point of decencies are determined other than by rulings of the Chair.
The statements that were made by the gentleman from Indiana were not impugning the integrity of any of the witnesses, including Mr. Pitts, before the Committee; they were value judgments on the part of the gentleman from Indiana, Mr. Pence, on statements that have been made by representatives of Amnesty International other than the witness that is before us.
Mr. NADLER. I would ask that the witness have an opportunity to respond.
Chairman SENSENBRENNER. Without objection, the witness may proceed.
Mr. PITTS. I would like to respond to Mr. Pence's question, and also some of the other statements made that Amnesty has in some way applied amoral equivalency either with the horrendous regime of Stalin, which we were at the forefront of condemning the perpetuation of that system in the Soviet Union in the 1970's and 1980's. And we're not suggesting moral equivalency, Mr. Pence, with China, or North Korea or Iran. Our point is that it's not Amnesty International that is putting the U.S. in this position, and it's not just Amnesty International's reports—although we have issued several reports, hundreds of pages in each, enumerating numerous instances of torture that would break our heart—and I'm prepared to read them if you would like. But as we've heard today, it is the Government's own reports, it is the reams of Government memos that show that we created a black hole, and that the same principles or practices that were at play in the gulag—disappearances, putting people in the gulag, stripping them, beating them—these are practices that people that were there we are now seeing in Guantanamo.
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How can the U.S. have credibility in condemning North Korea as it does, or Iran or Cuba, for arbitrary detentions, for beatings, for torturing people when the same things are going on in Guantanamo? And Secretary Rumsfeld himself approved techniques like forced nudity, like stripping, like hooding people. One of the people hooded in Guantanamo, whose name was Manadel al-Jamadi, we know died from the hooding, the beating. He was one of the ghost detainees that Secretary Rumsfeld personally approved.
And so I don't think it's absurd for Amnesty International to make these points, I think it is absurd for the U.S. to create that legal black hole. And it's time to fill in that legal black hole and shut Guantanamo.
Chairman SENSENBRENNER. The Chair would point out that the activities of the Department of Defense are not within the jurisdiction of the Judiciary Committee, but are within the jurisdiction of the Armed Services Committee, and it is their responsibility to investigate allegations and to conduct oversights over the Department of Defense.
The gentlewoman from Florida, Ms. Wasserman Schultz.
Mr. CONYERS. Would the gentlelady yield to me just briefly?
Ms. WASSERMAN SCHULTZ. Of course.
Mr. CONYERS. I would like to point out that it is the jurisdiction of the Judiciary Committee to consider human rights, civil rights, civil liberties violations. That is not an inappropriate subject for this Committee. As a matter of fact, we have the sole jurisdiction over those concerns.
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I thank the gentlelady for yielding.
Ms. WASSERMAN SCHULTZ. You're welcome.
Mr. Chairman, it is a pleasure to join this Committee. It is a baptism by fire for me as a new Member. And as the gentleman from Arizona stated, sometimes the world does see our version of democracy, warts and all. This proceeding would be one version of that democracy.
I wanted to ask Mr. Zogby if he could discuss the Justice Department's claims that it is not racially profiling, but is profiling by country of passport. For me, because I represent communities in south Florida where we have many Hispanic Americans and many Hispanic immigrants who have darker skin, I think that they would beg to differ on that difference, and that it would be deemed as a difference without distinction. And actually, if I could get my questions out to the three of you, and then I will be quiet so I can hear your answers and not use up my 5 minutes talking.
My other question would be first, Ms. Tapia Ruano, your testimony discussed the secret immigration hearings that are taking place. Can you talk a little bit about why the secrecy is a problem, and why it's important for the American public and the world to know who has been detained? And do we even know how many people and who has been detained and for how long? And in general, between the two of you, if you can discuss what changes you think need to be made to the PATRIOT Act, because obviously that is a product that we would like to bring forward from the results of this hearing so that legal and innocent immigrants, and Americans, who have been unjustly punished or detained can receive justice. Thank you.
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Mr. ZOGBY. Congresswoman, you are right, it is a difference without distinction, bottom line. When all the people brought in in the call-ins, when people from Arab or Muslim countries, there is a single set of characteristics there that constitutes profiling. There was no behavior issue at stake; there was no broader definition of those who were the target audiences. As one law enforcement said, we're looking for a needle in the haystack, and all the Department of Justice keeps doing is adding more hay to the stack.
So there are 160,000 in the field with special registration, about 83,000 registered. Almost 14,000 of them are held deportable, but no terrorist suspects and no information about terrorism resulted from any of this. And so the result is that it was ineffective, created fear, and it was based on crude profiling. It didn't work, and yet it caused irreparable damage to a whole lot of young, innocent people across the country who are now facing dramatic, life-changing decisions because of this program.
Ms. TAPIA RUANO. With regard to these closed hearings, these hearings were held in secret, and you asked what is the problem with that. Well, we believe part of a democratic society which is open, that this is an important concept. Not only were the individuals not allowed to have their family members and also have other individuals there for moral or other support, but family members often didn't even know where these individuals were, the fact that they were being held by the agency, where they were transferred to, the fact that they were facing any possible expulsion from the United States. And that created an enormous amount of anxiety.
What's the solution? Well, eliminate closed hearings with regard to blanket closed hearings, which is what these rules allow, just blanket closed hearings, without taking a look at was it justified, was there any possible reason to sustain the need to have a hearing closed.
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We believe that the act that I mentioned just before, the Civil Liberties Restoration Act, is a solution to that by prohibiting closed hearings except in situations where a judge, after reviewing the individual facts, determines that it is in the interest of national security, or because of sensitive information, or at the choice of the individual detained. Those are rational, legal, fair reasons to have a closed hearing. But blanket closures, without the consent of the parties involved, appears to be abhorrent to our system.
Ms. WASSERMAN SCHULTZ. Mr. Chairman, if I can just also point out and request permission to note that I apologize for being tardy. I arrived at 8:38, and wanted to have my presence noted for the record. And I yield back.
Chairman SENSENBRENNER. And your presence is noted, and your contribution is appreciated.
The gentlelady from Texas Ms. Jackson Lee.
Ms. JACKSON LEE. Thank you very much, Mr. Conyers, for your insight on holding what I think may be one of the more crucial constitutional hearings that we may have in the history of this particular judiciary body.
Let me also thank Mr. Coble and Mr. Scott, as a Member of their Subcommittee, for the number of hearings that have been held, as well recognize the fact that this hearing is being held today.
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I don't want this hearing to center around any one Member, but I do want to relate what I think we're trying to do today, and I really hope that we can do this in a bipartisan manner.
I think you remember, Dr. Zogby, that we did produce a bipartisan PATRIOT Act out of this Committee, with the partnership of the Chairman and the Ranking Member and all of us. Ultimately when the bill went to the floor, it lost all of its bipartisanship and began to become a product of the Majority. In essence, the tyranny of the Majority ruled.
What I'm concerned about is that we're being clouded by our rightness on an issue, refusing to look at how we can fix problems. Reminds me of the time when this country held slaves for 400 years and refused to acknowledge the wrongness of that terrible act, and again, we were ruled by the tyranny of the Majority. Even reflecting upon President Lincoln's decision, history will tell you that it was not for the humanitarian needs of the slaves, but for some other reasons.
Then I cite prior to the attack by the Japanese on Pearl Harbor our refusal to acknowledge the Holocaust that was going on in the 1930's before we entered World War II; again, refusing to acknowledge dark times in our history.
The brutality of the civil rights movement in the 1950's and 1960's, we refused, for a period of time, to acknowledge the dark time in the history of America; just a few years ago when we turned the lights out on the brutality of a million people in Rwanda.
So I think what we have an opportunity to do today, as we all embrace those who lost lives and the families of 9/11, I don't think there was an American of any race, color or creed that did not mourn, did not fall to their knees, did not pray to their person of faith, who they believed in during that time. And so I think where we're going here today and the tone that I've heard by some of my colleagues is again trying to turn the lights out on absolute abuses.
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My question is, one, are there any checks and balances under the PATRIOT Act to even prove one's innocence? That is a general question that I have.
Ms. Ruano, I want to know what have we done by diminishing the powers of the Bureau of Immigration Appeals so that there is no due process? How do Americans understand that by due process being eliminated from that Bureau, you are really beginning to eliminate due process rights for others as well?
Dr. Zogby, I think it's important, a point that you made earlier, that immigration does not equate to terrorism. Tell me, what kind of intimidation is fusing through the Muslim community in the United States and around the world because of that synonym now seems to be coming together?
Amnesty International, I'd appreciate if you would again speak to Guantanamo and as well the specifics of why the sort of elusiveness or unclarity, if I might say, of what Guantanamo means is putting young soldiers in Afghanistan and Iraq in jeopardy of their lives.
And, Ms. Pearlstein, I would ask you as well about—if you would again speak to this whole question of detention, people being picked up randomly. And others may wish to comment on this whole registration of Muslims or Pakistani individuals which generated, I believe, no conviction and no arrests of terrorism.
And lastly let me say under the PATRIOT Act we have Minutemen at the border. That is what we are being driven to at this point. America needs to understand that we're in dark days that is not reflective of our fears of 9/11. And I would appreciate your answers on those questions. I hope we can turn the lights on in this room.
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Chairman SENSENBRENNER. Nineteen seconds left of her 5 minutes.
Mr. ZOGBY. I would like to submit my testimony in full for the record to those questions for my part.
Chairman SENSENBRENNER. Without objection.
Ms. TAPIA RUANO. And I will just say one comment. The concern is, when you abuse noncitizens' due process rights, it is not going to take much more to abuse citizens' rights.
Ms. PEARLSTEIN. If I could just also submit for the record the recent report of the Human Rights First called Behind the Wire——
Chairman SENSENBRENNER. Without objection.
[The information referred to can be found in the Appendix.]
Ms. PEARLSTEIN. And also a recent report called Getting to Ground Truth, which responds, I think, to the questions——
Chairman SENSENBRENNER. Without objection.
[The information referred to can be found in the Appendix.]
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Mr. PITTS. And I will submit our report on the specifics of Guantanamo. But I want to point out briefly that not just Amnesty, but academic institutions, Rand, International Institute for Strategic Studies, our own State Department have noted that terrorism is on the rise. And I think that's more than just correlation, it's causation.
Chairman SENSENBRENNER. Without objection.
[The information referred to can be found in the Appendix.]
Mr. CONYERS. Mr. Chairman, I would ask that the gentlelady from Texas be given enough time to have brief remarks from any of the witnesses before we close down. She is the last——
Chairman SENSENBRENNER. How much time does the gentleman from Michigan request that the gentlewoman from Texas be granted?
Mr. CONYERS. Four minutes, 1 minute for each of the witnesses.
Chairman SENSENBRENNER. Is there objection to the request of the gentleman from Michigan to give each—an objection is heard.
Mr. CONYERS. Mr. Chairman, I have a list of documents that I ask unanimous consent to submit to the record.
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Chairman SENSENBRENNER. Without objection.
[The information referred to can be found in the Appendix.]
Chairman SENSENBRENNER. The Chair now recognizes himself.
First, the Chair would like to thank all the witnesses for coming and appearing, and particularly preparing your testimony on short notice.
Let me say that the purpose for which this hearing was called and the scope of the hearing was stated in a letter that was submitted to me, signed by the Democratic Members, which was the reauthorization of the USA PATRIOT Act. I have sat here listening very patiently to the testimony and the answers to the questions, and much of what has been stated is not relevant to the 16 sections of the USA PATRIOT Act which were sunsetted when the law was enacted in October of 2001.
One of the things that people who are opposed to the PATRIOT Act have been doing is stating that the PATRIOT Act was responsible for a whole host of frustrations or objections to Administration policy. This hearing confirmed that fact, that the PATRIOT Act is being used as a buzzword for people who have very broad-brush objections.
I think that when Congress debates the reauthorization of the PATRIOT Act, we ought to stick to the subject, and that subject is the 16 provisions of the PATRIOT Act which we must consider and decide whether to reauthorize, whether to lapse or whether to amend.
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The PATRIOT Act has nothing to do with Guantanamo; the PATRIOT Act has nothing to do with enemy combatants; the PATRIOT Act has nothing to do with indefinite detentions. Those were provisions of other sections of the law, many of which occurred prior to the enactment of the PATRIOT Act in October of 2001.
The so-called Creppy memorandum, which had a blanket closure of immigration proceedings, was issued before the PATRIOT Act was enacted, and the Deputy Attorney General testified earlier this week that it's no longer being followed.
And some of the testimony related to provisions of the PATRIOT Act that were not sunsetted, and this Committee put the sunset on provisions of the law which actually increased the powers of law enforcement, but did not put the sunset on those provisions of the law which restated the powers that law enforcement had had prior to October of 2001.
I think particularly irresponsible and indicative of the broad-brush accusations of the PATRIOT Act was what I just heard, saying the PATRIOT Act has resulted in Minutemen being on the border. That's not true, and that's irresponsible, and I think anybody who knows what is going on——
Ms. JACKSON LEE. Will the gentleman yield?
Chairman SENSENBRENNER. No, I will not yield—will see that fact.
Let me say that I think this hearing very, very clearly shows what the opponents of the PATRIOT Act are doing. They will talk about practically everything but what's in the PATRIOT Act and what this Committee is considering. The only really relevant testimony that I heard was from Mr. Pitts, relative to section 215 of the PATRIOT Act that said that librarians have been receiving all kinds of questions from law enforcement. I'd like to ask you, Mr. Pitts, to submit for the record the names of the librarians that have received actual section 215 orders from the FISA Court to produce business records, and we will give you a week to put that in the record.
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[The information referred to can be found in the Appendix.]
Chairman SENSENBRENNER. So thank you all for coming today. I thank the Members——
Ms. JACKSON LEE. Will the gentleman yield?
Mr. NADLER. Mr. Chairman.
Ms. JACKSON LEE. Will the gentleman yield?
Chairman SENSENBRENNER. And the Committee is adjourned.
[Whereupon, at 10:23 a.m., the Committee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN, AND RANKING MEMBER, COMMITTEE ON THE JUDICIARY
There are few issues that are more important to this Committee or this Congress than the PATRIOT Act and the war against terror. This not only affects the rights and privacy of every American, but impacts the extent to which our nation is able to hold itself out as a beacon of liberty as we advocate for democracy around the world.
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For many of us, this process of hearings is not merely about whether we should extend 16 expiring provisions of the USA PATRIOT Act; it is about the manner in which our government uses its legal authority to prosecute the war against terror, both domestically and abroad. As we will hear from our witnesses today, those authorities have been abused.
We will learn from Amnesty International about the routine torture and degradation of detainees in American-run prisons that clearly violate American and international law. Both then-White House Counsel Gonzales and the Department of Justice conspired to create an end-run around the international and U.S. laws that criminalize that sort of behavior. While the Justice Department has supposedly reversed those opinions, it still refuses to charge those in its jurisdiction.
We will also receive testimony concerning the illegal detention and mistreatment of individuals at Guantanamo Bay. A federal court has found their detention and denial of legal process to be unconstitutional under the Fifth Amendment and illegal. And after the recent confirmation that jailers there desecrated the Koran, it's clearly time for the military to shut the Guantanamo facility down.
We will also learn about the abuse of the immigration system to unjustifiably detain and harass men of Middle Eastern descent. Our Justice Department held over 1,000 people in the wake of 9/11, and the Inspector General has found the detentions to violate the law. But no one has been punished, and nothing has been done to ensure it doesn't happen again.
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Finally, we will receive testimony concerning the failure of our Administration's racial profiling tactics. Not only are tactics like these immoral, they have been proven to be completely useless in the war on terror. For example, our government's registration of 80,000 Middle Eastern men did nothing but create a deportation nightmare for families who had long been upstanding members of our communities. And not a single terrorist was found. Let me repeat that—not a single terrorist was found.
Yesterday, the president announced with much fanfare that we need to not only reauthorize but expand the PATRIOT Act. But rather than making us safer, the abuses and excesses of our war against terrorism are actually tarnishing our nation's reputation and making us less safe. The testimony we are receiving today—and introducing into the record—will make that point abundantly clear.
PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
RESPONSE BY AMNESTY INTERNATIONAL TO REQUEST FOR ADDITIONAL INFORMATION REQUESTED BY CHAIRMAN SENSENBRENNER
Next Hearing Segment(2)
(Footnote 1 return)
Amnesty International is a grassroots organization with 1.8 million members worldwide working to promote and defend human rights. For information, contact Ms. Alex Arriaga or Ms. Jumana Musa at 202–544–0200, or visit www.aiusa.org.