then section 102 prohibits anybody within the jurisdiction of the United States to knowingly provide material support or resources to that organization, which is by definition a terrorist organization that engages in activity that affects the national security of the United States.

Mr. SCOTT. And if they are, in fact, not involved, but the President thought they were involved, when do they have the opportunity to be heard to get off the list?

Mr. SHENEFIELD. If the President is consistently wrong, he is not going to last in office long.

Mr. SCOTT. He can put some politically unpopular people on the list and wouldn't be adversely hurt one bit and would probably be helped, when in fact they are not engaged.

Mr. SHENEFIELD. The question is whether you have no confidence in the Congress' ability to right that wrong. That is the crucial question.

Mr. SCOTT. That is why we have courts to protect people's rights. You don't subject rights to a political up-or-down vote.

Ms. LANSNER. While this may not totally satisfy you, there is a 2-year limit, so that after 2 years, the designation does disappear unless it is again proposed.

Mr. JAHSHAN. In addition to that, what I think the President is trying to do, for example, is that if NAAA Foundation is contributing to a certain humanitarian function in the West Bank or Lebanon that is affiliated somehow, directly or indirectly, with one of the groups that appears on that list, I am required now to get a license from Treasury to prove that the $100 that I am sending at the end of the month is not going directly or indirectly-and here comes the issue of fungibility-to any type of terrorist activity.

So the burden of proof is placed on me as an American citizen, exercising my constitutionally protected rights to donate and associate with anybody I care to associate with, to produce not only political information, but also bring in the budget, the accounting records, of that group to show where the $100 went.

What kind of crazy group anywhere in the world is going to show up in an American court and produce its books to prove that I am sending them $100 legally?

MS. AL-HIBRI. I do not take much comfort in the 2-year sunset provision, because it can be renewed again several times and could go on forever until the political situation changes and somebody looks more favorably on a group that has been viewed disfavorably. So the problem that you are raising, I think is still there, regardless of that provision.

Mr. SCOTT. Let me ask another question. For those who support the bill, could you comment on the right to due process, if the powers that we think someone who is a noncitizen, if they think they are involved in criminal terrorist activity, when, in fact they are not; in that situation, when would the person have an opportunity to be heard to defend themselves in one of these ex parte proceedings?

Mr. SHENEFIELD. Are you referring to title VI?

Mr. SCOTT. The deportation. I don't know what number it is.

Mr. SHENEFIELD. The special removal proceeding provides for a hearing before a Federal district judge for the precise purpose of defending himself.

Mr. SCOTT. Now, what about this evidence that is ex parte in chambers?

Mr. SHENEFIELD. If it is sensitive information that cannot be revealed, the bill provides for, in the case of lawful permanent residents, a special panel of attorneys to try to preserve as much as possible of the subject's right to challenge.

I suggested in my testimony that that be broadened to go beyond permanent resident aliens. But at the end of the day, the uncomfortable fact is that there might be very valuable information that is dispositive on the issue that would be immensely persuasive to the Federal district judge that you simply can't make public.

Mr. SCOTT. If it looks dispositive, but it is not accurate, and the person if presented with the evidence could explain it away, that he was not the one, it was a mistaken identity, or it was somebody else, or the person is flat-out lying, and I can prove it because they were not even there, if you have dispositive evidence to contradict. that, you don't get a chance in these ex parte proceedings to bring it up.

Mr. SHENEFIELD. My view is, my belief is, that you are talking about a one-in-a-million situation. And you cannot build a system of enforcement based on chances that are about one in a million. Mr. SCOTT. Yes, ma'am?

MS. AL-HIBRI. At a minimum, although I am very unhappy with this provision, I don't see why the accused could not choose an attorney who has security clearance or choose one of those on the panel; or even ask for expedited clearance for her counsel.

All of these kinds of considerations would give the accused some input into who is going to represent her. But at the same time would preserve the security interests.

I don't see why this is not part of this proposal at minimum, even though I am critical of it.

Ms. LANSNER. If I may, I think that we have to put this in context. As Mr. Shenefield has just said, in the majority-overwhelming majority of circumstances these provisions of H.R. 1710 are not even going to come into play.

You are only going on to have these provisions come into play when there is classified information that is necessary in order to prove the deportation case.

This bill is providing for those exceptional circumstances where there was no prior provision for a deportation hearing because there was no way of having the classified information come into

court.

You have a long elaborate system here which really provides for a number of safeguards to the defendant, including the right to a summary of the classified information, and if the summary is insufficient to enable the preparation of defense, there will be no deportation hearing at all based upon that information, if they cannot give, unless the judge finds and, it is a very narrow exception, that the continued presence of the alien and the provision of the summary would likely cause serious and irreparable harm to the national security or death or seriously bodily injury to the person. So

you are talking about a very narrow exception within an already very narrow set of circumstances.

Mr. SCOTT. Mr. Chairman, I know my amount of time has expired.

Mr. HYDE. I thank the gentleman.

And the gentleman from Georgia, Mr. Barr.

Mr. BARR. Thank you, Mr. Chairman.

Mr. Shenefield, I would like to just ask you kind of a general question, and then I start with you simply because you have addressed some of the issues that I have been paying particular attention to in your written testimony, and the other panelists may wish to comment also.

But, the two most recent acts of what I think all of us would view as terrorist acts, the World Trade Center bombing and the Oklahoma City bombing most recently, have been or will be prosecuted under existing laws that we have, and at least in the case of the World Trade Center bombing, since it has already pretty much concluded, under existing regulations and policy decisions of our Government.

In that case, the perpetrators were apprehended very quickly, based on phenomenal and probably very lucky law enforcement investigative tools and expertise that we have. And the case went through the judicial system relatively speedily with the appropriate conclusion, I think.

In the case of Oklahoma, although we are at a much earlier stage, we certainly seem to be on track in terms of gathering information and evidence, already having made a couple of arrests. The Government has already indicated to the court that they are for the process of pulling together a much more comprehensive charging document and seeking some additional time within which to obtain the indictment, so it seems to be pretty much on track.

Given the fact—and the Deputy Attorney General yesterday in answer to the same line of questioning indicated that there was nothing that the administration feared or had concluded would not allow them, they anticipated certainly-that would not allow them to prosecute this case, the Oklahoma City case successfully.

That being the case, my point is our Government seems to have fairly strong and clearly adequate tools to address at least from an investigative and prosecutorial standpoint, terrorist activities.

Why, then, other than making it easier for the Government to do certain things, why then do we need the legislation that really if you looked just at some of the definitions in it is very, very broad and even though—and I don't use this term disparagingly, you almost cavalierly dismiss the posse comitatus provisions in the bill. I think they are a little more broad than you seem to indicate, as well as some of the wiretap legislation.

Why is it that we need, as opposed to making it easier for law enforcement, is there any case that could be made that we really need these additional tools?

Mr. SHENEFIELD. I think it is a perfectly appropriate question and a difficult one for someone outside the Government who is not privy to secret information really to answer persuasively to you, I think. But it seems that if you take the electronic surveillance authorities given in the statute, that each one taken on its own basis

for the purpose for which it is apparently intended, makes some

sense.

Take the multiple point wiretap or electronic surveillance. It doesn't take a lot of imagination to see why that would be extremely useful for investigation and detection of terrorist activity. In the current

Mr. BARR. But even that would be of somewhat limited use. You never know which phones the person intent on evading surveillance would be using.

Mr. SHENEFIELD. Unless you have established enough physical surveillance to know that there is a pattern.

Mr. BARR. In which case, under existing laws and procedures, a good prosecutor would be able to obtain an appropriate warrant even under existing procedures.

Mr. SHENEFIELD. But a judge might be pleased to receive this application instead of the one under current law, because this application would be limited to conversations by the subject himself, whereas the one under current law is valid for any conversation on that phone, regardless of who it is.

So in a sense, the minimization procedures in this proposal are greater that under current law and, therefore, more protective of civil liberties than exist now.

Mr. BARR. I am not sure I agree with that. But aside just from that one particular aspect of the bill, can you make the case as to why we need an expansion of Federal jurisdiction?

Mr. SHENEFIELD. It seems to me the way I would think of it is in dealing with terrorist activity, you are dealing with a phenomenon that is very largely unpredictable, hard to define in advance, comes in all different shapes and sizes, and conventional law enforcement activity may not be effective to deal with those kinds of problems.

I believe from what I read in the press, that the World Trade Center arrests were as much a result of carelessness of various perpetrators as the result of good detection technique.

Mr. BARR. But the same could be said of virtually any criminal case. The reason we are able to prosecute any case is that somewhere along the line, the perpetrators make mistakes.

Mr. SHENEFIELD. And the point I would make, particularly where terrorism is concerned, maybe more than most other kinds of activity of a criminal nature, prevention needs to be the watch word of the Government. So I would err on the side of effective prevention. And it seems to me that standard law enforcement techniques. based on criminal conduct may not go far enough for the prevention purposes that I would see as useful here. That is my mindset in approaching this kind of a set of proposals.

Mr. BARR. Thank you, Mr. Chairman. I know that the time has expired but if the other panelists would care to respond, would that be OK?

Mr. HYDE. Without objection, the gentleman is granted an additional minute or 2 minutes.

Mr. BARR. Thank you, Mr. Chairman.

Mr. HYDE. Or such time as the gentleman may consume in answering.

Mr. JAHSHAN. Thank you. I think terrorism is a continuously changing and emerging practice involving all kinds of technology associated with it. There is no doubt in my mind that refining or expanding Federal jurisdiction to account for that is justified. So we have no problem with that part of the bill that deals with the technological aspects of terrorism and how to combat that.

However, what I think we ended up with here, when you look at the history of this piece of legislation in its various versions, is a shopping list or dream list by the law enforcement agencies for things that they haven't been able to get together in one bill since the inception of this Republic.

And it is very important to distinguish between what is needed to account for some specific developments in terrorism techniques and the ability of law enforcement agencies to face or respond effectively to these changes, and between things that I would consider a wish list whereby we are making it easier for certain Government agencies to respond to these types of situations at the expense of individual rights.

Mr. BARR. Thank you, Mr. Chairman.

Mr. CONYERS [presiding]. You are welcome.

Mr. FRANK. Mr. Chairman, would amendments be in order with you in the chair?

Mr. CONYERS. Of all bills for me to be ending up being asked to be temporary chairman, I cannot believe this is happening.

Mr. FRANK. If we have Republican, we have the gentleman from Georgia

Ms. LOFGREN. Mr. Chairman. I have an amendment at the desk. Mr. CONYERS. Mr. Frank.

Mr. FRANK. Thank you, Mr. Chairman. Let me begin with Mr. Shenefield.

The objection you had to giving the court the right to review the designation, would that also extend to the designation as to an individual on page 93 that specifically says that the determination by the Secretary of State or the Attorney General that an alien is a representative of a terrorist organization shall be controlling and shall not be subject to review by any court. Would you similarly exempt the designation of an individual who presumably is here as an alien in the United States?

Mr. SHENEFIELD. Well, my philosophical view doesn't change. It is hard for courts to engage in that kind of examination. But where you are asking of a particular individual whether he fits a particular profile. That is more like

Mr. FRANK. The examination here presumably-whether or notthe status of the organization is not at issue here. That would not be raised. But this is a question whether someone in the United States has that role and it is not a Presidential determination, it is the Secretary of State or Attorney General. I would say I find the case weak in both points, but particularly weak here because someone is an alien.

I agree that there are different constitutional standards but I don't like the notion of human beings in the United States not subject to some basic protections and I do not understand why you would not allow a court, what the policy reasons would be for not allowing somebody to go to court.