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Public Statements

Hearing of the Senate Committee on the Judiciary

Location: Washington, DC

Federal News Service


SEN. MIKE DEWINE (R-OH): Mr. Chairman, I just want to thank you very much for holding this hearing. I'm looking forward to hearing the testimony from the witnesses.

And I think one of the things that we want to look at today and keep in mind is how of the complaints that we hear has to do with the Patriot Act and how much has to do with other things. And I think that's one of the things that we -- we need to talk about today and focus on.

I also am anxious to hear, frankly, from people who are in the field. Mr. McNulty has been in the field now for a few years now and has the opportunity to deal directly with the Patriot Act. I've had the opportunity to talk with two U.S. attorneys in Ohio and they've had the opportunity to implement the Patriot Act as well as Mr. McNulty. And so I think people like the U.S. attorneys who have to deal with this on a daily basis have a lot to tell us about how this has actually worked. We -- we were involved in writing this Patriot Act with suggestions from the administration, but to get the reports back about how it actually works, where it has been helpful, maybe where it has not worked as well as we thought it was going to work, is the type of testimony that this committee needs and will help inform our opinion as we try to make a determination about where this law needs to be changed in the future.

So again, Mr. Chairman, I thank you for holding this hearing today, and we look forward to the testimony.


SEN. MIKE DEWINE (R-OH): Thank you, Mr. Chairman.

Mr. McNulty and Mr. Fitzgerald, you both are on the front line in the war on terrorism, but you also run offices and run the gamut of criminal prosecution. Since September 11th, we've asked the FBI really to do kind of a sea change in how they approach things. And they're obviously doing a lot more preventive work in regard to terrorism.

When the FBI testifies here, I ask them, "What are you doing less off?" And so I'm going to ask you, what are you doing less of? What are you prosecuting less of? If I looked at your office records for the last couple of years, what do I see less of? What are you prosecuting, Mr. McNulty, less of today than you were a couple of years ago?

MR. MCNULTY: Well, I don't know if the statistics would actually bear this out --

SEN. DEWINE: Anecdotally will be fine.

MR. MCNULTY: Yeah, my sense is, of course, that we struggle more now to get the resources we need in, generally speaking, the white- collar area. I think if you talk to my colleagues around the country, they would acknowledge that with the FBI's first priority on terrorism and the considerable effort that each field office is making to do all they can to try to detect and disrupt and to prevent future acts, that we've had to try to be a little more innovative when it comes to finding investigative resources for the wide range of frauds that may have been unable to have resources for in the past.

I work closely with the Washington field office of the FBI. They have additional burdens. When the anthrax attacks occurred, that office was diverted in its resources to try to deal with that investigation. So these are real problems that each SAC struggles with.

I might add, by the way, that we are meeting as a group this week together, the special agents in charge and all the U.S. attorneys, to work through these very questions to try to find how we can do more with sometimes less in certain categories for investigations.

SEN. DEWINE: What about drugs?

MR. MCNULTY: Drugs -- we have not seen a real problem there. Now, the FBI's role in drugs has been largely through the OCDETF program in the past, continues to be. I mean, they've had certainly a substantial number of investigations in drug trafficking activity that has not only been in OCDETF, but that's been a key focus.

And because the DEA's commitment there and the task forces with local law enforcement, I think that the director of the FBI would say that he has probably fewer agents today doing drug investigations. But I haven't seen, in the eastern district of Virginia, that be a problem.

SEN. DEWINE: You're not seeing that change?

MR. MCNULTY: I'm not seeing a change in the number of our cases. We have more drug cases now than we had before 9/11.

SEN. DEWINE: Really?

MR. MCNULTY: Yes. Part of it goes back to just an effort by the prosecutors and other resources to lean forward even more and make that a priority.

SEN. DEWINE: Mr. Fitzgerald.

MR. FITZGERALD: I have not seen a decrease in our case load within the office. We did receive additional resources for terrorism. I think our case load in the year after 9/11 went up about 50 percent. So we have not seen a change in volume.

I can say, working with the FBI, that the FBI has reallocated resources to terrorism. It has not hurt the drug area because they've done it smartly. As Paul said, they work through OCDETF and they work through HIDTA, which are task force programs, and they've made it an emphasis to make sure that where the FBI agents are participating, it's because they're adding value and letting DEA take more of a role. So in the drug area and the violent crime area, the FBI has scaled back smartly.

In the white-collar area, it's still one of the top priorities of the office. And it's the same with the FBI, so we get their attention to focus on the biggest cases we have. The concern I have is the medium-level cases in white collar, not just because some resources have to go to terrorism, but we've taken some of their best agents in the white-collar area. And because we need to go after terrorism financing, I think it's a smart move, because the best way to fight terrorism is to dry up the money. We do have -- we want to make sure we keep up the experience level.

Separate from that, there's a demographic, I think, in lots of law enforcement agencies where there are a lot of agents who have had a lot of experience in white-collar crime who are coming of age to retirement. And we lose those people to the private sector. There's a brain drain because they can't draw a second pension.

So we're seeing that -- irrespective of 9/11, we're seeing that in IRS and other agencies where we're losing lots of experienced white-collar investigators. So that's an issue out there. But, by and large, I think, the FBI is dedicating lots more resources to terrorism. They have done it smartly and efficiently, particularly in the drug area.

We are still going after white-collar cases, in fact, harder. But I think, long term, we should look past 9/11 and look at the demographic of the brain drain on all law enforcement agencies in the white-collar area.

SEN. DEWINE: Mr. McNulty, Mr. Fitzgerald, what's your total -- and I'll move on -- but what's your total number of assistant U.S. attorneys? How does that compare, the change in the last two years?

MR. MCNULTY: Well, I've had a substantial growth in the eastern district, largely as a result of the terrorism resources. But I have 120 attorneys and probably another 30 or more special assistant United States attorneys. And we've grown about 25 percent as an office in the last two years because of increased positions for terrorism prosecution and some gun positions and cyber-crime positions.

SEN. DEWINE: Mr. Fitzgerald.

MR. FITZGERALD: In Chicago we hadn't had growth basically in about a decade. In the last year we've grown by 11 assistants, I think, to about 149. We've picked up nine assistants for terrorism and I think two for cyber-crime and an additional gun position.

SEN. DEWINE: You both have described some of the benefits of the new Patriot Act. You describe how it has worked effectively. Could you describe for us any area that it's not worked or any area that needs improved?

MR. FITZGERALD: I think it needs to be just better understood by the public. So much of what people are angry about doesn't concern the Patriot Act or doesn't involve it. Sometimes you hear about the expression "If a tree falls in the wood and no one hears it." With the Patriot Act, a tree hasn't fallen but lots of people hear it loudly. And I mean that people legitimately have concerns about the Patriot Act, about parts of it that are simply not there.

I think -- I've been trying in Illinois to meet with community forums and educate people about what the act does and does not do, because there's a great misapprehension there. I think a lot of what people are concerned about, they shouldn't be concerned about, but nonetheless they are. But we need to address that.

SEN. DEWINE: Mr. McNulty.

MR. MCNULTY: Nothing comes to mind that is a problem. I certainly agree strongly with Pat's point about the disconnect between much of the rhetoric we hear and what we're actually doing. And the use of the Patriot Act provisions, so many of the things that are talked about aren't even within the scope of the Patriot Act. But nothing comes to mind as being a weakness or a problem that we've run into in the act.

SEN. DEWINE: Mr. Fitzgerald, you mean none of your assistants come to you and ever say, "I can't understand why these senators or congressmen didn't get it, why they didn't write this a little differently"? That's kind of hard for me to believe.


SEN. DEWINE: I think I used to do that when I was a lowly county prosecutor. I wondered why the stupid state legislature didn't write the law differently. And I know I did that.

MR. FITZGERALD: They do come to me and say, "Why don't they fix this law?" But I don't think, because it's such a patchwork quilt, people can figure out which law comes to the Patriot Act and which doesn't. So they say, "Here's what ought to be fixed or here's what we need." But they're not going back saying, "If you look at Section 3 such-and-such in the Patriot Act, why didn't they change this comma?"

There are some fixes that may be needed to some statutes that are modified by the Patriot Act that may need further modification. But they're not coming and complaining about the Patriot Act (as a problem?).

SEN. DEWINE: So you don't have any advice for us, I guess.

MR. FITZGERALD: On the Patriot Act or on terrorism laws?

SEN. DEWINE: You have the opportunity today to talk about anything you want to.

MR. FITZGERALD: I just think that we need to look at terrorism financing, because those cases are hard to prosecute in a way that money laundering is hard to prosecute squared, because in money laundering cases you need to prove that the person laundering the money knew that it was going to a specific crime, such as drugs.

In terrorism financing cases, when people move money overseas and then that money is used for a violent act, you often not only have to prove that the person facilitating the movement of money knew about the crime committed, but you may or may not have to deal in court with the defenses of the person overseas, such as if they were a freedom fighter who thought they were authorized by law to fight.

There are many issues like that that make terrorism financing cases harder to prosecute than even money laundering. And that's because they make us prove that the person has imported terrorism. It is hard to prosecute, under the current law, someone who sends money overseas just to support violence without putting the terrorism label on it.

There may be areas of conflict overseas where there's violence going on where our country may or may not take a position, but we shouldn't have private citizens on our soil funding the fighting, particularly since some of those fighters may turn out to be al Qaeda fighters who may be fighting in a regional conflict today and will be coming after us tomorrow.

So I think there is a need to look at terrorism financing laws to see whether there ought to be a law against just supporting violence, not in a terrorism context, not from the terrorism penalties, but allowing us to stop people from funding violence from our soil as private citizens that can lead to death overseas and could also lead to the further training of al Qaeda.

SEN. HATCH: Senator, your time is up.

SEN. DEWINE: Thank you very much.

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