[Senate Hearing 107-610]
[From the U.S. Government Publishing Office]
S. Hrg. 107-610
PROTECTING CONSTITUTIONAL FREEDOMS IN THE FACE OF TERRORISM
=======================================================================
HEARING
before the
SUBCOMMITTEE ON THE CONSTITUTION, FEDERALISM, AND PROPERTY RIGHTS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
__________
OCTOBER 3, 2001
__________
Serial No. J-107-41
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin JON KYL, Arizona
CHARLES E. SCHUMER, New York MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina MITCH McCONNELL, Kentucky
Bruce A. Cohen, Majority Chief Counsel and Staff Director
Sharon Prost, Minority Chief Counsel
Makan Delrahim, Minority Staff Director
------
Subcommittee on the Constitution, Federalism, and Property Rights
RUSSELL D. FEINGOLD, Wisconsin, Chairman
PATRICK J. LEAHY, Vermont STROM THURMOND, South Carolina
EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah
CHARLES E. SCHUMER, New York JON KYL, Arizona
RICHARD J. DURBIN, Illinois MITCH McCONNELL, Kentucky
Robert Schiff, Majority Chief Counsel
Garry Malphrus, Minority Chief Counsel
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Cantwell, Hon. Maria, a U.S. Senator from the State of Washington 68
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 8
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 1
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 3
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona.......... 75
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 14
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 4
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 63
Thurmond, Hon. Strom, a U.S. Senator from the State of South
Carolina....................................................... 80
WITNESSES
Berman, Jerry, Executive Director, Center for Democracy and
Technology, Washington, D.C.................................... 26
Cole, David, Professor of Law, Georgetown University Law Center,
Washington, D.C................................................ 43
Halperin, Morton H., Chair, Advisory Board, Center for National
Security Studies, and Senior Fellow, Council on Foreign
Relations, Washington, D.C..................................... 17
Kmiec, Douglas W., Dean and St. Thomas More Professor of Law,
Columbus School of Law, Catholic University of America,
Washington, D.C................................................ 35
Kris, David S., Associate Deputy Attorney General, Department of
Justice, Washington, D.C....................................... 9
McGinnis, John O., Professor of Law, Benjamin N. Cardozo School
of Law, Yeshiva University, New York, New York................. 21
Norquist, Grover, President, Americans for Tax Reform,
Washington, D.C................................................ 10
QUESTIONS
Questions submitted by Senator Sessions for David Kris........... 67
SUBMISSIONS FOR THE RECORD
Department of Justice, Office of Legislative Affairs, Daniel J.
Bryant, Assistant Attorney General, Washington, D.C., letter... 82
Federal Law Enforcement Officers Association, Richard J. Gallo,
President, Washington, D.C., letter............................ 70
Fraternal Order of Police, Steve Young, President, Washington,
D.C., letter................................................... 70
German American Education Fund, Elsbeth M. Seewald, Chairman,
Pleasant Prairie, Wisconsin, letter and attachment............. 71
Jacobs, Arthur D., Major, USAF Retired, Tempe, Arizona, letter
and attachment................................................. 73
Meese, Edwin, III, Washington, D.C., letter...................... 77
National District Attorneys Association, Kevin P. Meenan,
President, letter.............................................. 77
Southeastern Legal Foundation, Inc., Phil Kent, President,
Atlanta, Georgia, statement.................................... 78
Thornburgh, Dick, Washington, D.C., letter....................... 80
PROTECTING CONSTITUTIONAL FREEDOMS IN THE FACE OF TERRORISM
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WEDNESDAY, OCTOBER 3, 2001
United States Senate,
Subcommittee on the Constitution, Federalism, and Property
Rights, Committee on the Judiciary,
Washington, D.C.
The Subcommittee met, pursuant to notice, at 9:34 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Russell D.
Feingold, chairman of the Subcommittee, presiding.
Present: Senators Feingold, Durbin, Hatch, Specter, and
Sessions.
OPENING STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR
FROM THE STATE OF WISCONSIN
Chairman Feingold. I will call the Subcommittee to order,
and I would like to welcome all of you to this hearing of the
Subcommittee on the Constitution on ``Protecting Constitutional
Freedoms in the Face of Terrorism.'' We have a very
distinguished panel of witnesses here this morning and I very
much appreciate your willingness to speak with us, especially
on such short notice.
Almost as soon as the attacks on September 11 ended, public
discussion turned to two issues: how the United States will
respond to these terrorist attacks, and how we can protect
ourselves against future attacks. And almost immediately,
discussion of that second issue raised the question of how our
efforts to prevent terrorism will affect the civil liberties
enjoyed by all Americans as a part of our constitutional
birthright.
I was greatly encouraged by the words of Senator George
Allen, who represents one of the States struck by terrorism, on
the day after the attacks. He said on that day, ``We must make
sure that as we learn the facts, we do not allow these attacks
to succeed in tempting us in any way to diminish what makes us
a great Nation. And what makes us a great Nation is that this
is a country that understands that people have God-given rights
and liberties. And we cannot, in our efforts to bring justice,
diminish those liberties.''
I agree with Senator Allen, and I believe that one of the
most important duties of this Congress in responding to the
terrible events of September 11 is to protect civil liberties
which derive, of course, from our Constitution. Now, that is
not to say that we cannot enact more measures to strengthen law
enforcement. There are many things that we can do to assist the
Department of Justice in its mission to catch those who helped
the terrorists and prevent future attacks. We can, and we will,
give the FBI new and better tools, but we must also make sure
that the new tools don't become instruments of abuse.
There is no doubt that if we lived in a police state, it
would be easier to catch terrorists. If we lived in a country
where the police were allowed to search your home at any time
for any reason, if we lived in a country where the government
is entitled to open your mail and eavesdrop on your phone
conversations or intercept your e-mail communications, if we
lived in a country where people could be held in jail
indefinitely based on what they write or think or based on a
mere suspicion that they are up to no good, the Government
would probably discover and arrest more terrorists or would-be
terrorists, just as it would find more lawbreakers generally.
But I think we can all agree that that wouldn't be a
country in which we would want to live and it wouldn't be a
country for which we could, in good conscience, ask our young
people to fight and die. In short, that country wouldn't be
America.
In a recent L.A. Times article, Professor Erwin
Chemerinsky, a distinguished law professor at the University of
Southern California, put the challenge before us squarely:
``Some loss of freedom may be necessary to ensure security, but
not every sacrifice of liberty is warranted. For example,
people accept more thorough searches at airports even though it
means a loss of privacy, but strip searches and body cavity
searches would clearly be unacceptable. The central question
must be what rights need to be sacrificed, under what
circumstances, and for what gain.''
I think it is important to remember that the Constitution
was written in 1789 by men who had recently won the
Revolutionary War. They did not live in comfortable and easy
times of hypothetical enemies. They wrote the Constitution and
the Bill of Rights to protect individual liberties in times of
war as well as times of peace.
There have been periods in our Nation's history when civil
liberties have taken a back seat to what appeared at the time
to be the legitimate exigencies of war. Our national
consciousness still bears the stain and the scars of those
events: the Alien and Sedition Acts, the suspension of habeas
corpus during the Civil War, the internment of Japanese
Americans during World War II and the injustices perpetrated
against German Americans and Italian Americans, the black-
listing of supposed communist sympathizers during the McCarthy
era, and the surveillance and harassment of anti-war
protesters, including Dr. Martin Luther King, Jr., during the
Vietnam War.
We must not allow this piece of our past to become
prologue. Preserving our freedom is the reason we are now
engaged in this new war on terrorism. We will lose that war
without a shot being fired if we sacrifice the liberties of the
American people in the belief that by doing so we will stop the
terrorists.
That is why this exercise of considering the
administration's proposed legislation and fine-tuning it to
minimize the infringement of civil liberties is so crucial. And
this is a job that only the Congress can do. We cannot simply
rely on the Supreme Court to protect us from laws that
sacrifice our freedoms. We took an oath to support and defend
the Constitution of the United States, and I hope that our
witnesses today will assist us in our duty to be true to that
oath.
Now, I would like to call on Senator Hatch, the ranking
member of the full committee, after which Senator Sessions, who
is going to represent the subcommittee ranking member, Senator
Thurmond, today, will make brief remarks as well.
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
OF UTAH
Senator Hatch. Thank you, Mr. Chairman.
We are happy to welcome all you witnesses here today. This
is an important hearing and I will be very interested in what
you all have to say. I can only stay for a short period, but I
will read every statement and pay attention to them.
I am very pleased that the Chairman, Chairman Leahy, and I
and others are working very closely with the Justice Department
and with the White House to try and come up with
constitutionally sound approaches here that will help protect
our country. I think we are very close to agreement.
I think if we can bring this agreement about, it will be
one that most everybody who is reasonable should support and
will be in the best interests of the country and the best
interests of the protection of our citizens, something that I
have been arguing needs to have been done long before this
particular time and before September 11.
Mr. Chairman, as you know, we have collectively committed
to a war unlike any war in the history of this country. It is
different because a substantial part of this war must be fought
on our own soil, and this is not a circumstance of our own
choosing. The enemy has brought this war to us, but we must not
flinch from acknowledging the fact that because this is a
different kind of a war, it is a war that will require
different kinds of weapons and different kinds of tactics.
Mr. Chairman, let me also thank you for holding this
hearing to educate the public and the committee on the
importance of our constitutional rights.
The Attorney General has communicated to us and in no
uncertain terms has told us that he does not currently have all
of the tools necessary to fight this war. Over the last several
weeks, I and several members of this committee, as I have said,
have undertaken a microscopic review of the anti-terrorism
proposal submitted by the administration. We have engaged in
round-the-clock negotiations over the final shape of this
legislation. Everyone concerned is extremely concerned about
the constitutional aspects and the constitutional
considerations that are essential to making this legislation
what it should be.
During the course of this review, I have become quite
familiar with the details of this proposal, as you can imagine.
I would like to congratulate the Attorney General and the
Department of Justice for moving responsibly on this matter,
for working responsibly with us and taking care to request only
those reforms that fit well within the bounds of the
Constitution.
Although the proposal has been the subject of intense
scrutiny over the last couple of weeks, a significant amount of
the objections to the proposal have been on matters of policy,
not on matters of constitutional concern. As the White House
and the Attorney General have recognized, by submitting such a
restrained proposal, we must not repeal or impinge upon our
cherished constitutional liberties. To do so would only bring
us closer to the joyless society espoused by our enemy.
The administration's proposal properly takes these concerns
into account, and at the same time does what people around
America have been calling upon Congress to do; that is, to give
our law enforcement community the tools they need to keep us
safe in our homes, in our places of business, as we travel
throughout our country, and as we enjoy life in this country
that we have always taken for granted prior to September 11.
As a result of the substantial progress that we have made
in our scrutiny and debate over the past several weeks, I do
believe, as I have said before, that we are close to a
consensus package that will pass this Congress, I believe, with
overwhelming bipartisan support, and I think in the best
interests of the American people.
The Attorney General has explicitly told us what tools he
needs. I have personally reviewed his requests and found them
to be consistent with our constitutional protections,
especially as we fine-tune them. I hope that as we present this
ultimate package--and I hope we can do it this week; I am
hopeful that we can mark it up tomorrow, and I believe we can.
There is no excuse in the world for not doing it, and I believe
the Chairman does intend to do that, or at least that is what
has been indicated to me. I think that is the responsible thing
to do.
As we mark it up, I hope that the American people will see
the wisdom of this, will see the importance of it, will see how
we will have better tools to interdict and stop terrorist acts
like we have seen, and do so in ways that are constitutionally-
sound without violating constitutional principles or civil
liberties.
I am just grateful to you, Mr. Chairman. I appreciate you
holding this hearing, and I am grateful for the work that
Senator Sessions does on this committee and on this
subcommittee.
Chairman Feingold. I thank you, Senator Hatch. I thank you
for your statement and for all your hard work to try to come to
an agreement on this, and also for complimenting us on having
this hearing. The fact is that the hearing with the Attorney
General was interrupted before many of us could ask questions.
There has been no testimony before this committee by experts on
civil liberties at this point, and we are hoping that this
hearing can help us before this matter goes through and we can
explore some of the items that were originally proposed, as
well as some of the compromises that have been suggested.
Senator Sessions?
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Thank you, Mr. Chairman. This is a
worthwhile hearing and I appreciate your calling it. I thank
Senator Hatch for his insight and leadership in these matters.
I know there are a lot of negotiations going on, and I have
interest in those and it will be interesting to see how it
comes out.
I would just say that I have gotten older and have examined
what goes on around the world, it strikes me that progress,
liberty, wealth and health are functions of orderly
governments. Governments have to maintain order or else they
don't succeed.
I believe the reason we have so much poverty and so much
oppression of one group by another is because government is
unable to maintain order, and as a result economic growth and
sophisticated science cannot flourish.
Our Constitution begins, ``We the people of the United
States, in order to form a perfect Union, establish justice,
ensure domestic tranquility, provide for the common defense,
promote the general welfare and secure the blessings of liberty
for ourselves and our posterity, do ordain and establish this
Constitution.'' It provides great protections for us, and I
don't believe there is anything in the administration's bill
that the Supreme Court would conclude violates the Constitution
of the United States.
We know that in war time we have historically done that in
great degree. Chief Rehnquist once again has written a book
that is very timely, All Laws But One, in which he talks about
the diminishment of constitutional protections in war time, and
delineates a host of them that we have done in this century,
big-time diminutions of freedom. But I don't see that in this
bill, so I would be glad to hear these experts tell me
precisely what is in the legislation they think would violate
current standards of constitutional thought and our great
beliefs in freedom.
As Senator Hatch noted, we are dealing with people who are
capable of killing us in large numbers, innocent civilians,
creating disorder and economic disruption in ways that we have
never seen before. So I think if we are smart, if we work at it
right, we can utilize our great historical principles to give
some tools that law enforcement needs that can protect us
without undermining the Constitution.
Thank you, Mr. Chairman.
[The prepared statement of Senator Sessions follows.]
Statement of Hon. Jeff Sessions, a U.S. Senator from the State of
Alabama
Today we address whether the Adminnistration's Anti-Terrorism
legislation violates the constitutional freedoms of our people during
this War on Terrorism. This is an important issue, and I commend
Chairman Feingold for holding this hearing.
My review of this legislation leads me to conclude that it does not
violate the Constitution. Indeed, no serious commentator has
established that it does. And four former Attorneys General have
expressed their support for the bill, stating ``We believe that the
proposals are consistent with the Constitution and would not unduly
interfere in the liberties we as Americans cherish. Letters from
Griffin Bell, Dick Thornburgh, Edwin Meese III, and William Barr,
Attorney General, to Chairman Leahy and Senator Hatch, Senate Judiciary
Committee (Oct. 2, 1001).
Placed in context, this legislation is a modest and measured
response to the ruthless acts of war that only a few weeks ago cost us
the lives of more than 5,000 people and threatens to take many more. To
frame the context for assessing the legislation's impact on our
constitutional liberties, we must begin with the Constitution and its
history.
The Constitution
While it is presently fashionable to speak only in terms of
``rights,'' the Declaration of Independence and the Constitution speak
also in terms of governmental power--the power to secure these rights.
The Declaration of Independence states:
``We hold these Truths to be selfevident, that all Men are
created equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are Life, Liberty,
and the Pursuit of Happiness--That to secure these Rights,
Governments are instituted among Men. . . .'' The Declaration
of Independence para. 2 (1776) (emphasis added).
The preamble to our Constitution states:
``We the People of the United States, in--Order to form a more
perfect Union, establish Justice, insure domestic Tranquility,
provide for the common defence, promote the general Welfare,
and secure the Blessings of Liberty to ourselves and our
Posterity.'' U.S. Const. preamble (emphases added).
Thus, the Framers knew that liberty would not be secure without
domestic tranquility and without a strong defense against foreign
enemies. If the Government does not maintain order, then the weakest
and most disadvantaged in society are the first to suffer the loss of
liberty and the last to recover it. As the great liberal judge Learned
Hand stated, ``A society in which men recognize no check upon their
freedom soon becomes a society where freedom is the possession of only
a savage few. . . .'' Learned Hand, The Spirit of Liberty 191 (New
York: Alfred A. Knopf 1952).
In the FEDERALIST PAPERS, James Madison assessed the balance
between the Government's power to prevent stronger individuals from
infringing on weaker individuals' rights and the Government's tendency
to impinge on those rights itself as follows:
``In framing a government which is to be administered by men
over men, the great difficulty lies in this: you must first
enable the government to control the governed; and in the next
place oblige it to control itself.'' The Federalist No. 51, at
322 (James Madison) (Clinton Rossiter ed., 1961).
It is clear that the Framers did not want to repeat the error of
the Articles of Confederation that produced a Government too weak to
survive longterm internal and external threats and almost too weak to
survive a war.
Historical Context
There is ample history of governments trying to win wars and
curtailing civil liberties in their efforts. In his 1998 book, All The
Laws But One, Chief Justice Rehnquist states:
``In any civilized society the most important task is achieving a
proper balance between freedom and order. In wartime, reason and
history both suggest that this balance shifts to some degree in favor
of order--in favor of the government's ability to deal with conditions
that threaten the national well-being.'' William H. Rehnquist, All The
Laws But One 222 (1998).
Rehnquist recounts that at different times during the Civil War,
World War I, or World War II, the federal government suspended the writ
of habeas corpus, tried civilian citizens in military commissions
without a jury, interned people based on their race without
individualized determinations that they were threats to national
security, and suppressed anti-war speech and press articles. William H.
Rehnquist, All The Laws But One 25, 34, 174-75, 214-15 (1998).
I would add that during the Korean War, the federal government
seized privately-owned, lawful, and legitimate steel mills that were
not connected with criminal activity. See Youngstown Sheet & Tube Co.
v. Sawyer, 343 U.S. 579 (1952) (holding that President Truman could not
seize the nation's steel mills during the Korean War).
The Administration's Bill
Placed in context, it is clear that the constitutional effects of
the Bush Administration's Anti-Terrorism Bill are mild by historical
standards. The Bill does not suspend the writ of habeas Corpus. Compare
Ex parte Merryman, 17 Fed. Cas. 144 (1861) (recounting President
Lincoln's suspension of the writ of habeas corpus for a Confederate
sympathizer in Maryland at the outbreak of the Civil War). The Bill
does not require citizens to be tried by military commissions without a
jury. Compare Ex parte Milligan, 71 U.S. 2 (1866) (recounting the
Lincoln Administration's trial of civilians for conspiring to conduct
an armed pro-Confederate uprising in Indiana). The Bill does not
authorize the internment of citizens based on their race without
individualized determinations that they are a threat to national
security. Compare Korematsu v. United States, 323 U.S. 214 (1944)
(recounting the internment of Japanese aliens and citizens who lived on
the West Coast based on their race, not on any individualized evidence
of a threat to national security). The Bill does not attempt to
suppress anti-war speech or press articles. Compare Abrams v. United
States, 250 U.S. 616 (1919) (recounting the conviction under the
Sedition Act of 1918 of Russian immigrants for printing pamphlets
criticizing Allied intervention in Russia during World War I). And the
B111 does not empower the Government to seize privately-owned, lawful
businesses that are not connected with criminal activity. Compare
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (recounting
President Truman's seizure of the steel mills during the Korean War).
Indeed, none of these great constitutional issues of American history
concerning civil liberties in wartime are raised by this Bill.
Nonetheless, it is important to remember that our examination of
this Anti-Terrorism Bill is not merely a debate for academic benefit or
a means for various special interest groups to raise money. It is a
choice with real-life consequences.
In my 15 years as a federal prosecutor, I saw the real impact of
our criminal law on real victims. When there was a technical glitch in
the law that touched on constitutional rights, it could result in a
criminal set free, a victim left unvindicated, and justice left undone.
When a drug kingpin is set free by an outdated or technically
deficient law, he may endanger the lives of 2 or 3 witnesses. When
terrorists remained at large because of outdated and technically
deficient laws, they murdered more than 5,000 people on September 11th.
Thus, while we must always keep in mind our cherished constitutional
liberties and our duty to protect them, we must not lose sight of the
real-life impact of the decisions that we in Congress make concerning
this Bill.
The Bill contains numerous provisions that would update our laws
and provide our intelligence and criminal investigators the tools they
need to keep up with well-financed, sophisticated, and ruthless
terrorists and other criminals.
Pen Registers--The Bill would provide for nationwide application of
judicial orders for installing pen registers and trap and trace devices
to record telephone numbers that come to and from a particular phone.
In Smith v. Maryland, 442 U.S. 735 (1979), the Supreme Court held that
the use of pen registers by law enforcement to record outgoing numbers
dialed from a telephone does not violate the Constitution because there
is no reasonable expectation of privacy in numbers that are dialed out
of a telephone. Present day criminals, including terrorists, move from
State to State and change telephones regularly. Our law enforcement
officers need to be able to move as fast as the terrorists.
The Bill would also allow pen register devices to record routing
and address information on the Internet. It is not intended to allow
the Government to read e-mail messages without a warrant. The
Administration is negotiating in good faith to make doubly sure that
the content of e-mail messages is not captured by these devices and
thus, no Fourth Amendment issue is raised.
FISA--The Administration's Bill would amend the Foreign
Intelligence Surveillance Act--FISA--to allow surveillance of an agent
of a foreign power, which includes a member of an international
terrorist group, with less than an exclusive or primary purpose of
foreign intelligence gathering. This would allow, for example, our
criminal investigators to assist our intelligence officers in arresting
a criminal before he supplies a terrorist with deadly weapons. This
ability to conduct more flexible surveillance is one of the few
provisions of this bill that could have prevented the September 11,
2001 attacks.
Under the Bill, a court would still have to find probable cause
that the target of the surveillance was an agent of a foreign power,
including a member of an international terrorist group. Thus, the
surveillance could not apply to an average American citizen or a run-
of-themill criminal. It would apply to terrorists who break the law.
Immigration--Finally, I must express my regret that some of the
immigration provisions have been eliminated from the Administration's
Bill in the Senate. While lawful immigrants who work hard and
contribute to our country are welcome, Congress has the broad power to
deal with non-citizens in general and illegal aliens in particular. In
Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 491-
92 (1999), the Supreme Court held that ``when an alien's continuing
presence in this country is in violation of the immigration laws, the
Government does not offend the Constitution by deporting him for the
additional reason that it believes him to be a member of an
organization that supports terrorist activity.'' I trust that the
Administration will keep this in mind as it fights our War on
Terrorism.
Conclusion
The Administration's Bill raises none of the great constitutional
issues that have confronted the country in prior wars. It is a measured
response to the worst foreign attack on American soil in our history.
The Bill updates our laws to allow our criminal and intelligence
officers to work together quickly to track down and stop the most
immediate threat to our constitutional liberties--ruthless terrorists
with no regard for law or life.
Chairman Feingold. Thank you very much, Senator Sessions.
Now, I would like to turn to a distinguished member of the
committee, Senator Durbin.
STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE
STATE OF ILLINOIS
Senator Durbin. Senator Feingold, thank you for this
hearing, and I want to thank you on behalf of not only the
committee, but the Congress, because I think it is important
that we pause at some moments in our history and reflect on
whether or not the decisions we are about to make will stand
the test of time.
I agree completely with Senator Sessions in his note that
our first obligation is to protect and defend this great
Nation. But in that same Preamble that he read, they made a
point of saying it was for the purpose of securing the
blessings of liberty. And the question in this hearing is
whether or not anything we are doing or contemplating doing is
going too far.
I think that Attorney General Ashcroft and FBI Director
Mueller and other law enforcement officials have done an
excellent job in responding quickly to this terrible tragedy
that has confronted our Nation. But now we are being confronted
with the proposition of making permanent changes in law in
America, and we have to really ask ourselves whether these
changes will stand the test of time.
In times of crisis, our Government has often overreacted. I
am a very proud son of Illinois, the Land of Lincoln, and
believe him to be one of our greatest Presidents. Yet, in 1861,
at the height of the Civil War, he suspended the writ of habeas
corpus for secessionists and those suspected of disloyalty.
Congress expanded the suspension in 1863; in World War I, the
Alien and Sedition Acts, the Espionage Acts.
The so-called Palmer Raids, led by Attorney General
Mitchell Palmer, included the confiscation and selling off of
property and personal belongings of those who were deported; in
1940, the Alien Registration Act, and then following Pearl
Harbor, the infamous Executive Order 9066 by President
Roosevelt that led to 120,000 Japanese Americans being
interned.
At the time, I am certain that these were immensely popular
because in the midst of a national crisis, people want their
security first. That is understandable. But we have got to make
certain that the decisions we make in this committee are
certainly consistent with our promise to secure the blessings
of liberty on the people of this country. We have to give to
law enforcement the tools necessary to fight terrorism in our
country, and outside as well, but we hope that this can be
achieved without compromising our basic liberties and rights.
Senator Feingold, thank you for raising this important
issue.
Chairman Feingold. Thank you, Senator Durbin.
I want to start with our distinguished panel now. I know
that at least Mr. Norquist has a serious time problem. We are
going to start with Mr. Kris, the Associate Deputy Attorney
General at the Department of Justice. Mr. Kris holds degrees
from Haverford College and Harvard School.
I thank you for coming this morning. Before you begin, let
me ask all of you to limit your remarks to five minutes. We
have a large panel here and I want to make sure that the
members of the committee have a chance to ask questions. Of
course, your complete written statements will appear in the
record of this hearing.
Mr. Kris, please proceed.
STATEMENT OF DAVID S. KRIS, ASSOCIATE DEPUTY ATTORNEY GENERAL,
DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Mr. Kris. Thank you, Mr. Chairman and members of the
committee. Thank you for the opportunity to discuss the
administration's proposed legislative response to the acts of
terrorism inflicted on our country on September 11.
My name is David Kris and I am an Associate Deputy Attorney
General. My portfolio includes national security policy and
FISA, the Foreign Intelligence Surveillance Act. I have been
invited to provide information and to answer questions about
how the FISA process works and how that process can be
improved, consistent with the Constitution.
The additional tools sought by the administration seek to
remove impediments to the vitally important coordination
between law enforcement and intelligence elements in the
Government. I appreciate the opportunity to discuss and answer
questions in that area this morning.
The Department has sent to the Chairman and the ranking
member of the Judiciary Committee, Senators Hatch and Leahy, a
detailed letter from Assistant Attorney General Dan Bryant
explaining why our proposed change to FISA's purpose
requirement is constitutional. I understand that the committee
has copies of that letter, and with respect to the sort of
finer points of the constitutional analysis I will defer to the
letter.
I must also note that, given the very nature of FISA
proceedings, and in particular their classified nature, I may
not be able to answer all of your questions this morning as
fully as you would like in an open hearing. I apologize in
advance for that limitation. I will do my best to provide full
and complete unclassified answers. But, of course, I am also
happy to brief the committee or members in a closed setting if
there are matters that I can't go into at this hearing. I
appreciate your understanding of that constraint.
Again, thank you for the opportunity to provide the
committee with information it seeks on this important matter
involving our country's fight against terrorism. Thank you.
[The prepared statement of Mr. Kris follows:]
State of David S. Kris, Associate Deputy Attorney General, Department
of Justice, Washington, DC
Mr. Chairman and Members of the Subcommittee:
Thank you for the opportunity to discuss the Administration's
proposed legislative response to the acts of terrorism inflicted on our
country on September 11.
My name is David Kris. I am an Associate Deputy Attorney General at
the Department of Justice. My portfolio includes national security
policy and FISA, the Foreign Intelligence Surveillance Act.
I have been invited to provide information and answer questions
about how the FISA process works and how that process can be improved
consistent with the Constitution. The additional tools sought by the
Administration seek to remove impediments to the vitally important
coordination between the intelligence and law enforcement elements of
the government. I appreciate the opportunity to discuss and answer
questions in this area.
The Department has prepared and sent to the Chairman and Ranking
Member of the Judiciary Committee--Senators Leahy and Hatch--a detailed
letter from Assistant Attorney General Dan Bryant explaining why our
proposed change to FISA's ``purpose'' requirement is constitutional. I
understand that you have copies of that letter. With respect to the
finer points of the Constitutional analysis that underlies the
Administration's proposal, I will defer to the letter.
I must also note that, given the classified nature of FISA
proceedings, I may not be able to answer certain of your questions in
this open hearing. I apologize in advance for that and I will do my
best to provide full and complete unclassified responses. However, I am
also happy to brief you and other members of the Committee in a closed
setting if there are matters that cannot be discussed here this
morning. I appreciate your understanding of these constraints.
Again, thank you for the opportunity to provide your Committee with
the information it seeks on this important matter involving our
country's fight against terrorism.
Thank you.
Chairman Feingold. I thank you.
Our next witness will be Grover Norquist. Mr. Norquist is
the President of Americans for Tax Reform, a coalition of
taxpayer groups, individuals and businesses opposed to higher
taxes at the Federal and State levels. He holds both a B.A. and
an M.B.A. from Harvard University.
I thank you for appearing today.
STATEMENT OF GROVER NORQUIST, PRESIDENT, AMERICANS FOR TAX
REFORM, WASHINGTON, D.C.
Mr. Norquist. Thank you very much. In addition to serving
as President of Americans for Tax Reform, I, along with quite a
number of conservative groups, have joined the In Defense of
Freedom coalition. The list of ten statements of principle is
included in my testimony.
I will speak for myself, but I would note that David Keane,
of the American Conservative Union, has raised similar
questions, and Paul Weyrich, of the Free Congress Foundation;
Phyllis Schlafly, of the Eagle Forum, are all very concerned
about this legislation, the particulars of it.
The most important two things, I would suggest, is I have
sent a letter to every member of the House and Senate and asked
them to please promise to read it before they vote for it. I
did get one response asking if I was kidding, and I am not
kidding. I mean that very seriously. There is a very real fear
on the part of center-right groups and civic groups in the
country that we will be rushing into passing something without
looking at it sufficiently.
There are voices from the Justice Department demanding that
you hurry up and pass it before they showed it to you. The
reason people ask you to vote for something right away is they
think if you read it, you might not. So I think that was
troubling.
The other thing that I am pleased at is we have had a very
civil national discussion on this. I am concerned the House has
labeled their bill the PATRIOT bill. Those of us who may find
ourselves in opposition to it have to wonder where that leaves
us. I do think it is important that we have, to date, had a
very civil discussion and people have been able to raise
questions without having their intentions questioned.
I would suggest five principles that you look at when you
are analyzing the bill. The first is, since this is being
passed in the wake of September 11, I do think it is incumbent
on people trying to pass any particular piece of this to
explain whether this would have had anything to do with
preventing September 11.
Second, if there are new powers that we have to have to
fight terrorism, then let us limit that to fighting terrorism.
In the past, this body and the House passed the RICO bill,
which is supposed to fight organized crime and is used to
attack pro-life activists. The asset forfeiture provisions that
were supposed to be used to fight the drug war have been taking
people's property all over the country.
You can pass something in response to a particular problem
and then 5, 10, 20 years later it is used for Lord knows what.
So if it really is necessary to fight terrorism, let's put it
in that that is what it is for and not usable for other things.
They sold us this stuff; we have to have this to fight the
drug war, we have to have this to fight organized crime. And
now they are telling us, well, of course, those are now the
floors of the Government's power and the Government should have
those kinds of power for all sorts of other things, not just
the specific, targeted reasons that they originally sold to us.
Third: Consider sunsetting the entire package and consider
sunsetting provisions. I realize that that is weak. When you
pass something for three years, they tend to get put off, but
better sunsetted than not sunsetted so we could at least
revisit these things that we are passing in some haste in the
wake of September 11.
Fourth: While you are doing this, considering reforming the
institutions that manage these things. I think one of the
reasons people are willing to look at the Defense Department's
request for more money is that the Secretary of Defense has
been out there saying we ought to have base closings, we ought
to stop doing some of the expensive things we used to do and
spend money on new stuff.
I am very open to a discussion from the Secretary of
Defense about new ways to spend money and do things in the
Defense Department because he is so serious about dropping old
things. Well, I would be interested in knowing, if we are
passing new laws, what old laws didn't work. What are we
looking at undoing, what are we looking at reforming?
Obviously, something went wrong here, and the folks at the
FBI and the CIA, I hope, are spending some time, if not in
public at least with you privately, talking about where things
went wrong. If somebody comes and asks for more money and more
power, I kind of want to know what they were doing previously
and why they need more money and more power.
If the laws have been flawed in the past, are they only
flawed in one direction? They were flawed because they didn't
give the Government enough power, or are they equally flawed in
giving the Government too much power in some areas? I hope we
can even-handedly look at that.
I raise some specifics in my testimony, and I speak on
those specifics on behalf of the Eagle Forum and Free Congress
Foundation, as well, because I was able to talk to them. But I
am concerned specifically in the House version of this, which
is an improvement over the administration's, but necessarily
everything one would want in protecting civil liberties, that
the use of wiretap information from foreign governments is
still too promiscuously used.
Deleting the requirement from the Foreign Intelligence
Surveillance Act for formal pleading to a court of law strikes
me as dangerous. The asset forfeiture questions I still think
are too broad. There has been some discussion about going back
to the ``know your customer'' legislation of invading people's
privacy through banks, and so on. Each of these, I think, are
problematic.
Senator Hatch mentioned that he didn't see anything in here
that violated the Constitution. I know that some Senators have
trouble reading the Second Amendment and some trouble finding
the Fourth and Fifth Amendments. But the Ninth Amendment is
also in there and I would ask people to keep an eye on that
when they talk about something not being a violation of the
Constitution.
Thank you.
[The prepared statement of Mr. Norquist follows:]
Statement of Grover Norquist, President, Americans for Tax Reform,
Washington, D.C.
Thank you for the opportunity to present my thoughts on pending
legislation to increase the police powers of the federal government.
My name is Grover Glenn Norquist and I serve as president of
Americans for Tax Reform.
I am also a member of the large coalition of conservative and
liberal civic groups entitled ``In Defense of Freedom'' that has come
together in response to the Justice Department's recent requests for
expanded police powers (see addendum).
Americans for Tax Reform has had one primary concern throughout:
that the legislation cobbled together as a Justice Department wish list
of powers not be pushed through Congress without the time and effort to
look at what is in the legislation. I wrote a letter to all members of
the House and Senate urging them to promise not to vote for any
legislation on civil liberties restrictions that they had not actually
read.
I did receive one fax from the Hill asking if I was kidding.
I was not.
I am delighted that leaders in the House and Senate have demanded
that this legislation be read, examined, debated and the good parts
enacted in a deliberative fashion, without reacting in panic.
I am also very pleased that the proponents of massive new powers
for the federal government refrained from calling those of us who
wanted the legislation actually read silly names. Those of us who feel
strongly that the Constitution-and every little jot and tittle of the
Constitution-was written on purpose, that the Second and Fourth
Amendments were not mistakes, that the Fifth Amendment is not a
loophole, have been able to make our voices heard in this time of
national concern without people questioning our patriotism, seriousness
or opposition to bad guys.
As we now consider the House of Representatives compromise
legislation that has the support of serious men such as Congressmen
Sensenbrenner and Conyers, as well as the legislation proposed by the
Justice Department, I would urge you to keep the following principles
in mind.
1. If we are passing new powers for the federal government in
response to the murders of September 11, then any change in law should
be asked to show how it would have stopped that terrorist act. If a new
law would not have stopped the murders or helped us to catch and punish
those responsible, then why are we changing the law?
2. If this is a response to terror, then the word terrorism should
appear not just in the title of the bill, but the new powers should be
limited to cases of terror. For example, Congress passed the RICO
statutes with the promise that it would be used against mobsters and
then prosecutors have turned it against pro-life organizations.
Congress gave the government powers to seize people's property-asset
forfeiture-promising that it would be used against drug peddlers, and
property seizures have swept the nation to the point that Congress had
to revisit the statutes and reduce those powers that were being abused
to the detriment of citizens.
Now we are told the government just wants to fight against
terrorists. Okay, then put limits in the use of these powers to
terrorist cases and terrorist cases alone.
3. Consider sunsetting all or part of the changes in law you
propose. A bad law that lasts two years is less damaging than a bad law
that lasts forever.
4. Along with consideration of new powers, please consider
reforming the institutions that have been using the powers you have
granted in the past. The Pentagon has great credibility in asking for
more money for the Defense Department because Secretary Rumsfeld has
led the fight for a base closings commission and to end the production
of old weapons to afford the production of new weapons. An institution
looking to cut away old waste and to end destructive or wasteful
programs can be more seriously entrusted with new monies.
I do not to date see any effort by the intelligence community for
serious self-examination, self-criticism or willingness to reform.
Something went wrong. Demands for more money and more power would be
more credible if they were accompanied by retirements, firings, self-
criticism and a public recognition that the present intelligence
agencies and their procedures are by definition flawed. If serious
self-examination is going on in private, that is only a first step. A
democracy must see its government reforming itself before it can be
asked to grant more powers and more money.
5. If changes in the laws are needed, then what laws do you intend
to remove? Is it believable that all the laws and powers passed to date
are useful and productive and conducive to human liberty and security?
That the only problems were too few laws? That isn't believable. The
congressmen who passed the present set of powers that you now say are
flawed made only one mistake: too few powers. Never too many.
The In Defense of Freedom coalition is a broad cross section of
American thought. I would like to speak now for conservative groups
such as the Eagle Forum and the Free Congress Foundation about some of
the proposals contained in the several bills that cause us the most
apprehension.
The use of wiretap information from foreign governments opens the
door to introducing evidence against a US citizen in a US court of law
that was gathered in a manner that violates the Fourth Amendment. It is
disturbing that this vital protection against unreasonable searches and
seizures could be waived.
Deleting the requirement under the Foreign Intelligence
Surveillance Act for a formal pleading to a court of law and the
signature of a FISA judge or magistrate to secure business documents
and records and replacing it with an administrative subpoena cuts the
judiciary out of the equation completely. The judicial branch was
established as a check on the other two. Not allowing for judicial
oversight in this instance creates an imbalance of power wholly
inconsistent with our constitutional principles.
Allowing for the compelled disclosure of educational records is
substantively unrelated to the effective pursuit and prosecution of
terrorists, and would infringe on the privacy rights of all students
throughout the nation. The National Statistics Act prohibited the
disclosure of this information for reasons far better than any argument
in favor of letting the government break open the seals.
Applying a uniform standard for eliminating the mandatory notice
of the issuance of search warrants when there is showing to a court
that such notice would jeopardize an investigation has been
appropriately derided as ``sneak and peek''. Such a standard would
unacceptably hamper judicial discretion in conferring or denying
authority for conducting ``sneak and peak'' searches.
Expanding the authority for pre-trial asset restraint so that the
government can take a defendant's property-even when the government
cannot prove it is traceable to any offense-is sufficiently outrageous
to not require further comment.
Unleashing the ``Know Your Customer'' rules on the population
would be a most unforgivable action. This idea, which has been rejected
every time it has surfaced, would deputize bank employees by obligating
them to monitor their customers' transaction activities, and requiring
them to report to the federal government any transaction that fell
conspicuously outside of a particular customer's ``normal'' practice.
Some observers have been surprised to see the American Civil
Liberties Union join with the American Conservative Union and other
center-right groups such as Phyllis Schlafly's Eagle Forum, Paul
Weyrich's Free Congress Foundation and Americans for Tax Reform.
I am not surprised.
While we may differ on many issues we are all Americans. America is
a nation not of a single people or race, native tongue or religion. We
are united by our dedication to the idea that men and women are and
should by nature be free to live their lives as they see fit in
liberty. The Constitution unites us. Historians have said that Afghan
factions feud unless the British or Soviets invade and they unite in
defense of the territory of Afghanistan.
We are Americans and we unite in defense of the Constitution and
ordered liberty.
As Senators you have all sworn an oath to oppose all enemies of the
Constitution-both foreign and domestic. Please, as this debate
advances, keep an eye on the domestic enemies of the Constitution. They
are the only ones who can do permanent damage to America.
Addendum
in defense of freedom
1. On September 11, 2001 thousands of people lost their lives in a
brutal assault on the American people and the American form of
government. We mourn the loss of these innocent lives and insist that
those who perpetrated these acts be held accountable.
2. This tragedy requires all Americans to examine carefully the
steps our country may now take to reduce the risk of future terrorist
attacks.
3. We need to consider proposals calmly and deliberately with a
determination not to erode the liberties and freedoms that are at the
core of the American way of life.
4. We need to ensure that actions by our government uphold the
principles of a democratic society, accountable government and
international law, and that all decisions are taken in a manner
consistent with the Constitution.
5. We can, as we have in the past, in times of war and of peace,
reconcile the requirements of security with the demands of liberty.
6. We should resist the temptation to enact proposals in the
mistaken belief that anything that may be called anti-terrorist will
necessarily provide greater security.
7. We should resist efforts to target people because of their race,
religion, ethnic background or appearance, including immigrants in
general, Arab Americans and Muslims.
8. We affirm the right of peaceful dissent, protected by the First
Amendment, now, when it is most at risk.
9. We should applaud our political leaders in the days ahead who
have the courage to say that our freedoms should not be limited.
10. We must have faith in our democratic system and our
Constitution, and in our ability to protect at the same time both the
freedom and the security of all Americans.
Chairman Feingold. Thank you, Mr. Norquist. I know you have
another pressing engagement. You are, of course, welcome to
stay as long as you would like, but feel free to leave when you
need to.
Before we go to Dr. Halperin, I would like to call on the
distinguished Chairman of the committee, Senator Leahy, who, of
course, was kind enough to make it possible for me to hold this
hearing, but more importantly immediately made sure that this
committee would be focused on the proper balance of these
issues of our security and civil liberties.
Senator Leahy?
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Chairman Leahy. Well, thank you, Mr. Chairman. I will put
my whole statement in the record. I just wanted to compliment
you for doing this hearing. I think it is extraordinarily
timely.
Mr. Norquist, we have heard from your staff and I
appreciate the help they have offered us, as well as a number
of the staff have. I am one thinks that the Bill of Rights is
very important. We have issues that go to the First Amendment,
the Second Amendment, the Fourth Amendment, the Ninth
Amendment, and so on, in here in the package that is before us,
and we should look at all of them.
I think it would have been a mistake to have had a rush to
judgment and immediately pass something, even though some were
saying we should just take whatever came from the
administration and pass it immediately. I think that as soon as
the fine print was read by people across the political
spectrum, we would have had an absolute outcry in this country
had we done that.
I would just like to note one thing, Mr. Chairman, and you
have spoken eloquently on this, and it is the violence that has
been directed at Arab, Muslim and South Asian Americans over
the past three weeks. It is abhorrent.
We are in a time when Americans of every ethnic and
religious background are grieving for the loss to our neighbors
and our Nation. Everybody seems touched by what has happened.
The prejudice and the hate crimes that have been spawned by a
tiny number of people in America is intolerable. The President,
the Attorney General and the FBI Director have all reiterated
that fundamental precept, and I compliment President Bush and
Attorney General Ashcroft and Director Mueller for that.
Americans treat their fellow men and women with dignity and
respect, not prejudice and hate. That is what makes us a great
country. Guilt by association and stereotyping have no place in
American law or American life. Individual accountability is at
the core of our Constitution.
As the grandson of immigrants, grandparents who didn't
speak any English when they came to our shores, and with a
mother and a wife who are first-generation Americans who didn't
speak English until they began school, I know how easy it is to
stereotype people.
We are all Americans. We have all been badly, badly injured
by these terrorist attacks. Let's not increase the injury to
ourselves. We should value every single American, cherish them,
and remember that it is that kind of diversity that made us a
great Nation.
So, Mr. Chairman, you do us a great service in doing this.
I thank you and Senator Durbin and Senator Sessions for taking
the time. I will put my whole statement in the record.
Chairman Feingold. Without objection.
[The prepared statement of Senator Leahy follows:]
Statement of Hon. Patrick J. Leahy, a U.S. Senator from the State of
Vermont
I am grateful to Senator Feingold for holding this timely hearing.
Our history has taught us that in times of national crisis, we must
cherish our constitutional freedoms all the more. We should bring that
perspective to the ongoing negotiations over anti-terrorism
legislation. We will receive advice today from witnesses with a long
history of dedication to constitutional principles.
We have been discussing many constitutional issues in the wake of
the terrorist attacks on America, from Fourth Amendment protections
against unreasonable search and seizure to due process concerns about
the treatment of legal permanent residents. These are important issues
that our witnesses will discuss today. First, however, I would like to
address the violence that has been directed against Arab, Muslim, and
South Asian Americans over the last three weeks. In a time when
Americans of every ethnic and religious background grieve for the loss
to our neighbors and our nation, this prejudice--and the hate crimes it
has spawned--is intolerable. The President, the Attorney General and
the FBI Director have all reiterated that fundamental precept.
Americans treat their fellow men and women with dignity and respect,
not prejudice and hate. Guilt by association and stereotyping have no
place in American law or American life--indeed, individual
accountability is at the core of our Constitution.
Our nation is united today against the terrorist threat, with
greater strength and resolve than I have seen in my lifetime. More than
that, however, I believe there is a broad consensus in our nation that
we must battle terrorism without sacrificing that which makes our
nation unique. Our constitutional values have united us for more than
200 years. We must improve our ability to find and punish the evildoers
who attacked innocent people on September 11 and to prevent similar
tragedies from occurring in the future. But we should not compromise
the civil rights of our citizens in the process. We will protect our
security. We will not give up our freedom. The values we hold dear are
what define us as a nation. That commitment is what will allow our
republic to remain strong.
The disastrous loss of life on September 11 will never be
forgotten. Those losses and the damage to our economy and our great
buildings--and our national psyche--cannot be minimized. But even if
disaster were to strike our great Capitol or other precious monuments
of marble and stone, we would rebuild and go on. Terrorists cannot take
from us the ideals of Washington and Jefferson and Lincoln, or our
fidelity to the Constitution.
We do not have to travel very far back into our history to find a
time when we disregarded our principles in a time of crisis. Our
internment of Japanese Americans in World War II was a shameful chapter
in our history, and we should not repeat our mistake. The apologies we
have made in recent years remind us of the long shadow cast by our
worst acts, and serve as an important reminder of the dangers of
overreaction.
Trial by fire can refine us or it can coarsen us. If we hold to our
ideals and values, then it will strengthen us. Americans are united and
all the free world, all civilized nations, all caring people join
together with us. I trust that we will seek and serve justice and
demonstrate to the world not only by our resolve but by our commitment
to our constitutional principles that the United States remains strong
even in the face of these terrorist atrocities.
Those who have attacked us hate what is best in America--our
diversity and our freedom. Now more than ever, we must preserve and
extend those values. Anything less would mark defeat and would dishonor
those lost in the attacks and rescue efforts on September 11.
Chairman Feingold. Mr. Chairman, I just want to say that I
am grateful for your remarks with regard to the civil rights
issues. When I had an opportunity to speak in response to this
tragedy the day after September 11, I talked about our resolve
as a Nation and, of course, our gratitude for all the heroism.
But there were two cautions. One had to do with civil liberties
and the other had to do with civil rights.
Working with you, Mr. Chairman, this subcommittee will hold
a hearing in the near future on the civil rights issues
concerning acts of violence and discrimination against Arab
Americans, Muslim Americans, South Asians and others.
Thank you, Mr. Chairman.
With that, I am delighted to turn to Dr. Morton Halperin.
Dr. Halperin is currently a Senior Fellow of the Council on
Foreign Relations and the Chair of the Advisory Board at the
Center for National Security Studies. Dr. Halperin has served
the Federal Government in numerous capacities with the National
Security Council and the Department of Defense in the
administrations of Presidents Johnson and Nixon, and most
recently President Clinton. Much of his work is focused on
issues affecting both civil liberties and national security.
We appreciate you being here. Go ahead, Dr. Halperin.
STATEMENT OF MORTON H. HALPERIN, CHAIR, ADVISORY BOARD, CENTER
FOR NATIONAL SECURITY STUDIES, AND SENIOR FELLOW, COUNCIL ON
FOREIGN RELATIONS, WASHINGTON, D.C.
Mr. Halperin. Thank you very much, Mr. Chairman. It is a
great pleasure for me to testify once again before this
committee. I am testifying on behalf of the Center for National
Security Studies.
I want to commend this subcommittee for holding this
hearing, and I also want to commend Senator Leahy for the
leadership he has shown in insisting that the Senate will look
carefully at what the administration proposes and work hard to
make sure that it is consistent both with our security needs
and in defense of our liberties. I think we are grateful to him
for the leadership he has shown, as well as to the other
members of this committee who have insisted that the bill be
read and that we know what we are doing before we do it.
I also want to associate myself with Mr. Norquist's
statement. I think I agreed with almost every word of it, and
certainly with the five principles that he suggested to you.
I thought what I might most usefully do, since the text is
changing, is to try to focus on some basic principles, and in
particular on the FISA legislation, and to try to remind us all
how this came about and what the compromises were that led to
this legislation. I might say that I was, in fact, myself
deeply involved in those discussions and negotiations.
As the committee knows, until the mid-1970s the Justice
Department regularly conducted warrantless electronic
surveillances in the United States, and it was only after the
Supreme Court brought wiretaps within the Fourth Amendment, and
the abuses of the intelligence agencies were exposed so that
intelligence officials began to face lawsuits and other
restrictions, that the Government decided that it wanted
congressional legislation--and this was the Ford administration
initially--to conduct electronic surveillances for national
security purposes.
It requested this authority. Again, it came up and said the
bill had to be passed immediately, that not a comma could be
changed. Congress insisted on detailed negotiations, which were
held, and it finally agreed that it would proceed with this
legislation. But there was a compromise struck and I think it
is important to remember what the elements were of that
compromise.
Congress gave the executive branch authority to conduct
electronic surveillance for national security purposes under a
different standard than the probable cause of a crime standard
in Title III. Equally important, it created a special court to
make sure that this information did not leak, and it permitted
the Government never to have to notify the target of the
surveillance that he or she had been the target, even if the
person was a United States citizen and if the Government
concluded in the end that the person has not committed any
crime and could not be indicted.
Now, in return, the Government agreed to judicial
supervision. It agreed to provisions which minimized the
interception of non-germane information. Most important, the
Government agreed that it would use this information only for
foreign intelligence purposes, and that it would switch to a
Title III warrant if it initiated a criminal investigation.
In addition, I want to add, since the Justice Department
seems to have forgotten this, that it also agreed that Title
III and FISA would be the sole authority to conduct
surveillances within the United States, and that FISA would be
the sole authority to conduct surveillances for national
security purposes.
Congress repealed the provision it had written into the
original wiretap law which left open the President's authority
to conduct electronic surveillances without a warrant, and the
President agreed in signing the legislation that this was the
sole authority to conduct electronic surveillance for national
security purposes.
So to now hear the Justice Department suggest that it
doesn't matter what is in FISA because the President has the
authority to do this is, I think, just wrong. Whatever
authority the President may have had before this legislation
was enacted, we are now in Justice Jackson's famous third
category, where the Congress has legislated procedures to deal
with a problem. It has asserted that those procedures are the
sole authority. The President signed that legislation and
accepted it, and I think it is far too late for the Justice
Department to argue that all of this is superfluous because we
could do this without a warrant in any way we wanted to, and
therefore don't look at the details of the changes.
Now, I think it is from this perspective that one must look
at the proposals from the Justice Department, and the most
disturbing one is the provision which would essentially allow
the Justice Department to begin a surveillance even it has
already decided that its primary purpose is to develop evidence
to indict and convict somebody of a crime and even if that
person is a United States citizen.
I think it is essential to preserve the basic compromise,
which was these lesser standards were permitted because the
purpose was not to gather evidence of a crime, and that the
Government needs to be held to the notion that if it is seeking
evidence of a crime to indict somebody, it needs to use the
procedures of Title III. I think the Intelligence Committee in
the Senate has developed procedures, and I think this committee
is working on them, which I think will deal with that problem.
There is also the question of how you exchange information
between the law enforcement investigations and criminal
investigations. Here, I think we do need some changes. The
recent events demonstrate that we need to find better ways to
coordinate information that is developed by the FBI that needs
to reach the CIA and the CIA to reach the FBI.
But I would just make two points about that. One is that
the real problem is the reluctance of the agencies to share
information. That is why the Senate Intelligence Committee has
a provision trying to compel the FBI to share information which
it is lawfully able to share.
The second problem is to make sure that we limit that to
terrorism information, that we limit it to foreign intelligence
information which the foreign intelligence agencies need, and
we do so in an orderly way which ensures that information about
lawful political activity will not suddenly disperse to the
intelligence agencies.
I think my time is expired, Mr. Chairman. I appreciate the
opportunity to testify here and I look forward to responding to
questions.
[The prepared statement of Mr. Halperin follows:]
Statement of Morton H. Halperin, Chair, Advisory Board, Center for
National Security Studies, and Senior Fellow, Council on Foreign
Relations, Washington, D.C.
Mr. Chairman,
It is a very great pleasure for me to appear again before this
distinguished subcommittee.
Since the text of the legislation remains a moving target I thought
it would be more useful if I stepped back and discussed a few issues in
more general terms.
This committee does not have to be reminded that intelligence
agencies have in the past abused their authority to spy on and even
disrupt lawful political activity under the guise that those protesting
the actions of our government were in fact agents of a foreign power.
Now we are told that the efforts of Congress to expose those abuses,
especially the work of the Church Committee, is somehow responsible for
the failure of the CIA to learn about and prevent the tragic acts of
September 11. This is an outrageous characterization, both because in a
democracy we must be able to discuss abuses of power and discuss how to
prevent them, but even more because the Church Committee report did not
lead to any legislation limiting the authority of intelligence
agencies. In fact, to this day, Congress has not legislated any limits
on the ability of the CIA or other intelligence agencies to conduct
surveillance in the United States and abroad beyond that initial
prohibition in the act creating the CIA that asserted that the CIA
would have no internal security functions.
This brings me to FISA which is a grant of authority by the
Congress to the President and not a limit on what authority would
otherwise exist. Since there is a good deal of confusion about this I
want to take a moment to remind the Committee how FISA came about. I
speak from having been deeply involved in the process which led to the
enactment of FISA.
Until the mid-1970s the executive branch regularly conducted
electronic surveillances for ``national security'' purposes without a
court order. It was only after the Supreme Court held that wiretaps
were covered by the Fourth Amendment and the scandals revealed by the
Church and Pike Committees opened the intelligence agencies to threats
of lawsuits and damages that the government reconsidered its position
and decided that it needed congressional authorization to conduct
electronic surveillance for national security purposes.
(In the interest of full disclosure, I should note for the record
that I was the subject of a 21 month warrantless wiretap of my home
telephone from 1969-71. After I and my family filed suit the court
found that the surveillance violated our constitutional rights. Reading
the governments logs of your private phone calls for an extended period
does bring sharply into focus the danger of abuse and the value of
privacy).
FISA thus arose from a request from the government for authority to
conduct electronic surveillance for national security purposes. The
government explained that it could not use Title III procedures for a
number of reasons including its desire to gather foreign intelligence
information even when no crime was suspected and its unwillingness ever
to provide notice that it had conducted a surveillance.
Congress debated long and hard about FISA and enacted legislation
that was substantially different from the original draft submitted by
the administration with the usual demand that it be enacted immediately
and without any changes.
In the end Congress struck a deal with the administration with the
support of some civil libertarians including me (I then spoke for the
ACLU on these issues). The basic compromise was this: Congress gave the
executive branch the authority to conduct electronic surveillance for
national security purposes under a lesser standard than the probable
cause that it would gather evidence of a crime. Equally important, the
government was given permission to keep the surveillance secret and not
provide the notice required by Title III when the surveillance ended.
In return the government agreed to judicial supervision, and provisions
to minimize the interception of non-germane information. Most
important, it was agreed that the government would not use the FISA
procedures if it was conducting a criminal investigation and would
switch to a Title III warrant if it began a criminal investigation.
Subsequently, in 1994 Congress broadened FISA to include physical
searches which can be conducted even against the homes of Americans
without a warrant, without knock or notice, and without ever informing
the person that the government has surreptitiously acquired information
from his home. I believe that this provision is clearly
unconstitutional and the Supreme Court seems to agree (See Richards v.
Wisconsin (1997) holding that a blanket exception allowing no-knock
entries for warrants served in drug cases violated the 4th Amendment).
But that is for another day. For our purposes, we need to keep in mind
that we are talking about the secret searches of the homes of Americans
and not just wiretaps of foreign embassies.
It is from this perspective that the proposed amendments to FISA
must be examined.
The most disturbing provision in the administration draft bill is
the one permitting the government to initiate a FISA surveillance even
when the primary purpose of the government is to gather evidence for a
criminal prosecution. As I said, FISA authority was given to the
government for situations in which it was not seeking to indict
individuals for crimes, but rather to gather information for foreign
intelligence purposes. To now permit these procedures to be used in a
criminal investigation would almost certainly be unconstitutional and
would certainly be dangerous.
Whether the change in the law is from ``the'' to ``a'' or to
``significant'' the result is the same. The Executive would always be
able to use FISA to conduct surveillance whenever it believed that the
people being surveilled were agents of a foreign power thus
circumventing the notice and probable cause requirements of the Fourth
Amendment.
Any legitimate problem that the government has in this area can be
cured either by explicitly permitting exchanges between law enforcement
officials and those conducting a FISA surveillance or by permitting the
government to seek two warrants for the same surveillance, as the
Senate Intelligence Committee leaders have suggested.
A second problem with the administration bill is the effort to
permit the government to get warrants for six months or a year for FISA
searches of individuals it suspects are agents of a foreign power as it
now has for foreign powers themselves. Here again, some history may
help to explain why this provision was written as it was and why it
should not be changed.
When FISA was being debated in the Congress the shorter time limits
on warrants applied to all targets. The government pointed out that it
made no sense to go back so often if the target was, say, the Soviet
embassy. And so Congress agreed to permit longer warrants for foreign
powers themselves. Now the government seeks to bootstrap using this
difference to argue that it should not be required to seek frequent
warrants against agents of a foreign power. We need again to recall
that the government has been granted the authority to wiretap a person,
even an American citizen, or secretly break into his home and
surreptitiously remove his papers. It is not too much to ask that the
government return regularly to a specially selected judge in a separate
court with full security protections to demonstrate that it was right
in thinking that the target was an agent of a foreign power engaged in
illegal activity.
With the indulgence of the Committee I would like to comment on two
other matters raised by the Administration's draft.
The first relates to the provisions which permit the government to
share information gathered for law enforcement purposes, including
Title III surveillance and grand jury testimony, with intelligence
officials. Given the activities of terrorists who operate both in the
United States and abroad, I believe that such sharing is appropriate,
but I believe it needs to be limited in several ways. First, when the
information is gathered under judicial supervision, the court's
approval should be required for the transfer. Second, the information
transferred should be limited to Foreign Intelligence Information as
that term is defined in FISA. Third, the disclosure should be limited
to those officials who are directly involved in a terrorism
investigation. Finally, the information should be marked and
safeguarded so that these restrictions can be enforced, much as
classified information is marked and stored.
Finally, I want to comment on the extraordinary proposal to include
disclosure of the names of covert agents in the new list of federal
terrorism crimes. This is a speech crime which has no place in this
list. I was deeply involved in the development of this statute as well.
Again, although the administration, in this case as with FISA, both
Democratic and Republican, insisted on immediate action and no changes,
Congress deliberated carefully for several years. Before it enacted the
statute it insisted on a number of safeguards to insure that it would
not prevent the press from publishing information it had acquired by
legitimate means. For example, Congress inserted a bar on conspiracy
provisions so that a reporter could not be accused of conspiring with a
source. This protection and many others would be swept away if this
crime remains on the list of federal terrorism crime.
Mr. Chairman, there is an important lesson in the history of the
enactment of FISA and the Intelligence Agents Identities Act. It is
that if we take both national security and civil liberties seriously,
and if we work hard and take the time that we need we can find
solutions that protect them. The Congress deserves high praise for not
giving in to the administration's demand that it act first and read
later in the face of the unbelievable and unfathomable events of
September 11. We have gone very far in a very short time from the
administration's first draft. With a little more time and a little more
give and take, I believe we can arrive at a text which strikes an
appropriate balance. I urge you to stay at the task.
I commend the subcommittee for holding this hearing. I appreciate
the opportunity to testify and would be pleased to answer your
questions.
Chairman Feingold. Thank you, Dr. Halperin. That was very
clear and helpful. I appreciate your being here.
Our next witness is Professor John O. McGinnis. Professor
McGinnis teaches at the Benjamin N. Cardozo School of Law in
the City of New York. He holds degrees from Harvard University,
Oxford, and Harvard Law School. He served as Deputy Attorney
General of the Office of Legal Counsel at the Department of
Justice from 1987 to 1991.
I welcome you, Professor, and thank you, and you may
proceed.
STATEMENT OF JOHN O. MCGINNIS, PROFESSOR OF LAW, BENJAMIN N.
CARDOZO SCHOOL OF LAW, YESHIVA UNIVERSITY, NEW YORK, NEW YORK
Mr. McGinnis. Thank you very much, Senator Feingold, Mr.
Chairman, and I am very pleased to be here to speak about this
important issue of how to preserve our liberties in a time of
terrorism.
It is a question necessarily of a delicate balance between
giving tools to our national security agencies and law
enforcement, on the one hand, and preserving those civil
liberties, because ultimately we want to preserve all our
freedoms, not only our civil liberties, the ability to prevent
intrusions from the Government, but also our other liberties,
our liberty to live unharmed from the kind of atrocities that
happened on September 11.
Our Constitution understands that delicate balance. The
most important provision that is at issue with respect to law
enforcement matters, the Fourth Amendment, prevents
unreasonable searches and seizures. By using the word
``unreasonable,'' it invites a kind of balance that is
sensitive to the context.
The most important context to be reminded of here is the
distinction between mere law enforcement matters and national
security and war matters because there is no doubt that what
happened on September 11 was not simply thousands of murders.
It was, as many Members of Congress have acknowledged, an act
of war against the United States.
In the context of an act of war against the United States
and a foreign attack on the United States, necessarily what is
reasonable changes because the context has fundamentally
changed. In that regard, I think some of the provisions of this
bill perhaps have been a little unfairly criticized because
they don't take sufficient account of the national security
context.
Let me just begin very briefly with some of the changes to
FISA. The Supreme Court has always been very clear that its
decisions under the Fourth Amendment have never actually
applied in anything like full force to foreign intelligence-
gathering. Again, that is because of the different national
security context.
Once again, we have to be very careful that any of these
changes give these extraordinary authorities only in the
national security context. But as I read the bill, the
provisions would continue to require judges to make sure that
there is a national security collection purpose for every
gathering of intelligence authorized by FISA. That seems to me,
therefore, an entirely constitutional provision.
Indeed, not to expand FISA in this way, not to allow
intelligence-gathering whenever there is a purpose to gather
intelligence, would mean that some national security
collections would not be addressed because, of course, there
are some national security collections that also have very
substantial law enforcement benefits.
Under general principles of Fourth Amendment law, it does
not impugn a search so long as it has a justification--here,
the national security justification--if it has other beneficial
justification. So I do not see any constitutional problem with
the enlargement of that portion of the FISA authority.
Let me say a few words about the detention of aliens
provisions. I defer to Members of Congress and to those far
more expert in what our needs are to understand how far we need
to detain aliens for national security purposes. But once
again, there is a very strong distinction here between national
security and ordinary law enforcement purposes. We are not
talking about the detention of aliens for drug offenses and
things of that sort.
Previously in this country when there have been wars, it
has been quite well acknowledged from the first Congress that
enemy aliens can be detained because they do not have the
presumption of loyalty to the United States when another nation
state attacks.
Of course, we are in a very different kind of war. No
nation state has attacked us. We have been attacked by an
irregular militia, and it is very difficult to identify those
aliens within our midst who form that illegal militia. Of
course, most aliens in the United States, the huge majority,
are hard-working men and women who become American citizens,
and it would be utterly wrong to detain people simply because
they share the nationality of those people who hijacked the
planes. Therefore, we need some kind of finer-grained authority
that focuses simply on aliens who we have some reason to
believe pose some danger to national security.
So in conclusion, Mr. Chairman, I would say that it is very
important as you go forward with this bill to make a very
strong distinction between contexts. The Supreme Court, and
indeed common sense, recognizes that acts of war are very
different from a mere law enforcement matter and may justify
what are extraordinary measures, certainly measures that we
should never use in ordinary law enforcement matters.
Therefore, we have the FISA collection legislation, and
therefore in past times of war we have detained enemy aliens.
So we want to keep a very clear line. On the other hand,
there is no reason not to use this opportunity to rationalize
law enforcement authorities so long as we continue with the
usual principles that are applicable to law enforcement and not
to national security.
The Fourth Amendment speaks of reasonableness, and that
means that context is all. And the context has fundamentally
changed with the attacks on our country on September 11, and
the danger of biotechnology, nuclear and chemical warfare
against us. That doesn't mean we can't preserve our civil
liberties. It does mean that we have to take account of the
changed context in national security considerations.
Thank you, Mr. Chairman.
[The prepared statement of Mr. McGinnis follows:]
Statement of John O. McGinnis, Professor of Law, Benjamin N. Cardozo
School of Law, Yeshiva University, New York, New York
Thank you for the opportunity to testify on the ``Anti-terrorism
Act of 2001.'' This act deserves careful consideration as we attempt to
preserve all our liberties--both the freedom from unwarranted
intrusions by the government and the freedom to live and prosper
unharmed by the new enemy that threatens mass atrocities of a kind
previously unknown. This new threat to our national security raises
difficult issues, because the threat is both criminal and military, and
comes from enemies abroad and enemy aliens residing within our country.
For instance, it is widely agreed that the attacks on the World Trade
Center and Pentagon were acts of war that may require a military
response both to retaliate against the perpetrators and to prevent
similar atrocities. Yet they were also crimes committed on American
soil investigated by the FBI and other law enforcement agencies. These
investigations, in turn, may not only have law enforcement purposes but
diplomatic and military purposes as evidence is gathered and shared to
strengthen our coalition against terrorism.
Responding to this outrage and preventing similar outrages in the
future thus tests the line between domestic and foreign affairs--a line
that is important for civil liberties. In foreign affairs the federal
government must exercise our common strength on behalf of the nation to
defeat enemies bent on the destruction of the United States. This
defense has not been and cannot be constrained by the same restrictions
that properly apply to domestic law enforcement, particularly now when
our enemies are bent on using weapons of mass destruction against our
citizens and are delivering these weapons not by a uniformed force but
by a covert conspiracy of enemy aliens secreted throughout our
continent. At the same time as we address the grave threat from this
irregular militia, it is, of course, important not to allow the
extraordinary powers vested for national security purposes to be used
for mere law enforcement purposes.
Because the bill is as yet in draft, I will not comment on (or
endorse) in detail every provision but suggest instead that in its key
concepts the bill as whole adheres to a constitutional line between the
procedures appropriate to protect national security and those
appropriate for law enforcement. The principal exceptions in this bill
to the usual law enforcement requirements, such as warrants and
probable cause for search and seizure, are properly limited to a single
context--foreigners whose activities may undermine national security or
who associate with terrorist organizations. In particular the two
provisions of the bill that have been most criticized--the expansion of
the Foreign Intelligence Surveillance Act (FISA) and the detention of
aliens for national security reasons--fit within the conceptual
framework that allows the executive branch acting with congressional
approval to take action for the national security of the United States
beyond that which it can take for mere law enforcement purposes.
To begin with FISA, the Supreme Court has recognized that the
normal strictures of the Fourth Amendment may not apply in situations
involving the protection of national security against foreign powers
and their agents. Indeed, Justice White, concurring in Katz v. United
States, flatly stated that the warrant procedure and a magistrate's
judgment should not be required ``if the President of the United States
or his chief legal officer, the Attorney General, has considered the
requirements of national security and authorized electronic
surveillance as reasonable.'' Nevertheless, under FISA Congress has
decided to require that such surveillance of foreign powers or foreign
agents be authorized by district courts designated by the Chief Justice
of the United States. When approved by the Attorney General, the
government presents application for warrants to FISA judges under in
camera, ex parte procedures designed to safeguard intelligence
information.
The current bill makes relatively minor revisions to the procedures
for FISA application that make it easier to make expeditious requests
and do not undermine any safeguards. The one change of substance is to
permit FISA collection when foreign intelligence gathering is ``a
purpose'' of the surveillance. Previously such collection was permitted
only when such intelligence gathering was the sole or primary purpose
of the investigation.
This change is constitutional. First, as noted above, it is not at
all clear that FISA procedures are required at all when the President
or the Attorney General certifies that such collection is reasonable
given national security considerations. If one of the bona fide
purposes of the collection of information is to promote national
security, the collection is by definition reasonable in the national
security context.
Even more fundamentally, so long as collection has a bona fide
national security purpose (and FISA judges are available to make sure
that it does) its law enforcement benefits do not undermine its
national security justification. To claim otherwise would be to suggest
that action which is justified to protect our national security somehow
becomes illegitimate if it has other non-illicit, and possibly
beneficial, consequences. Moreover, without an expansion of the FISA
definition some national security objectives would go unaddressed,
because some national security collections may also have substantial
law enforcement benefits. Indeed, terrorist acts are simultaneously
crimes and profound threats to our national security and thus it would
be often difficult for the Attorney General or even a court to
determine whether the primary purpose of a collection is national
security or terrorism.
Finally, as a general matter of Fourth Amendment law, the Supreme
Court has ruled that it is not proper to impugn a search that is
legitimately justified for one purpose simply because the search has
other purposes. In a recent case, the Court upheld the search of a car
by a policeman who had cause to stop the car based upon a traffic
violation although he was also motivated by the belief that drugs were
in car. So long as a particular search is justified by a purpose
appropriate to that search, the search can legitimately serve other
purposes.
Now I turn to the indefinite detention of aliens if the Attorney
General has reason to believe that they will engage in activity that
endangers national security. It is important to note at the outset that
such detention authority is not asked for law enforcement reasons, like
drug interdiction. Once again the distinction between national security
and law enforcement is crucial to my analysis. Assuming that the Fourth
Amendment applies to national security actions, the government has
special needs unrelated to law enforcement that justify detentions
without individualized probable cause, because such actions are
reasonable to counter the threats that those resident aliens who become
terrorism's guerrillas pose to our national security. It is also
reasonable not to fix a definite period for detention of such an alien.
He can reasonably be detained until he can be deported or until the
threat that he will engage in actions threatening to national security
is abated.
The language of the Fourth Amendment is itself instructive: ``The
right of the people to be secure in their persons, houses, papers and
effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place
to be searched and the persons or things to be seized.'' Neither the
text of the amendment nor its history melds the two clauses into a
single provision. Nowhere does the Fourth Amendment say that all
searches and seizures conducted without the warrant and probable cause
required under the second clause are unreasonable under the first
clause. The two clauses are therefore properly viewed as distinct. As
the famous scholar, Telford Taylor noted, the Framers were concerned
about ``overreaching warrants'' and ``unreasonable searches and
seizures.''
The Court has thus declined to view the ascertainment of probable
cause or the issue of a warrant as the sine qua non of a reasonable
search and seizure. It has said: ``The test of reasonableness under the
Fourth Amendment is not capable of precise definition or mechanical
application. In each case it requires a balancing of the need for a
particular search against the invasion of personal privacy that the
search entails. Courts must consider the scope of the particular
intrusion, the manner in which it is conducted, the justification for
initiating it, and the place in which it is conducted.''
In particular, the Supreme Court has permitted searches and
seizures without a warrant or probable cause when the government has
important purposes other than enforcing the criminal law. Recently the
Court set out carefully its rational for searches and seizures without
warrant or probable cause. Conceding that warrants and probable cause
were generally required when only law enforcement matters were at
stake, the Court said that searches without warrants or probable cause
were constitutional ``when special needs, beyond the normal need for
law enforcement'' make the warrant and probable cause requirement
inappropriate. Once again the ultimate measure of the government
procedures is ``reasonableness.''
In this case the government has special national security needs
that are far greater than protecting the health of citizens or
enforcing the immigration laws--cases where special need searches have
been upheld. Consequently the justification for intruding on
individuals is commensurately greater. Indeed, in a world where alien
terrorists have used weapons of mass destruction, as they did against
the United States on Sept. 11, and where they have the capacity to use
even more devastating weapons, such as biological, chemical and nuclear
weapons, the United States has extraordinary needs beyond simple law
enforcement that may well be defeated by requiring probable cause for
detaining aliens. Even if the government does not have the substantial
proof required to show probable cause that aliens are engaged in a
terrorist conspiracy or have information about such a terrorist
conspiracy, the consequences may now be so catastrophic to the health
and safety of citizens as to justify holding such aliens in detention
on a less demanding ``reason to believe'' standard.
Another way of understanding the reasonableness of this standard is
to reflect on the military nature of the threat. If a military group of
saboteurs infiltrated the United States in wartime, we would not be
required to extend them all the courtesies of the Bill of Rights as we
try to find and hold them. The United States now faces worse threats
constituted by a group of non-uniformed belligerents who are aiming at
mass destruction of civilians. Although these acts take place in our
country, the simple law enforcement model for controlling these acts is
as inapposite as if we applied it to military saboteurs.
We should also note that this authority is appropriately limited to
aliens. Unlike citizens, aliens have not taken an oath of loyalty to
the United States. Thus, in wartime enemy aliens are ordinarily
detained for the duration of hostilities. The constitutionality of this
practice has not been questioned by the courts. Let me be clear that I
would repudiate any attempt to detain citizens simply because they
share the country of origin of enemy aliens. Naturalized citizens,
whatever their country of origin, have every bit as much of a
presumption of loyalty as citizens born in the United States. It is
possible to support the constitutionality of this new authority for the
Attorney General and to reject, as I do, the holding of Korematsu v.
United States where the Court upheld the internment of citizens of
Japanese ancestry during World War II without any showing that they
were disloyal to the United States.
Today we are right to presume the loyalty of our citizens but we
still face the problem of enemy aliens in our midst. But because no
foreign nation state is prosecuting the war against us, we cannot
determine the identity of potentially alien enemies through the old
category of the alien's nation state. Nevertheless these enemy aliens
are even more dangerous because they, and not others from their home
countries, are the main vectors of attacks on the United States. And
unlike previous wars, they may have ready access to weapons of mass
destruction targeted at civilians. In these circumstances, it is
reasonable to provide the Attorney General with authority to find and
detain the relatively few aliens who are our potential enemies. This
new kind of alien detention authority is proportionate to the new kind
of war we face.
The Supreme Court has held that Congress has very substantial power
in immigration matters. It is well-established that ``over no
conceivable subject is Congress's power more complete.'' To be sure,
the Court recently interpreted Congress not to have authorized
indefinite detention of deportable aliens in light of the serious
constitutional questions that it would raise. But once again the Court
expressly carved out consideration of national security matters from
the scope of its constitutional concerns. It stated: ``Neither do we
consider terrorism or other special circumstances where special
arguments might be made for forms of preventive detention and for
heightened deference to the judgments of the political branches with
respect to matters of national security.''
Some have argued that the authority to detain aliens should not
extend to those who are not flight risks. With respect, flight risk is
not the only reason for detention. In a war situation, enemy aliens can
pass information to one another in a network. The risk is the same in
terrorist networks. Other provision of the bill have drawn objections
as well. I do not have the space to address all the objections, but
many can be addressed under the framework here. For instance it is
appropriate to share grand jury information with government personnel
to counter threats to national security. Such sharing, in the words of
Alexander Hamilton, puts forward ``our common strength for the common
defense.''
Other provisions of the bill simply rationalize the law enforcement
model in light of changing circumstances. Pen registers have been
upheld as applied to telephones, because according to the Supreme Court
individuals have no reasonable expectation of privacy in the numbers
they call because that information has been provided to the telephone
company. Similarly, the routing and addresses of websites that
individuals access over the Internet is available to their Internet
providers. It is thus appropriate that they be made available under the
same standards as pen registers for telephones. Particularly given the
convergence of various forms of communications, failure to include
Internet addresses and routing under the same standards as numbers
would eventually make the pen register an obsolete device in the
toolbox of law enforcement.
In conclusion, I would stress that many of these new provisions
would simply rationalize previously existing law enforcement
authorities. Such rationalization is a good idea at any time, but
particularly at this time. On the other hand, the principal
extraordinary authorities granted by the bill are appropriately limited
to protecting national security and defending against the acts of war,
not mere criminal lawbreaking, that all acknowledge now threaten the
United States.
Chairman Feingold. Thank you, Professor McGinnis.
Our next witness will be Jerry Berman, from the Center for
Democracy and Technology. Mr. Berman is currently the Executive
Director for the Center, and he has written widely on the
complex civil liberties issues surrounding electronic
communications. He has also served on the Child Online
Protection Commission in 1999, studying methods for protecting
children from objectionable material on the Internet that would
be consistent with constitutional values.
We appreciate your willingness to share your expertise
today and you may proceed.
STATEMENT OF JERRY BERMAN, EXECUTIVE DIRECTOR, CENTER FOR
DEMOCRACY AND TECHNOLOGY, WASHINGTON, D.C.
Mr. Berman. Thank you, Mr. Chairman, and I again commend
the committee on behalf of our organization for holding this
hearing. It is critically important.
I also shared in the negotiations of the Foreign
Intelligence Surveillance Act in 1978. I try to take it out of
my resume to try not to date me, but I worked with Mr. Halperin
and others. What was different is that we had a negotiation
between civil libertarians, the Justice Department and Hill
people to fine-craft this legislation.
If we do not fine-craft the legislation that is in front of
us, I am afraid that what Mr. Halperin says is that the law
between law enforcement and intelligence which was set up after
Watergate, and by the way not in a time of peace, but in the
middle of the Cold War, et up to avoid what happened during
Watergate under J. Edgar Hoover--secret intelligence and broad
intelligence--we wrote those restrictions to create that wall
and I do not believe that wall has to come down.
The Senate Intelligence Committee has recommended that you
can continue a primary purpose intelligence investigation which
is secret, never disclosed to the witness, never disclosed to
the target even if they are never convicted of a crime, and at
the same time open a Title III warrant. You can continue under
both tracks for your criminal and continue under your
intelligence track, and if that requires more cooperation
between law enforcement and the intelligence agencies over
which information goes in which pot, that is something we would
support. The cooperation is obviously necessary, so why don't
we look at a dual track?
Let me turn to the Internet and some of the high-technology
provisions where the Justice Department says they are simply
trying to bring those into the modern age. If you listen to
them talk about these sections--and I spent two hours with the
Justice Department on pen registers yesterday--they say, for
example, under pen registers they are only interested in the
equivalent of a telephone dialed number. That is why there is a
low standard; you get the digits.
But on the Internet, those digits turn into content, the
subject line, the ``to/from'' line, URLs, and possible Web-
browsing on the Internet. They say ``we don't intend that.'' I
say, well, then why have you added this new language to the
bill? We have to understand that language. They say ``but that
is not our intent.'' But those people in that room may not be
here four years from now.
Viet Dinh, the leader of the Justice Department task force,
said yesterday at the Internet caucus briefing, ``I do not
believe in legislative history. It has to be on the plain face
of the statute.'' So we have to read a plain text and
understand what it means, and if you read the plain text, pen
registers covers content. And I believe it needs to be, if we
are going to deal with plain text, scaled back to only cover
the IP address or the equivalent of dialed telephone numbers.
In a multi-tap, roving wiretap, yes, you should put it
under FISA, but it should be tied to a computer, if you are
trying to get beyond phones, or any device which is under the
control of the target. It shouldn't be any computer that that
person may use. That is a sweeping authority.
I also call your attention to a computer trespass section,
105, which we did not pay attention to. It was the Senate
Judiciary Committee who called our attention to it and said, do
you want to read this again? We thought it was trespassing onto
a computer service, unauthorized trespassing, to engage in
delay of service and such things, where the ISP invites them on
to do a surveillance.
That is a narrow emergency circumstance which is justified
where you turn over information which you would otherwise get a
warrant for. They do not limit it that way. They say anyone who
has unauthorized access to a computer, with the permission of
the ISP, you can collect all of their e-mail, all of their
communications, and so forth, on the Internet without going
through ECPA, which is the Title III warrant requirement for
the Internet.
It is a major walk-around the statute that Senator Leahy
drafted with others in 1986, which I also worked on. We have to
put the language in that limits it to extreme circumstances or
emergency circumstances. Otherwise, a business office owner--
the FBI says we suspect he is engaging in money laundering on
his computer. Be my guest, take all their records, without
requiring them to go down and get a Title III warrant for
electronic mail which is private communications.
The same could happen at AOL or Microsoft, where you go
down and say there is an unauthorized use going down. Will you
give us permission to use your network? The service provider
says we will just say no. You are going to say no to the FBI?
You are not going to say no to the FBI. And they are asking for
civil damages immunity under this statute so that if they say
yes at the wrong time, they won't be liable. But it will give
our intelligence agencies too much authority.
My final point, and I could go on and on. The issue is in
many cases fine-tuning, but fine-tuning requires a negotiation.
Fine-tuning requires getting experts to sit across a table and
say let's translate what you are saying--you don't mean to do
this--into the language of the statute. Unless that happens, we
will have brought down the wall that exists that we built post-
Watergate, and I think we will rue the day that we did it. You
cannot pass legislation like that and say you have balanced
national security and civil liberties. You might as well say
you have suspended them for a period of time and be honest
about it.
I don't think you on this ommittee want to do that. I think
we can work with you. I am urging you to take the time to do
it. Grover Norquist again said we can't find one restriction
that impeded or caused or led to the disaster that befell us on
September 11. Let us take another week and negotiate and
discuss.
Thank you very much.
[The prepared statement of Mr. Berman follows:]
Statement of Jerry Berman, Executive Director, Center for Democracy and
Technology, Washington, D.C.
Thank you for the opportunity to testify at this hearing on the
momentous question of improving our nation's defenses against terrorism
in a manner consistent with our fundamental Constitutional liberties.
CDT joins the nation in grief and anger over the devastating loss
of life resulting from the September 11 terrorist hijackings and
attacks against the World Trade Center and the Pentagon. Like many, our
relatively small staff had friends and acquaintances killed in those
heinous acts. We strongly support the efforts of our government to hold
accountable those who direct and support such atrocities.
We know from history, however, that measures hastily undertaken in
times of peril--particularly measures that weaken controls on
government exercise of coercive or intrusive powers--often infringe
civil liberties without enhancing security. For that reason, we harbor
serious reservations about several bills currently under discussion in
this Subcommittee and elsewhere on Capitol Hill. In particular, we are
deeply concerned about the Administration's proposed ``Anti-Terrorism
Act of 2001'' (ATA). A recently-circulated alternate package, the
Conyers-Sensenbrenner ``Provide Appropriate Tools Required to Intercept
and Obstruct Terrorism (PATRIOT) Act,'' removes or changes a very few
concerns in ATA, but retains most of the provisions damaging to civil
liberties. The concerns we raise in this testimony, unless otherwise
noted, apply equally to both bills.
We are deeply concerned about the impact of these bills on
constitutional liberties, most particularly in two areas.
First, the ATA and PATRIOT Act tear down the ``wall'' between the
government's authority to conduct counter-intelligence surveillance
against foreign powers and terrorist groups, and its authority to
conduct criminal investigations of Americans. In the post-Watergate
era, Congress carefully constrained the government from inappropriately
mixing its foreign intelligence and law enforcement capabilities, since
such mixing would greatly infringe Americans' constitutional freedoms.
The current bills eviscerate that division. Both would change the
``primary purpose'' standard that permits exceptional surveillance but
only when counter-intelligence is ``the'' primary purpose of an
investigation. Instead, the bills would make these extraordinary powers
open to all investigations in which counter-intelligence is ``a'' (or,
in the PATRIOT Act, ``a significant'') purpose (Sec. 153). As a result,
they would permit law enforcement to use constitutionally suspect
surveillance techniques--secret searches, bugs, and wiretapping--
against Americans in criminal investigations without the protections
that Congress originally intended. Besides damaging the civil liberties
of law-abiding Americans who may have their communications subjected to
secret interception, the bill raises the possibility that criminal
prosecutions pursued in this way could be thrown out on constitutional
grounds.
At the same time, the ATA and PATRIOT Act allow data collected in a
criminal investigation to be shared widely, without judicial review and
regardless of whether those activities serve a law enforcement or
counter-intelligence purpose (Sec. 154). This would include the content
of Title III wiretaps and evidence presented to grand juries, both of
which are traditionally protected under law. Such a revision to the law
would permit such troubling activities as the development by the CIA or
other intelligence agencies of dossiers for Americans not suspected of
any criminal activity.
Second, the ATA and PATRIOT Act broadly expand the government's
ability to conduct electronic surveillance and diminish the rights of
Americans online. The most problematic sections in this regard are:
Section 101. Pen Register and Trap and Trace Authority.
Both ATA and PATRIOT would extend to the Internet the current,
extremely permissive authority to collect telephone numbers dialed to
or from a specific telephone line. But as drafted for Internet, this
proposal would provide the government with much more detailed
information about a monitored user. It would include not only e-mail
addresses, but also URLs detailing activities such as search queries,
books browsed, and online purchases. Those monitored do not need to be
under investigation, and judges must issue these orders upon a showing
of mere relevance, not probable cause.
Section 106. Interception of Computer Trespasser
Communications. Both ATA and the PATRIOT Act (Sec. 105) say that anyone
accessing a computer ``without authorization'' has no privacy rights
and can be tapped by the government without a court order, if the
operator of the computer system agrees. This provision eviscerates
current protections for electronic communications. Relatively minor
violations of an ISP's terms of service--such as using foul language or
downloading a copyrighted MP3 file--would allow an ISP to turn over all
of that person's communications.
A range of other provisions further expand the government's
surveillance authority, including:
Section 152. Multi-Point Wiretap Authority. Authorizes
FISA ``roving'' wiretaps, but without necessary guidelines or
restrictions on this constitutionally-suspect authority. Thus, if a
surveillance target is suspected of using a library computer, then all
communications from that library computer might be monitored.
Section 155. Pen Register/Trap and Trace Controls.
Eliminates the only meaningful statutory control that exists on use of
pen registers and trap and trace devices in intelligence cases.
Section 154. Foreign Intelligence Information Sharing.
Permits distribution of information gathered in criminal
investigations--including grand jury information and Title III
wiretaps--to a huge number of government employees not involved in law
enforcement.
Section 156. Business records. Allows access to any
business records upon the demand of an FBI agent for intelligence or
terrorism investigations with no judicial review or oversight.
Section 157. Miscellaneous national-security authorities.
Amends several key privacy laws, allowing much greater access to
banking, credit, and other consumer records in counter-intelligence
investigations, with no judicial review.
Mr. Chairman, we commend you and the Subcommittee for holding this
hearing, and taking the time to consider the legislative proposals put
forth by the Administration. Only through the hearing process can you
and the American public understand what is being proposed, how it would
change current law, and whether the changes are responsive to any
deficiencies that the September 11 attack may have revealed. Just as
President Bush and his military advisers are taking their time in
planning their response, to ensure that they hit the terrorist targets
with a minimum of collateral damage, so it is incumbent upon this
Congress to avoid collateral damage to the Constitution.
The Center for Democracy and Technology is a non-profit, public
interest organization dedicated to promoting civil liberties and
democratic values for the new digital communications media. Our core
goals include enhancing privacy protections and preserving the open
architecture of the Internet. Among other activities, CDT coordinates
the Digital Privacy and Security Working Group (DPSWG), a forum for
more than 50 computer, communications, and public interest
organizations, companies and associations working on information
privacy and security issues.
Context: Law Enforcement and Intelligence Gathering Authorities
As you well know, the current legal structure of the intelligence
community was established after Watergate both to improve intelligence
and to ensure that the rights of Americans were not eroded by the vast
and sometimes vague intelligence authorities that had previously
existed. The legal and oversight system for intelligence sprang not
just from a concern about civil liberties, but also from a concern
about improving the efficacy of intelligence gathering.
A number of the provisions of the Attorney General's bill would
change provisions of the Foreign Intelligence Surveillance Act of 1978
(FISA). As the Subcommittee is well aware, FISA gave the FBI and the
CIA extremely broad authority to investigate terrorism and to conduct
counter-intelligence not only against foreign nationals here in the
U.S., but also against American citizens suspected of involvement with
terrorist groups. Unlike criminal law, where high standards of
government conduct vigorously protect constitutional rights, FISA makes
a special exemption for the intelligence community, permitting it to
place wiretaps, install bugs, and conduct secret searches without
showing probable cause of criminal conduct, giving notice, or even
turning the results of the surveillance over to a court for later
review. Through FISA, our intelligence community has authority to
investigate a sweeping array of individuals and organizations, and
through such investigations to defend against acts of terrorism.
Congress designed the FISA statute to be effective, but it
recognized that such broad investigative powers, if misapplied, could
threaten Americans' constitutional rights. Congress therefore demanded
that the powers bestowed by FISA be strongly contained, and that a
clear separation--a wall--be erected between the unique and broad
standards for surveillance described in FISA, and those used in the
rest of the criminal justice system. In particular, Congress wanted to
ensure that surveillance under FISA would not be initiated for the
purpose of criminal investigations, since such would circumvent the
careful protections built into the criminal system. Rules were
installed that carefully constrained FISA's usage, and the ``wall''
precluded information collected through FISA investigations from being
used in criminal ones except in cases where the surveillance was
initiated and maintained for broader foreign intelligence purposes.
Comments on Administration Proposals
The ATA and the PATRIOT Act would expand already-broad federal
government authorities to conduct electronic surveillance and otherwise
collect information not only on foreign nationals but on American
citizens, while sidestepping constitutional protections. As described
above, the bills do not adequately control that expansion, and as a
result they damage civil liberties in two ways.
Both bills would change the ``primary purpose'' standard that
permits FISA's exceptional standards to be used only when counter-
intelligence is ``the'' primary purpose of an investigation. Instead,
the ATA and PATRIOT Act propose to open FISA to all investigations in
which counter-intelligence is ``a'' (or, in the PATRIOT Act, ``a
significant'') purpose (Sec. 153). Such a change clearly threatens the
``wall'' Congress erected between the government's normal police
authority and its special counter-intelligence powers, with the end
result of substantially reducing American's constitutional protections
before the government. The ATA and PATRIOT Act would thus permit law
enforcement to use constitutionally suspect surveillance techniques--
secret searches, bugs, and wiretapping--against Americans in criminal
investigations without the protections that Congress originally
intended. Besides damaging the civil liberties of law-abiding Americans
who may have their communications subjected to secret interception, the
bill raises the possibility that criminal prosecutions pursued using
FISA could be thrown out on constitutional grounds.
At the same time, the ATA and PATRIOT Act allow data collected in a
criminal investigation to be shared widely and used for any number of
activities, without judicial review and regardless of whether those
activities serve a law enforcement or counter-intelligence purpose
(Sec. 154). Information that could be shared would include the content
of Title III wiretaps and evidence presented to grand juries, both of
which are traditionally protected under law. Certainly, the
government's law enforcement and intelligence communities should be
encouraged to work together, but the terms of their cooperation should
be carefully defined, with, standards that serve the dual purposes of
national security and civil liberties.
Such a lack of controls on the government's ability to share and
distribute information about American citizens--no matter the purpose
for which it was collected--leads to a situation in which entire
communities (such as the American Islamic community) might have a
surveillance net cast over them by the government's counter-
intelligence arm. It leads to the possibility that American citizens
disagreeing with the policies of a sitting Administration would have
their activities monitored and logged, and dossiers created for them at
the CIA or FBI. And it creates the risk that, in our desire for a
nation as secure in the future as it has been in the past, we might
sacrifice the elements of freedom that made this country as strong as
it is.
Even as the ATA and PATRIOT Act alter the division between FISA and
the government's normal police powers, they also include numerous,
complex provisions extending the surveillance laws, particularly
regarding the Internet, even as both bills raise many questions about
how such provisions will be implemented. Many of the changes are not
related to security concerns raised by the September 11 terrorist
attacks. Many are not limited to terrorism cases, but relate to
criminal investigations. Some have been proposed by the Justice
Department before, and some have been rejected by Congressional
committees before, based on their breadth and their impact on liberty.
The proposed language includes sweeping revisions such as a
modification of the pen register standard that would allow the
government to intercept the content of some Internet communications
without any fourth amendment protection (Sec. 101) and a new authority
for Internet Service Providers (ISPs) to authorize government
surveillance of their users' Internet connections (Sec. 106 in ATA,
Sec. 105 in PATRIOT Act). Other changes include the so-called ``roving
wiretap'' authority (Sec. 152), which would permit the government to
intercept, for example, all Internet communications coming from a
public Internet terminal (no matter who is using it) if a suspected
terrorist is seen using that terminal.
As technology develops, so too should the government's ability to
carry out its law enforcement and counter-terrorism functions. But
injudicious changes such as those proposed in the ATA and the PATRIOT
Act threaten basic freedoms guaranteed by the constitution. We
therefore urge this Subcommittee and the law enforcement and
intelligence communities to take a more limited, surgical approach to
expanding government powers, both online and off.
A more detailed analysis of the Administration's bill follows
below. Once again, we appreciate and commend this Subcommittee's
efforts to gather public input and to hold this hearing today. We hope
the Subcommittee will move forward with those provisions of its bill
and the Administration's bill that are non-controversial and responsive
to the tragic attacks of September 11, but will defer on the other more
complex and divisive provisions that we have identified. We look
forward to working with the Subcommittee and staff to craft an
appropriate response at this perilous moment in our country's history,
and to avoid a rush to judgment on legislation that could ultimately
imperil both freedom and security.
Extended Analysis of Administration Bill
The Administration's bill has two kinds of provisions that give
rise to concerns: those that would lower the standards for government
surveillance and those that address the difficult question of
information sharing.
In terms of collection standards, our law enforcement and
intelligence agencies already have broad authority to monitor all kinds
of communications, including email. Both the criminal wiretap statute
and the Foreign Intelligence Surveillance Act already cover terrorism.
For some time, it has been recognized that those standards need to
strengthen the standards for government surveillance. We see no
justification for the changes proposed in the Administration bill that
weaken those standards. We are particularly opposed to changes that
would eliminate the judicial review that can be the most important
protection against abuse.
The Foreign Intelligence Surveillance Act allows the FBI to conduct
electronic surveillance and secret physical searches in the US,
including surveillance of US citizens, in international terrorism
investigations. FISA also authorizes court orders for access to certain
business records. As you know, the standards under FISA are much lower
than the standards for criminal wiretaps, and in return, the
surveillance is supposed to be focused on the collection of
intelligence, not criminal evidence. The FISA court, which last year
approved more than 1000 surveillance requests, has denied only one
request in its 22 year history.
Distinct from the Administration's unsupportable desire to avoid
judicial controls on its authority, perhaps the central and most
important problem facing the Congress is the question of information
sharing. For many years, this has been recognized as a very difficult
question; it is one that will be especially difficult to resolve
satisfactorily given the pressure-cooker atmosphere of this time. We
want to work out a balanced solution. But it cannot be done by wiping
away all rules and barriers. Any solution needs to preserve the
fundamental proposition that the CIA and other intelligence agencies
should not collect information on US citizens in the US.
Section 101. Modification of Authorities relating to Pen
Registers and Trap and Trace Devices
Expands, in vague and potentially broad terms, the government's
ability to get information about Internet communications under a loose
standard. Also allows any magistrate in the country to issue a pen
register or trap and trace order that can be served multiple times,
anywhere in the country.--The government claims that it already has
authority to collect, under the very weak provisions of the pen
register and trap and trace statute, transactional data about Internet
communications. But the existing statute, intended to collect telephone
numbers, is vague as applied to the Internet. Section 101 compounds the
vagueness. It would add the words ``addressing'' and ``routing'' to the
description of what pen registers and trap and trace devices collect.
What do these words mean?
We are concerned that the provision would be cited as expanding the
scope of what the government collects, creating a more intrusive form
of surveillance. Internet addressing information can be much more
revealing than phone numbers and might include information about the
content of communications; a URL, for example, which may fit the
proposed statutory definition of ``addressing'' information, may
include a specific search term entered into a search engine or the
title of a specific book bought at Amazon.com. The bill provides no
details on how this content would be separated from other addressing
information. This provision is constitutionally suspect as it could
allow government access to content information with minimal judicial
oversight, specifically prohibited in a recent DC Circuit Court ruling.
(See USTA v. FCC.)
The standard for pen registers is so low as to be meaningless:
people whose communications are targeted need not be suspected of any
crime; probable cause is not required, only mere ``relevance'' to some
ongoing investigation; courts have no authority to review these orders.
Before extending nationwide scope to these orders, the process for
their approval needs to be given some meaningful judicial approval.
Congress now should use the language approved by the House Judiciary
Committee last year in H.R. 5018.
Section 103. Authorized Disclosure
Allows disclosure of information obtained from wiretaps with any
executive branch official. This is clearly too broad, especially in
light of the vague language in 18 USC 2517 that allows sharing when
appropriate to the proper performance of the duties of the official
making or receiving the disclosure. The issue of greatest concern to us
is that the CIA and other intelligence agencies would begin compiling
files on US persons. This provision should be narrowed, so that it
authorizes disclosures to personnel with intelligence, protective,
public health or safety, or immigration duties, to the extent that such
disclosure is related to proper performance of the official duties of
the officer receiving the disclosure, and with the proviso that nothing
therein authorizes any change in the existing authorities of any
intelligence agency. (Rather than amending the definition section of
Title III, it might be better to build these concepts directly into
section 2517.)
Section 105. Use of Wiretap Information from Foreign
Governments. (Deleted from PATRIOT Act)
Allows use of surveillance information from foreign governments,
even if it was seized in a manner that would have violated the Fourth
Amendment. Section 105 makes surveillance information collected about
Americans by foreign governments (so long as U.S. officials did not
participate in the interception) admissible in U.S. courts even if such
interceptions would have been illegal in the U.S. Such a provision is
ripe for abuse and provides unhealthy incentives for more widespread
foreign surveillance of U.S. individuals; we commend its removal from
the PATRIOT Act.
Section 106. Interception of Computer Trespasser
Communications
Allows ISPs to waive their customers privacy rights and permit
government monitoring whenever customer violates terms of service. This
provision says that a person accessing a computer system without
authorization has no privacy rights. If an ISP's terms of service
prohibited use of the Internet account for illegal purposes, then the
ISP could authorize government monitoring whenever the ISP was told by
the government that a customer might be doing something illegal. If a
customer was suspected, for example, of downloading music that was
copyrighted, the ISP could ask the government to monitor all the
person's Web activities. This proposal would swallow the entire wiretap
statute as applied to the Internet, relieving the government of ever
having to get court approval to read e-mail.
Section 151. Period of Orders of Electronic Surveillance
of Non-United States Persons Under Foreign Intelligence Surveillance.
Allows secret searches and electronic surveillance for up to one
year without judicial supervision. Under current law, the FISA Court
can order a wiretap of a ``non-US person'' for a period of 90 days,
after which the government must report to the court on the progress of
the surveillance and justify the need for further surveillance. The
court can authorize physical searches for up to 45 days. The amendment
would extend both time frames to one year, meaning that after the
government's initial ex parte showing there would be no judicial review
for one year. We think this is too long. We recommend that the current
time frames be retained for the initial approval. (After all, they are
already far longer than the 30 days for which criminal wiretaps,
including criminal wiretaps in terrorism cases, can be approved.) If,
after 90--days of electronic surveillance or 45 days of physical
searches, the government can show a continuing justification for the
surveillance or search authority, then we would agree that the court
could authorize a longer surveillance. We would recommend one year for
electronic surveillance, 180 days for physical searches (thus
preserving the current law's recognition that physical searches are
more problematic than electronic searches and need to be authorized for
shorter periods of time).
Section 152 Multi-Point Authority.
Allows roving taps, including against US citizens, in foreign
intelligence cases with no limits--ignoring the Constitution's
requirement that the place to be searched must be ``particularly
described.'' This section purports to afford the FBI ``roving tap''
authority for intelligence investigations similar to what already
exists for criminal investigations. See 18 USC 2518(11). A roving tap
allows the government to intercept whatever phone or email account a
suspect uses, even if the government cannot specify it in advance.
Roving tap authority is constitutionally suspect, at best, since it
runs counter to the Fourth Amendment's requirement that any search
order ``particularly describe the place to be searched.'' However, the
proposed language places no limitation on the exercise of the roving
tap authority and offers the FBI no guidance for its exercise. The
proposed change merely authorizes the court to issue to any ``person''
an order commanding them to cooperate with a surveillance request by
the government. If roving tap authority is supposed to focus on the
targeted person, not on the telephone instrument, then the intercept
authority should be limited to the target--it should only allow
interception of communications to which the target of the surveillance
is a party. Such limitations are absent from this proposal.
Section 153. Foreign Intelligence Information
Allows the FBI to collect evidence for criminal cases under the
looser standards of foreign intelligence investigations--an end-run
around the relatively stringent requirements for wiretaps in Title III.
This section, which merely changes the word ``the'' to ``a,'' would
actually make a fundamental change in the structure of the wiretap
laws. It would permit the government to use the more lenient FISA
procedures in criminal investigations which have any counter-
intelligence purposes and would destroy the distinctions which
justified granting different standards under FISA in the first place.
Under existing law, FISA can be used only if foreign intelligence
gathering is ``the'' purpose of the surveillance. The proposed
provision would permit FISA's use if this is ``a'' purpose, even if the
primary purpose was to gather evidence for a criminal prosecution. This
is an extraordinary change in the law which has no justification.
Section 154. Foreign Intelligence Information Sharing
With no standards, permits the sharing of grand jury information,
Title III wiretap information, and any other ``foreign intelligence
information'' acquired in a criminal case with many different federal
officials not involved in law enforcement. This is a sweeping change in
the law. ``Foreign intelligence information'' is not defined. The
provision places no limits on the purpose for which the information may
be shared, and no limit on its reuse or redisclosure. It requires no
showing of need and includes no standard of supervisory review or
approval. As written, a criminal investigator could share with White
House staff information collected about foreign policy critics of the
Administration. The provision, at the very least, should be drastically
curtailed.
Section 155. Pen Register and Trap and Trace Authority
Eliminates the only meaningful statutory control that exists on use
of pen register and trap and trace devices in intelligence cases. The
law currently requires a showing that the person being surveilled is a
foreign power, an agent of a foreign power or an individual engaged in
international terrorism or clandestine intelligence activities. This
amendment would eliminate that standard and permit the use of FISA for
pen registers whenever the government claimed that it was relevant to
an ongoing intelligence investigation. Contrary to the DOJ's assertion
in its section-by-section, this is not the same as the standard for pen
registers in criminal cases. There, the surveillance must be relevant
to an ongoing criminal investigation, which is moored to the criminal
law. There is no similar constraint on foreign intelligence
investigations, since they can be opened in the absence of any
suspicion of criminal conduct. This provision ignores the fact that the
government was granted the special rules of FISA only for situations
that involved intelligence gathering about foreign powers.
Section 156. Business records
Allows access to any business records upon the demand of an FBI
agent, with no judicial review or oversight. Traditionally, the FBI had
no ability to compel disclosure of information in intelligence
investigations. The compulsory authorities were limited to criminal
cases, where the open, adversarial nature of the system offered
protections against abuse. For example, in criminal cases, including
international terrorism cases, the FBI can obtain grand jury subpoenas,
under the supervision of the prosecutor and the court, where the
information is relevant to a criminal investigation. The FBI has no
ability to invoke the power of the grand jury in intelligence
investigations, since those investigations are conducted without regard
to any suspicion of criminal activity. In 1998, in an expansion of
intelligence powers, FISA was amended to give the FBI a new means to
compel disclosure of records from airlines, bus companies, car rental
companies and hotels: Congress created a procedure allowing the FBI to
go to any FISA judge or to a magistrate. The FBI had only to specify
that the records sought were for a foreign intelligence or
international terrorism investigation and that there were specific and
articulable facts giving reason to believe that the person to whom the
records pertain is an agent of a foreign power. This is not a
burdensome procedure, but it brought the compulsory process under some
judicial control. The Administration's bill would repeal the 1998
changes and permit the use of ``administrative subpoenas'' rather than
an application to a court to get any business records under FISA. An
administrative subpoena is a piece of paper signed by an FBI agent.
There is no judicial review, no standard of justification, no
oversight. Particularly in intelligence investigations, which are not
even limited by the scope of the criminal law and in which there is no
involvement of the US Attorney's Office, FBI agents should not have
such unreviewable discretion to compel disclosure of personal
information.
Sec. 157. Miscellaneous national-security authorities
Allows much greater access to banking, credit, and other consumer
records in counter-intelligence investigations. Current provisions of
law allow the federal government to obtain sensitive banking, credit,
and other consumer records under the relaxed and secretive oversight of
FISA--but only when there are ``specific and articulable'' facts
showing that the target consumer is ``a foreign power or the agent of a
foreign power.'' Section 157 would eliminate these essential
requirement, mandating disclosure of this sensitive consumer data
simply if an FBI official certifies that they are needed for a
counterintelligence investigation (and with an ex parte court order for
access to credit reports). Section 157 would eliminate the ``agent of a
foreign power'' standard in-
The Fair Credit Reporting Act, allowing access to
records from consumer reporting agencies (including the names
of all financial institutions where accounts are held, all past
addresses and employers, and credit reports);
the Financial Right to Privacy Act, broadly allowing
access to financial records; and
the Electronic Communications Privacy Act, allowing
access to telephone and toll billing records, and, newly added,
all ``electronic communication transactional records.''
As such, the Section would greatly increase access to the personal
information of consumers or groups who are not agents of foreign
powers. And in each case access the institutions granting access to
consumer information would be prohibited from disclosing that
information or records had been obtained.
Section 158. Disclosure of educational records
Amends the law protecting education records to permit access to
them. While this might be justified in terrorism cases, the provision
covers all cases involving ``national security'' and is far too
sweeping.
Section 159. Presidential Authority.
Does not appear to permit judicial challenge to seizure of
property. At the very least, there must be such opportunity. A second
provision allows the use of secret evidence. Use of such evidence, if
ever permitted, must be on a much higher standard than that the
information is properly classified, as provided here. The government
must be required to persuade a court that the disclosure to the party
would result in imminent and serious harm and the court must require
the government to provide sanitized information to the party.
Section 352. Notice. Deleted from the PATRIOT Act.
Allows secret searches of homes and offices. For any warrant or
court order to search or seize property relating to a federal criminal
offense, notice of the search or seizure could be delayed if it could
interfere with lawful investigations. Notice is a bedrock Fourth
Amendment protection from mistaken or abusive searches and seizures.
Delayed notice has been allowed in only the most extraordinary
circumstances, such as wiretapping, and only with substantial judicial
supervision. Section 352 represents a major erosion of this key Fourth
Amendment requirement of notice.
Chairman Feingold. Thank you very much, Mr. Berman.
We will now hear from Dean Douglas Kmiec, of the Columbus
School of Law at the Catholic University of America. In
addition to his extensive academic qualifications as a
constitutional law scholar, Dean Kmiec served as head of the
Office of Legal Counsel in the Department of Justice from 1985
through 1989.
Dean, thank you for coming and you may proceed.
STATEMENT OF DOUGLAS W. KMIEC, DEAN AND ST. THOMAS MORE
PROFESSOR OF LAW, COLUMBUS SCHOOL OF LAW, CATHOLIC UNIVERSITY
OF AMERICA, WASHINGTON, D.C.
Mr. Kmiec. Thank you, Senator. I appreciate your including
my entire statement in the record. It is a privilege to be here
to address this important subject.
The events of September 11, I believe, are ever-present in
the minds of American citizens. For thousands of families, a
husband, wife or child will never return home again because of
what happened on that day, and I think it is very important for
this committee to remember exactly what did happen on that day.
It wasn't a political rally, it wasn't a non-violent speech
protest, it wasn't an example of urban street crime. It wasn't
even an attack by another sovereign state or nation upon the
United States. It was the deliberate murder of innocent men and
women, not for high political purpose or even low political
purpose, but simply as the random manifestation of hate.
We talked about hate before here this morning, but I think
we have to remember that that is what this was, a random
manifestation of hate intended to spread panic and to fracture
the civil order and continuation of American society.
But you and I know, Mr. Chairman, that Americans don't
fracture that easily. We may be grievously wounded and we do
earnestly want justice, and we want justice to be achieved in a
rational, humane way. And our President has told us that those
who perpetrated the events of September 11 will be held to
account. Now, the question is how will they be held to account?
There is some prospect that they will be held to account,
as Blackstone anticipated, as the enemies of mankind on the
field of battle. There is also some possibility that they may
be tried in a U.S. District Court. But there is yet a third
possibility, one that this Nation knows from trying Nazi
saboteurs in World War II and hundreds of trials in the context
of the Civil War, and that is apprehending these enemies of
mankind and presenting the evidence before a duly-constituted
military tribunal. That also changes the character and
perspective of what we are analyzing here today.
Freedom: the Founders had a very important conception of
freedom. It wasn't just freedom to do anything or to associate
for any purpose, but to do those things which do not harm
others, and which, it was hoped, would advance the common good.
Freedom separated from truth is not freedom at all, but
license, and Congress can no longer afford, if it ever could,
to confuse freedom and license because doing so licenses not
freedom, but terrorism.
Now, I respectfully suggest that many of the objections
that have been raised against this legislation are raised by
people who have a much different conception of freedom than our
Founders possessed, far more radical in nature, far more
autonomous in nature, and also unfortunately a far less
realistic assessment of the threat that is now presented to the
United States.
In my judgment, Mr. Chairman, this is important
legislation. It does have to be carefully drafted. I think it
is being carefully drafted, and I appreciate the time this
committee is spending on overseeing it. But let's remember that
the Constitution is to preserve a more perfect Union, and quite
frankly this Congress has already given the President of the
United States a joint resolution that authorizes him not only
to respond to the events of September 11, but also to any
future act of terrorism.
This legislation is not unrelated to what the President
needs to do. We are all concerned that the response to the
events of September 11 be proportionate, be targeted, be
effective in actually striking not at innocents, as the attack
was on America, but at those who actually perpetrated these
terrorist acts. In order to accomplish that, commission after
commission have recommended a greater sharing of information
between law enforcement and intelligence agencies.
There are no serious constitutional obstacles to either
updating law enforcement authorities to make them consistent
with the technology that presently exists or to update law
enforcement authority to make terrorism at least on par with
the prosecution and pursuit of drug criminals and organized
crime. That is what this legislation is about.
I humbly suggest that the objections that have been raised,
as Senator Hatch suggested, are not objections about
constitutional law as much as constitutional policy. I think if
you carefully look at some of the sections, and I know we will
in the context of questioning, when we are asking for the
extension of pen register information which is not protected by
the Fourth Amendment, to include the Internet, we are not
violating the Constitution, but providing a necessary tool to
track down terrorism.
When we are authorizing a FISA warrant where there is an
intelligence purpose, we are, as Professor McGinnis has already
affirmed, acknowledging the context in which our civil
liberties are threatened. We are not disregarding the
Constitution or judicial process. FISA builds that in. It is
the Congress and the President acting together, and in the
context of foreign affairs and foreign policy, power is then at
its zenith, as the Supreme Court has said, to address questions
of this nature.
To expand the definition of terrorism in the context of
immigration to include those who materially assist or associate
in a knowing way, not an accidental way, not an innocent way,
not for purposes of non-violent communication, but to knowingly
assist terrorist activity, is not to violate the Constitution.
I know these specifics, again, will be looked at in the
context of questions, so let me just end with this. I am proud
of America in so many ways, including for this hearing. The
fact that we live in a society where civil libertarian
objection can be raised and discussed, not with hatred, not
with violence, but with reason, is a testimony to the type of
country we are. But let us not take that for granted. Prudence
requires that we act, and act now, so that our law enforcement
and military capacities can find the culprits who murdered so
many innocent American citizens on September 11.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Kmiec follows:]
Statement of Dean Douglas W. Kmiec,\1\ Professor of Law, Columbus
School of Law, Catholic University of America, Washington, D.C.
Mr. Chairman. I am the Dean of the Law School of The Catholic
University of America in Washington, D.C. As the former head of the
Office of Legal Counsel in the U.S. Department of Justice in the Reagan
administration, it was my duty to handle legal issues pertaining to
national security and foreign intelligence, as well as to advise the
President on constitutional questions brought under virtually any part
of the U.S. Code.
---------------------------------------------------------------------------
\1\ Dean Douglas W. Kmiec, and St. Thomas More Professor of Law,
Columbus School of Law, Catholic University of America, Washington,
D.C.
---------------------------------------------------------------------------
The events of September 11 remain ever-present in the minds of
American citizens. For thousands of families, a husband or wife or
child will never return home because of what happened that day. The
diabolical events of that morning will be forever etched in our
consciousness. And yet, along with those mental pictures, it is
important to grasp fully what happened: it wasn't a political rally; it
wasn't a nonviolent speech protest; it wasn't an example of urban
street crime; and it wasn't even an attack by another sovereign state
or nation, it was the deliberate murder of innocent men and women, not
for high political purpose or cause--or even a base one--but simply the
random manifestation of hate intended to spread panic and fracture the
civil order and continuation of American society.
But as grievously wounded as we may be, American society and its
principled understanding of freedom with responsibility does not
fracture or panic that easily, but it does expect that justice will be
done. It earnestly desires, along with our President, to see those who
so mercilessly took sacred human life to be held to account--not in a
local criminal court, but by the able men and women of the military and
our law enforcement communities, working together, either to eliminate
on a field of battle these ``enemies of mankind,'' as Blackstone called
them, or to apprehend and punish them--presumably before the bar of a
properly convened military tribunal like those employed against Nazi
saboteurs in World War II.
In considering this legislation it is useful to remember that our
founder's conception of freedom was not a freedom to do anything or
associate for any purpose, but to do those things which do not harm
others and which, it was hoped, would advance the common good. Freedom
separated from this truth is not freedom at all, but license. Congress
can no longer afford, if it ever could, to confuse freedom and
license--because doing so licenses terrorism, not freedom. Those
opposing the Anti-Terrorism Act of 2001 submitted to you by the
Attorney General seem to have both a more radical view of freedom and a
less sober view of the threats we face. For example, before the 1996
Anti-terrorism Act was passed, some of the opponents to this
legislation claimed that terrorist threat was not particularly imminent
and that existing investigative and protective authorities were
adequate. ``The U.S. has not been a fertile breeding ground for
terrorism,'' opined Mr. James X. Dempsey & Professor David Cole in
Terrorism & The Constitution 147 (1999), and further that ``relatively
modest, overt, non-discriminatory measures, such as metal detectors at
airports protect airlines from attack.'' Dempsey & Cole, Terrorism &
The Constitution at 153 (June 1999)]. Today, these same objectors say
the existing law is just fine.
With due respect, such complacency hides a basic confusion or
under-appreciation for the war against terrorism that now must be
fought. The objectors think of the mass destruction of the World Trade
Center and the Pentagon as the equivalent of ``[m]urder, kidnapping or
bank robbery.'' [Dempsey & Cole, supra at 159]. They think the point is
a criminal trial; it is not--it is the elimination of terrorism.
The primary authority for dealing with terrorist threat resides
both in the President as commander in chief, and this Congress, as the
architect of various specific legal authorities, under the
Constitution, to meet that threat. The President has courageously told
the nations of the world that all are either for the United States in
this, or with the terrorists. There is no middle ground. Similarly, the
Congress by joint resolution has given President Bush authority not
only to act against those wealthy and bloody hands that orchestrated
the events of September 11, but all cooperators in those cowardly
actions or ``any future act'' of international terrorism.
The President has not been rash in the use of our military might,
even as he has made unmistakably plain that the ``hour is coming when
America will act.'' However, for that hour to come; for the
proportionate application of our military might to become successfully
manifest, this Congress must equip our law enforcement and intelligence
communities with adequate and constitutional legal authority to address
a war crime on a scale that previously was not seen in this generation,
or seen ever, in peace time.
The Attorney General has put before you, in the form of the Anti-
Terrorism Act of 2001 just such a piece of legislation. While it is
still in draft form, I believe the provisions discussed herein, are
fully constitutional and merit your approval. In drafting this
legislative proposal, the Attorney General has given due regard to the
necessary balance between the civil liberties enjoyed by our citizens
under the Constitution and the law enforcement authority needed to both
meet the employ of modern and global communication in terrorist
plotting and the terrorist support activities of those non-citizens who
come to our shores, as our guests, but who nevertheless wish to kill
us.
While I suppose it is possible for some of our objecting witnesses
to be right about their constitutional questions even as their
appraisal of terrorist threat was so astoundingly wrong, it is only
fair for this body to understand--in seeking to balance security with
freedom--that the witnesses opposing the legislation do so on
constitutional policy, not constitutional law, grounds. And it is
further important to know that the policy of the opposing witnesses is
framed by the belief that, to quote them, ``there are a number of
reasons to be skeptical about the claim that terrorists or their
weapons have changed qualitatively. . . .'' [Dempsey & Cole, supra at
152]. Regrettably, that cannot no longer be said to a stunned world
community that has never before witnessed the inhumanity of using
hundreds of innocents in a commercial airplane to kill thousands of
other innocent noncombatants.
As you know, the legislation before you has two fundamental
purposes: to subject terrorism to the same rigorous treatment as
organized crime and the drug trade and to supply up-to-date law
enforcement capabilities to address the technology of the day which no
longer observes some of the lines previously drawn in statute. The
proposed legislation is complex and proceeds in 5 parts or titles. I
will not address each title or section, but will highlight some of
importance and others to rebut arguments raising putative
constitutional shortcomings.
In Title I dealing with intelligence gathering, section 101 is a
needed change reflecting that in gathering intelligence,
telecommunications is a national enterprise, not a local one, and it
now includes the Internet as well as various telephonic services. Under
court supervision, this section authorizes the installation of devices
(pen registers/trap and trace) anywhere in the United States.
Terrorists do not stop at state lines, and the ability of law
enforcement to obtain such information from any person or entity
supplying wire or electronic communications service is a practical
necessity. Section 101 uses technologically neutral language
(``routing, addressing'') make it clear that it applies to all
technology that is presently known, including the Internet. Basically,
this section authorizes the disclosure of telephone numbers dialed or
their equivalent. It poses no constitutional issue, as courts have held
that pen register/trap and trace information is not subject to
constitutional protection, Smith v. Maryland, 442 U.S. 735 (1979) and
some case law has already been extending existing authority to email.
Beyond this, the legislative proposal is explicit that the content of
the communications are not included.
Section 103 of the legislation facilitates the disclosure of so-
called Title III wiretap information to the intelligence community.
This directly implements numerous commission recommendations that law
enforcement and intelligence personnel eliminate artificial lines
separating them in the context of a terrorism investigation. Presently,
18 U.S.C. 2517(1) allows any wiretap information to be shared if it
assists another criminal investigation. The universe of individuals
authorized to receive wiretap information under the proposal is larger
than that, but is rationally limited to law enforcement, intelligence,
national security, national defense, protective, and immigration
personnel or the President or Vice-President. I understand that the
House version further adds that the sharing is appropriate only when it
relates to foreign intelligence information. This germaneness standard
is workable, and the authority requested presents no constitutional
issue. There is no basis to fetter this sharing of information upon
court order since that would in essence make sharing of information
less possible in a terrorism investigation than in common criminal
practice today where federal prosecutors share this information with
state law enforcement officers investigating local crime.
A good deal of debate has focused upon section 153 and the
expansion of the Foreign Intelligence Surveillance Act (FISA) 50 U.S.C.
sections 1800-1863 to circumstances that are not primarily intelligence
related, but have foreign intelligence merely as one of its purposes.
The Attorney General posits that this will eliminate the need to
constantly re-evaluate whether the intelligence purposes of an
investigation outweigh the criminal objectives.
While the distinction between primary purpose and one purpose
mirrors lower court case law designed to insure the observance of
Fourth Amendment protections in criminal cases, the distinction makes
little sense where both intelligence and law enforcement communities
must work side by side in the war on terrorism. It is also a
distinction that has never been formally made by the Supreme Court.
Gathering intelligence without meeting the stringent probable cause and
notice elements of a traditional Title III criminal investigation are
essential to tracking down terrorist activity. The real distinction
should not be between intelligence and criminal purposes, but whether
the surveillance or search is being effectively directed at terrorist
activity, especially that from a foreign source, without having to
decide whether at any given time one purpose or the other predominates.
In my judgment, this greater flexibility does not present a
constitutional violation.
First, a little bit of background. Before FISA, wiretapping for
national security purposes was essentially unregulated. In 1972, the
Supreme Court, in United States v. United States District Court, 407
U.S. 297 (1972)--the so-called Keith opinion--ruled that wiretaps
conducted for purposes of domestic security violated the Fourth
Amendment unless a warrant had been obtained from a court before the
surveillance was conducted. However, the Court declined to hold that
this warrant requirement also applied to surveillance of foreign
governments or their agents.
Congress established procedures for law-enforcement wiretapping in
1968, including a requirement of probable cause that a crime had been
or would soon be committed. This statute created significant
protections against wiretapping in most situations, but it again
specifically exempted national security searches from its scope.
Congress provided that ``nothing in the Act limited the President's
existing constitutional power to obtain foreign intelligence or protect
national security.'' 18 U.S.C. 2511(3) (1968).
The Carter administration following congressional study sought the
enactment of FISA while nevertheless contending, as most presidents
have, that the Executive has inherent power to conduct warrantless
electronic wiretapping for national security purposes. Certainly, in
this regard, it can be tenably argued that the President's Article II
responsibilities may be sufficient in themselves in an emergency of the
type we presently face. Aside from this inherent Executive claim,
emergency statutory authority is expressly confirmed in FISA insofar as
the Attorney General may authorize immediate surveillance without court
order. 18 U.S.C. 1802(a)(1). The Act also authorizes the conducting of
electronic surveillance without a warrant when the Attorney General
certifies in writing and under oath that (among other conditions) the
government will comply in statutory ``minimization procedures''
(relating to the unnecessary dissmenination of nonpublic information),
and that there is no substantial likelihood that the surveillance will
acquire the contents of any communication to which a ``United States
person'' is a party.
In all other circumstances, the government may only conduct
electronic surveillance pursuant to FISA's advance procedure for
judicial review. The application for the search order must contain the
approval of the Attorney General, a description of the target of the
surveillance, and proposed minimization procedures. The application
must also include a statement of facts demonstrating probable cause
that the target is either a foreign power or an agent of a foreign
power, and that the facilities to be searched are being used or are
about to be used by a foreign power or an agent of a foreign power.
Finally, the application must include certification from an appropriate
executive branch official that the information sought is foreign
intelligence information, that the purpose of the surveillance is to
obtain foreign intelligence information, and that normal techniques
could not obtain the desired information. The executive official must
present facts to support these certifications, but as against foreign
powers or agents thereof, no showing of probable cause is required.
As suggested above, FISA provides a heightened standard of review
for United States persons, which includes both citizens and aliens
lawfully admitted for permanent residence. FISA expressly provides that
United States Persons shall not be subject to FISA surveillance solely
on the basis of their constitutionally protected First Amendment
rights.
None of these protections are altered by the proposed legislation.
Can it thus truly be claimed that allowing FISA to be applied in
criminal prosecutions is unconstitutional if foreign intelligence is
only one, and not the primary, purpose? No. At worst, should the
Supreme Court observe the primary purpose distinction that has been
indulged in lower courts, the consequence may be a denied warrant, or
if a warrant issues, suppression of evidence. All proposed section 153
does is eliminate the statutory basis for judicial challenge to
acquired evidence in a subsequent Article III trial of a terrorist
suspect. Without the statutory impediment that the Attorney General
seeks to eliminate, to find unconstitutionality under the Fourth
Amendment, the Supreme Court would have to both disregard the
longstanding claims of inherent presidential authority to protect the
national security interests of the United States and, in a circumstance
like the present national security emergency, the fact of that
emergency. Warrant requirements need not be followed where there is
special government need. Searches without warrants or probable cause
are generally constitutional ``when special needs, beyond the normal
need for law enforcement'' make these elements unworkable. Veronia
School District 47J v. Acton, 515 U.S. 646 (1995). The constitutional
standard for all searches or surveillance is ``reasonableness.''
Confronting the present terrorist threat is surely reasonable and
meets that special need. Now more than ever our national security
requires ``the utmost stealth, speed, and secrecy.'' United States v.
Truong Ding Hung, 629 F.2d 908 (4th Cir. 1980) (adopting the
foreign intelligence exception to the Fourth Amendment). A warrant
requirement adds a procedural hurdle that reduces the flexibility of
executive foreign intelligence initiatives launched in the aftermath of
September 11 and before, and in some cases delay executive response to
foreign intelligence threats, and increase the chance of leaks
regarding sensitive executive operations. See Zweibon v. Mitchell, 516
F.2d 594, 704 (D.C.Cir.1975) (Wilkey, J., concurring and dissenting).
There is also the matter of institutional competence. The executive
possesses unparalleled expertise to make the decision whether to
conduct foreign intelligence surveillance, whereas the judiciary is
largely inexperienced in making the delicate and complex decisions that
lie behind foreign intelligence surveillance. True, courts possess
expertise in making the probable cause determination involved in
surveillance of suspected criminals, but they are not proficient in
military affairs, which is what is most essential to our nation's
security in the present climate. Few, if any, district courts would be
truly competent to judge the importance of particular information to
the security of the United States or the ``probable cause'' to
demonstrate that the government in fact needs to recover that
information from one particular source. Even the special court created
by FISA comprehends the reality of judicial limitation by prescribing a
``clearly erroneous'' standard of review.
In contemplating the constitutionality of proposed section 153, the
Supreme Court would also be certain to acknowledge that the executive
branch not only has superior expertise in the area of foreign
intelligence, but also, as even the lower courts tendering the primary
purpose rationale admit, is the constitutionally designated authority
in foreign affairs. See First National Bank v. Banco Nacional de Cuba,
406 U.S. 759, 765-68 (1972); Oetjen v. Central Leather Co., 246 U.S.
297, 302 (1918). The President is tasked by the constitution with the
conduct of the foreign policy of the United States. See United States
v. Curtiss-Wright Corp., 299 U.S. 304 (1936). Just as the separation of
powers in Keith forced the executive to recognize a judicial role when
the President conducts domestic security surveillance, 407 U.S. at 316-
18, so the separation of powers would enjoin the Court in all
likelihood to acknowledge the principal responsibility of the President
for foreign affairs and concomitantly for foreign intelligence
surveillance. In my judgment, this should extend to the question of
whether the pursuit of terrorists with FISA authority is at any given
time more a military, than a criminal prosecution, objective.
It must be remembered that FISA itself did not transfer the
traditional Fourth Amendment warrant requirement unaltered into the
foreign intelligence field. As suggested earlier, the statute does not
contain a blanket warrant requirement; rather, it exempts certain
categories of foreign intelligence surveillance. 50 U.S.C. 1802. Nor
does the statute require the executive to satisfy the usual standards
for the issuance of a warrant; the executive need demonstrate only
probable cause that the target is a foreign power or a foreign agent
and, in the case of United States citizens and resident aliens, that
the government is not clearly erroneous in believing that the
information sought is the desired foreign intelligence information and
that the information cannot be reasonably obtained by normal methods.
50 U.S.C. sections 1805 and 1804(a)(7)(E).
Of course, insofar as the above authorities sanction section 153 in
general, it especially does not contravene constitutionally protected
privacy interests in the context of pursuing terrorist activity. Almost
by definition in such context foreign intelligence is a sufficient
purpose.
Turning to Title II and the immigration proposals, it is evident
that a broadened definition of terrorist is needed. Under current law,
an alien is inadmissible and deportable for engaging in terrorist
activity only when the alien has used explosives or firearms. Opponents
of the Attorney General's proposal claim the new definition of
terrorism is too broad. For example, Professor Cole specifically
objects to adding the words ``or other weapon or dangerous device'' to
section 201(a)(1)(B) (ii), which--as noted--presently prohibits only
the use or threat to use any ``explosive or firearm.'' Professor Cole
asserts that expanding the term to include a residual category of other
weapons trivializes terrorism. This is not constitutional law, it is
opinion.
And I dare say is not the opinion of the families of the innocent
men and women who had their commercial airliner turned into a ``weapon
and dangerous device,'' or whose family members were killed with a
``box cutter'' en route. It is not likely the opinion of the families
who lost loved ones in the World Trade Center or the Pentagon or in
rural Pennsylvania. Perhaps, prior to September 11, we could be lulled
into the notion that not even terrorists would conceive of using
innocent human beings as a weapon against other innocent human beings
on our own soil, but sadly that is no longer our reality. Hypotheticals
that the statute might be contorted to apply to a barroom brawl or a
domestic dispute overlooks the reason we have been called here, demeans
the judgment of federal officers, and are quite simply, too facetious
to be credited as a legal objection.
Similarly, opponents of this legislation are concerned that aliens
who associate with terrorist organizations may be deported when their
purported association has somehow been confined to the non-terrorist
functions of the organization. Terrorists unfortunately gain financial
and other support hiding behind the facade of charity. Those opposing
this new immigration authority seem undisturbed by this. That is again
a policy choice; it is not a constitutional one. A statute, like
proposed section 201, aimed at supplying a general prohibition against
an alien contributing funds or other material support to a terrorist
organization (as designated under current law by the Secretary of
State) or to any non-designated organization that the alien ``knows or
reasonably should know'' furthers terrorist activity does not violate
the Constitution. Loosely citing cases that prohibit assigning guilt by
association are inapposite. The cases cited by opponents of this
legislation deal with domestic civil rights and the like pertain to the
nonviolent association of American citizens not the fanatical planning
of non citizens.
Eliminating terrorism requires not just excluding terrorists as
individuals, but individuals who engage in terrorist activity either in
an individual capacity or as a member of an organization. There is
nothing unconstitutional about this. The Constitution does not require
that associations of terrorists be ignored. Yes, the government must
prove specific intent in a criminal trial that the individual had made
the association to advance unlawful purposes. Section 201 envisions
just that. ``Engaging in terrorist activity'' means committing a
terrorist act or otherwise committing acts that ``the actor knows, or
reasonably should know, affords material support . . . .to any
organization that the actor knows, or reasonably should know, is a
terrorist organization, or to any individual whom the actor knows, or
reasonably should know, has committed or plans to commit any terrorist
activity.'' The specific intent requirements are not only explicit, but
multiple. It is thus a blatant fabrication on the part of the objectors
that the proposal severs ``any tie between the support provided and
terrorist activity.'' This is not, as the objectors claim, ``guilt by
association,'' but guilt for associating with terrorists for terrorism
purposes.
The proposed legislation likewise does not punish those who
innocently may support a front organization or even may support an
individual who had previously committed a terrorist activity if the
alien establishes ``by clear and convincing evidence that such support
was afforded only after that individual had permanently and publicly
renounced and rejected the use of, and had cease to commit or support,
any terrorist activity.'' Section 201 (a)(1)(C)(iii)(V).
The witnesses against the Attorney General's well-conceived
proposal also mislead by mis-citation. They would have the committee
believe, as one witness said last week in opposition before the
Intelligence Committee, that ``[t]he First and Fifth amendments apply
equally to citizens and aliens residing in the United States.'' [Cole
statement at n. 3, citing Kwong Hai Chew v. Colding, 344 U.S. 590, 596
n.5 (1953)]. However, this cannot be said without qualification. With
regard to exclusion of immigrants, U.S. authority is plenary. Yick Wo
v. Hopkins, 118 U.S., at 369; Kwong Hai Chew, 344 U.S., at 596, n. 5.
(``The Bill of Rights is a futile authority for the alien seeking
admission for the first time to these shores.'') And the Court has long
held that ``Whatever the procedure authorized by Congress is, it is due
process as far as an alien denied entry is concerned.'' United States
ex rel. Knauff v. Shaughnessy, 338 U.S. at 544.
Terrorists or those seeking association with them clearly can be
excluded from our Nation without offending the First Amendment or any
other provision of the Constitution. While additional rights attend an
immigrant granted admission, they are not on par with citizens. In U.S.
v. Verdugo-Urquidez, 110 S.Ct. 1056 (1990), for example, the Court
opined that: ``[Our] cases, however, establish only that aliens receive
constitutional protections when they have come within the territory of
the United States and developed substantial connections with this
country. See, e.g., Plyler v. Doe, 457 U.S., at 212 (The provisions of
the Fourteenth Amendment `` `are universal in their application, to all
persons within the territorial jurisdiction. . . .' '').
These leads to the question of whether those posing terrorist
threat can be detained by the Attorney General. The detention provision
has been the subject of much debate and as of this writing was still in
flux. The Senate version of section 203 provides for this insofar as
``[t]he Attorney General may certify [for detention] an alien to be an
alien he has reason to believe may commit, further, or facilitate
[terrorist] acts . . . . or engage in any other activity that endangers
the national security of the United States.'' The objectors to the
legislation recite, erroneously, that the proposal mandates indefinite
detention. As the quoted language above indicates, the Attorney
General's certification is permissive (may, not shall), even as
following certification, the detention naturally follows. It would be
illogical if it did not.
Is this detention based on certification unconstitutional? Not even
the opponents claim this; instead, they opine it raises
``constitutional concerns.'' They especially say this would be true if
it were used to detain those giving ``peace training to the IRA.'' Any
statute can be made to raise constitutional concerns if it is
manipulated to apply against something other than its constitutional
object. The Congress is not tasked with drafting against the absurd. It
is tasked with addressing the very real dangers of those who wish to
kill us for no reason other than we are American. The Attorney General
can be given authority to address such hatred. He can also be given the
authority to address the risks posed by enemy aliens who may flee or
who may seek to thwart our security by exchanging information or
launching an additional attack.
But, claim the objectors, the Attorney General cannot be given
authority to detain persons he cannot deport. Perhaps, but that is not
the question that needs to be answered. The Attorney General has not
asked for that authority. He seeks to detain those who have been found
to be removable, but for various reasons (mostly related to
international obligations to avoid repatriation to a country where
torture is inevitable), cannot be removed immediately. Existing law
allows aliens to be removed not only when they were originally
inadmissible or convicted of a crime or for violation of immigration
status, but also for national security or foreign relations reasons, or
as implied under the existing post-removal statute, when the alien is
``determined by the Attorney General to be a risk to the community or
unlikely to comply with the order of removal.'' 8 U.S.C. 1231(a)(6)
(1994 ed., Supp. V) and 8 C.F.R. 241.4(a) (2001). This post-removal
detention period authority was recently construed by the Supreme Court
in Zadvydas v. Davis, 121 S.Ct. 2491 (2001). This case of statutory
interpretation does not rule out indefinite detention where
dangerousness is accompanied by special circumstance. 121 S.Ct. at
2499. The Court explicitly noted that in establishing a presumptive six
month period for detention nothing prevents the government from
continuing detention with evidence of likely removal. Most relevantly,
the Court did not even apply the presumptive six month detention limit
to cases of detention for terrorist activity or its support. Wrote
Justice Breyer for the Court:
Neither do we consider terrorism or other special circumstances
where special arguments might be made for forms of preventive detention
and for heightened deference to the judgments of the political branches
with respect to matters of national security. 121 S.Ct. at 2502.
The detention by Attorney General certification thus raises none of
the constitutional problems suggested by the legislation's detractors.
Morever, even the opponents of this carefully-drawn legislation must
and do concede that it adequately provides for judicial review of the
Attorney General's determination.
It should be noted that the House version of Section 203 is a bit
different, providing, in addition to detention following a removal
decision, for short-term detention of a suspected terrorist for up to
seven days before charging an alien with a crime or a basis for
removal. If no charges are filed, the alien is released. The House
version provides for habeas review in the U.S. District Court of the
District of Columbia of any decision to charge an alien. Under current
regulation, INS may detain an alien for 48 hours before charging a
crime or removable offense. Extending this time of detention without
charge may raise more legal questions than the Senate version, which as
explained by its proponents did not apply to an alien who was not
already determined to be subject to removal. Whether a constitutional
problem is presented by the House version likely depends upon the
extent of due process protection afforded an individual alien in light
of the degree of his or her substantial connection with this country.
See, Plyler, supra.
Raising civil libertarian objections to new law enforcement
provisions is a healthy sign of a vibrant democracy committed to human
rights. America should be justly proud of its temperate actions in
response to September 11, and its debate. Disagreement is not a sign of
disrespect. However, with regard to the provisions discussed above,
Congress should proceed to enactment since no significant
constitutional objection has been raised. Should Congress nevertheless
fear that the power asked for might be abused, the prudent course would
not be to deny the needed authority, but to draft a cause of action for
damages to rectify possible misapplication, or to provide for a sunset
of the authority after a period of time sufficient to meet the present
exigency. The possibility of abuse should not obscure the present need
and the supposition of trust that one must have if our democratic order
is to be safeguarded from those outside our borders who wish to subvert
it.
Thank you for the opportunity to appear before you this morning.
Chairman Feingold. Thank you, Dean. I am intrigued by this
distinction between constitutional law and constitutional
policy. I do think that there are questions of constitutional
law here, but surely if there is such a separate area as
constitutional policy, that is even more our responsibility
than the United States Supreme Court because we are here to
make policy. But I do appreciate your testimony.
Now, I would like to turn to Professor David Cole.
Professor Cole currently teaches at Georgetown University Law
Center and he has long been associated with the Center for
Constitutional Rights. In addition to litigating several
important First Amendment before the United States Supreme
Court, Professor Cole has written extensively on the issue
before us today, co-authoring the book Terrorism and the
Constitution: Sacrificing Civil Liberties in the Name of
National Security.
I welcome you, Professor, and you may proceed.
STATEMENT OF DAVID COLE, PROFESSOR OF LAW, GEORGETOWN
UNIVERSITY LAW CENTER, WASHINGTON, D.C.
Mr. Cole. Thank you, Senator Feingold.
Precisely because the terrorists violated every principle
of civilized society, of human decency and of the rule of law,
we must, in responding to the threat of terrorism, maintain our
commitments to principle. I want to suggest three principles.
First, we should not overreact, as we have so often
overreacted in the past in times of fear.
Second, we should not sacrifice the constitutional
principles for which we stand.
Third, in balancing liberty and security, we should not
trade the liberties of a vulnerable group--immigrants, and
particularly Arab and Muslim immigrants--for the security of
the majority.
Unfortunately, the immigration provisions that have been
advanced by the Bush administration, that have been proposed in
the House and that are now being considered in the Senate-
Justice Department negotiation violate all three principles.
They overreact because they impose guilt by association for
wholly innocent associational activity, and they authorize
indefinite detention on the Attorney General's say-so of any
such alien.
They sacrifice our constitutional principles, and this is
constitutional law, not constitutional policy. Guilt by
association, the Supreme Court says, violates the Fifth
Amendment and the First Amendment, both of which apply, the
Supreme Court has said, without distinction to citizens and
aliens living here.
Executive detention without any showing of current
dangerousness or risk of flight, which is what the mandatory
detention provision in the House bill would authorize, violates
both substantive due process and procedural due process. And in
reacting this way, we are trading the liberties of the few, of
those without a voice, of immigrants who can't vote, and
particularly Arabs and Muslims, for the purported security of
the rest of us.
These are provisions which will, we know, be targeted at
Arabs and Muslims, and not for their individual conduct, but
for their group identity, the very type of thinking that
underlies the hate crimes that we all so virulently oppose.
First, guilt by association. Current law makes aliens
deportable for terrorist activity, for supporting terrorist
activity, for planning, facilitating, or encouraging terrorist
activity any way, shape or form. The Bush proposal makes aliens
deportable for any associational support of any group that has
ever engaged in or used violence. There is no requirement of
any nexus between the alien's support and the actual violence.
If an immigrant in the 1980s gave money to the African
National Congress to support its non-violent struggles against
apartheid, just as thousands of Americans did, he would be
deportable under this statute for providing support to a
terrorist organization. The African National Congress also
engaged in violent opposition to apartheid. The African
National Congress was listed every year until it came to power
as a terrorist organization by the Secretary of State. That
wholly innocent activity would be a deportable activity. Is
that a measured response? No.
Even if the alien shows that his support was designed to
counter terrorist activity, that is no defense. So if an alien
today wants to further the peace process in England by
providing peacemaking training to the IRA, he is deportable.
Even if he can prove that his support furthered peace and
countered terrorism, he is deportable. Is that a measured
response? I suggest no.
The mandatory detention provisions are also clearly and
plainly unconstitutional, for two reasons. First of all, they
are essentially a form of preventive detention. The Supreme
Court has held that preventive detention is only permissible
under narrow circumstances where the Government shows
dangerousness to others or risk of flight. Under the House bill
and the Bush proposal, the Government would be permitted to
engage in preventive detention without any showing of
dangerousness to others or risk of flight.
Under the House bill, all they have to show is that they
have reasonable grounds to believe that someone is described in
the terrorist activity provisions of the bill. But then the
terrorist activity provisions of the bill are defined so
broadly that they include every violent crime other than an
armed robbery--every violent crime other than an armed robbery.
That is not what the man on the street understands to be
terrorism, that is not what the international community
understands to be terrorism, and that is not a narrow class of
people who pose a particular danger to society. Yet, that is
the class of people who would be subject to mandatory detention
under this provision.
In addition, it would apply to people who gave money to the
African National Congress or who gave peace-making training to
the IRA. Even if there is no evidence that those people pose a
threat to national security or pose a risk of flight, the
statute would authorize their detention.
The second problem: it authorizes indefinite detention.
There have been news reports that have suggested erroneously
that the House solves this problem by requiring the filing of
charges within seven days. That is wrong because whether or not
charges are filed doesn't matter. The statute provides that
mandatory indefinite detention of aliens is permitted.
Even if the alien prevails in his deportation proceeding
and cannot be removed and has a right to remain here
permanently, the statute provides for mandatory detection, not
on a finding that the alien is a danger to society, but solely
on a finding that the Attorney General had reasonable grounds
to believe that he engaged in a crime of violence, that he was
in a domestic dispute where he picked up a plate and threw it
at his wife, or he was in a bar and picked up a broken bottle.
That would constitute sufficient grounds for mandatory
detention. That, I submit, is not a narrow, measured response.
It is not the kind of careful consideration of civil liberties
that we should be demanding in this time of fear. It is
unfortunately precisely the kind of overreacting that we have
so often seen in the past.
Thank you.
[The prepared statement of Mr. Cole follows:]
Statement of David Cole,\1\ Professor of Law, Georgetown University Law
Center, Washington, D.C.
INTRODUCTION
The deplorable and horrific attacks of September 11 have shocked
and stunned us all, and have quite properly spurred renewed
consideration of our capability to forestall future attacks. Yet in
doing so, we must not rashly trample upon the very freedoms that we are
fighting for.
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\1\ Professor, Georgetown University Law Center, and attorney with
the Center for Constitutional Rights.
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Nothing tests our commitments to principle like fear and terror.
But as we take up what President Bush has called a fight for our
freedoms, we must maintain our commitments to those freedoms at home.
The attack of September 11, and in particular the fact that our
intelligence agencies missed it entirely, requires a review of our law
enforcement and intelligence authorities. Everyone agrees that more
should be done to ensure the safety of American citizens at home and
abroad. But we must be careful not to overreact, and should therefore
insist that any response be measured and effective.
Three principles must guide our response to threat of terrorism.
First, we should not overreact in a time of fear, a mistake we have
made all too often in the past. Second, we should not sacrifice the
bedrock foundations of our constitutional democracy--political freedom
and equal treatment. And third, in balancing liberty and security, we
should not trade a vulnerable minority's liberties, namely the
liberties of immigrants in general or Arab and Muslim immigrants in
particular, for the security of the rest of us.
The Administration's proposal seeks a wide range of new law
enforcement powers. I will focus my remarks on the immigration section
of the Administration proposal. In doing so, I will also refer to the
Sensenbrenner-Conyers bill, referred to as the PATRIOT Act, recently
introduced in the House. In my view, the Administration's proposal is
neither measured nor effective, and unnecessarily sacrifices our
commitment to both equal treatment and political freedom. The PATRIOT
Act mitigates some of the troubling aspects of the Administration's
proposal, but remains deeply problematic, and unconstitutional in
several respects. I will focus my remarks on the Administration's
proposal, but will also note where the PATRIOT Act differs. The
Administration's proposal has four fundamental flaws:
1) It indulges in guilt by association, a concept that the
Supreme Court has rejected as ``alien to the traditions of a
free society and the First Amendment itself.'' NAACP v.
Claiborne Hardware Co., 458 U.S. 886, 932 (1982).
2) It would apply its newly expanded deportation grounds for
associational activity retroactively, making aliens deportable
for activity that was wholly legal at the time they engaged in
it.
3) It authorizes the INS to detain immigrants potentially
indefinitely, even where they cannot be deported and have a
legal right to live here permanently.
4) It resurrects ideological exclusion--the notion that people
can be excluded for their political beliefs--a concept Congress
repudiated in 1990 when it repealed the McCarran-Walter Act.
HISTORY
I will address each of these problems in turn. But before doing so,
it is worth reviewing a little history. This is not the first time we
have responded to fear by targeting immigrants and treating them as
suspect because of their group identities rather than their individual
conduct.
In 1919, a series of politically motivated bombings culminated in
the bombing of Attorney General A. Mitchell Palmer's home here in
Washington, DC. Federal authorities responded by rounding up 6,000
suspected immigrants in 33 cities across the country, not for their
part in the bombings, but for their political affiliations. They were
detained in overcrowded ``bull pens,'' and beaten into signing
confessions. Many of those arrested turned out to be citizens. In the
end, 556 were deported, but for their political affiliations, not for
their part in the bombings.
In World War II, the attack on Pearl Harbor led to the internment
of over 100,000 persons, over two-thirds of whom were citizens of the
United States, not because of individualized determinations that they
posed a threat to national security or the war effort, but solely for
their Japanese ancestry. The internment began in April 1942, and the
last camp was not closed until four years later, in March 1946.
In the McCarthy era, we made it a crime even to be a member of the
Communist Party, and passed the McCarran-Walter Act, which authorized
the government to keep out and expel noncitizens who advocated
Communism or other proscribed ideas, or who belonged to the Communist
Party or other groups that advocated proscribed ideas. Under the
McCarran-Walter Act, the United States denied visas to, among others,
writers Gabriel Garcia Marques and Carlos Fuentes, and to Nino Pasti,
former Deputy Commander of NATO, because he was going to speak against
the deployment of nuclear cruise missiles.
We have learned from these mistakes. The Palmer Raids are seen as
an embarrassment. In 1988, Congress paid restitution to the Japanese
internees. In 1990, Congress repealed the McCarran-Walter Act political
exclusion and deportation grounds. But at the time these actions were
initially taken, they all appeared reasonable in light of the threats
we faced. This history should caution us to ask carefully whether we
have responded today in ways that avoid overreaction and are measured.
to balance liberty and security. In several respects detailed below,
the Administration's proposed Anti-Terrorism Act fails that test.
COUNTERTERRORISM AUTHORITY IN EXISTING LAW
In considering whether the Administration's bill is necessary, it
is important to know what authority the government already has to deny
admission to, detain, and deport aliens engaged in terrorist activity.
The government already has extremely broad authority to act against any
alien involved in or supporting any kind of terrorist activity:
1. It may detain without bond any alien with any visa status
violation ifit institutes removal proceedings and has reason to
believe that he poses a threat to national security or a risk
of flight. The alien need not be charged with terrorist
activity. 8 U.S.C. Sec. 1226, 8 C.F.R. Sec. 241 The INS
contends that it may detain such aliens on the basis of secret
evidence presented in camera and ex parte to an immigration
judge.
2. It may deny entry to any alien it has reason to believe may
engage inany unlawful activity in the United States, and to any
member of a designated terrorist group. It may do so on the
basis of secret evidence. 8 U.S.C. Sec. 1182(a)(3).
3. It may deport any alien who has engaged in terrorist
activity, or supported terrorist activity in any way. Terrorist
activity is defined under existing law very broadly, to include
virtually any use or threat to use a firearm with intent to
endanger person or property (other than for mere personal
monetary gain), and any provision of support for such activity.
8 U.S.C. Sec. 1227(a)(4). Pursuant to the Alien Terrorist
Removal provisions in the 1996 Antiterrorism Act, the INS may
use secret evidence to establish deportability on terrorist
activity grounds.
4. Relatedly, the Secretary of State has broad, largely
unreviewable authority under the 1996 Anti-Terrorism and
Effective Death Penalty Act to designate ``foreign terrorist
organizations'' and thereby criminalize all material support to
such groups. 8 U.S.C. Sec. 1189, 18 U.S.C. Sec. 2339B. This
provision triggers criminal sanctions, and applies to
immigrants and citizens alike. Osama bin Laden's organization
is so designated, and thus it is a crime, punishable by up to
10 years in prison, to provide any material support to his
group.
THE ADMINISTRATION'S PROPOSED ANTI-TERRORISM ACT
The immigration provisions of the Administration's Anti-Terrorism
Act: (1) expand the grounds for deporting and denying entry to
noncitizens; (2) expand the Secretary of State's authority to designate
and cut off funding to ``foreign terrorist organizations;'' (3) create
a new mandatory detention procedure for aliens certified as terrorists
by the INS; (4) authorize the Secretary of State to share certain
immigration file information with foreign governments; and (5) require
the FBI and the Attorney General to share certain criminal history data
with the INS and the State Department to improve visa decision making.
The most troubling provisions are the expanded grounds for
deportation and exclusion, and the new mandatory detention procedure.
a. the administration bill imposes guilt by association
The term ``terrorism'' has the capacity to stop debate. Everyone
opposes terrorism, which is commonly understood to describe
premeditated, politically-motivated violence directed at noncombatants.
See 22 U.S.C. Sec. 2656f(d)(2) (defining terrorism as ``premeditated,
politically motivated violence perpetrated against noncombatant targets
by subnational groups or clandestine agents'').
The INA, however, defines ``terrorist activity'' much more broadly,
and under the Administration bill would define it beyond any common
understanding of the term. Under current law, the INA defines
``terrorist activity'' to include any use or threat to use an
``explosive or firearm (other than for mere personal monetary gain)
with intent to endanger ... the safety of one or more individuals or to
cause substantial damage to property.'' 8 U.S.C.
Sec. 1182(a)(3)(B)(ii). Under the Administration bill, this would be
expanded to include the use or threat to use any ``explosive, firearm
or other weapon or dangerous device'' with the intent to endanger
person or property. Section 201(a)(1)(B)(ii). This definition
encompasses a domestic disturbance in which one party picks up a knife,
a barroom brawl in which one party threatens another with a broken beer
bottle, and a demonstration in which a rock is thrown at another
person. It would also apply to any armed struggle in a civil war, even
against regimes that we consider totalitarian, dictatorial, or
genocidal. Under this definition, all freedom fighters are
terrorists.\2\
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\2\ In his testimony, Douglas Kmiec defends this expansion by
erroneously stating that under current law, ``an alien is inadmissible
and deportable for engaging in terrorist activity only when the alien
has usied explosives or fairares.'' Kmiec Statement at 7. Therefore, he
argues, the change is needed to encompass attacks like those of
September 11. That is plainly wrong. In its current from 8 U.S.C.
182(a)(3)(B)(ii) already defines ``terrorist activity'' to include,
among other things, ``highjacking or sabotage of any conveyance
(including a governmental organization) to do or abstain from doing any
act as an explicit or implicit condition for the release of the
individual seized or detained,'' ``assassination,''the use of any
biological, chemical, or nuclear weapon, and the use or threat to use
any explosive or firearm against person or property (other than for
mere personal monetary again). Thus, no rewriting of the act is
required to reach the conduct of September 11.
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The PATRIOT Act would define ``terrorist activity'' even more
broadly, to include the use of ``any object'' with intent to endanger
person or property. Under this bill, a demonstrator who threw a rock
during a political demonstration would be treated as a ``terrorist.''
The point is not that such routine acts of violence are acceptable,
or that armed struggle is generally permissible. But to call virtually
every crime of violence ``terrorism'' is to trivialize the term. And
because so much else in the Administration bill and the PATRIOT Act
turns on ``terrorist activity,'' it is critical to keep in mind the
stunning overbreadth of this definition. Government action that might
seem reasonable vis-a-vis a hijacker may not be justified vis-a-vis an
immigrant who found himself in a bar fight, threw a rock during a
demonstration, or who sent humanitarian aid to an organization involved
in civil war. Yet the Administration bill draws no distinction between
the hijacker, the humanitarian, the political demonstrator, and the
barroom brawler.
The breadth of ``terrorist activity'' is expanded still further by
the Administration's proposed redefinition of ``engage in terrorist
activity.'' Under current law, that term is defined to include engaging
in or supporting terrorist activity in any way. 8 U.S.C.
Sec. 1182(a)(3)(B)(iii). The Administration proposes to expand it to
include any associational activity in support of a ``terrorist
organization.'' Section 201(a)(1)(C). And because the INS has argued
that a terrorist organization is any group that has ever engaged in
terrorist activity, as defined in the INA, irrespective of any lawful
activities that the group engages in, this definition would potentially
reach any group that ever used or threatened to use a ``firearm or
other weapon'' against person or property.\3\
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\3\ In the Administration draft circulated Wednesday, September 19,
terrorist organization was expressly defined to include any group that
has ever engaged in or provided material support to a terrorist
activity, irrespective of any other fully lawful activities that the
group may engage in. In the revised draft circulated Thursday,
September 20, the bill deleted the definition of terrorist
organization, but still made any support of a terrorist organization a
deportable offense. This is even worse from a notice perspective, as it
makes aliens deportable for providing support to an entity that is
underfined. In litigation, the INS has argued that the term ``terrorist
organization'' means any group that has ever committed ``terrorist
activity.'' as the term is defined in the INA.
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The Administration's bill contains no requirement that the alien's
support have any connection whatsoever to terrorist activity. Thus, an
alien who sent coloring books to a day-care center run by an
organization that was ever involved in armed struggle would appear to
be deportable as a terrorist, even if she could show that the coloring
books were used only by 13-year olds. Indeed, the law apparently
extends even to those who seek to support a group in the interest of
countering terrorism. Thus, an immigrant who offered his services in
peace negotiating to the IRA in the hope of furthering the peace
process in Great Britain and forestalling further violence would appear
to be deportable as a terrorist.
The bill also contains no requirement that the organization's use
of violence be contemporaneous with the aid provided. An alien would
appear to be deportable as a terrorist for making a donation to the
African National Congress today, because fifteen years ago it used
military as well as peaceful means to oppose apartheid.
And unlike the 1996 statute barring funding to designated foreign
terrorist groups, the Administration bill does not distinguish between
foreign and domestic organizations. Thus, immigrants would appear to be
deportable as terrorists for paying dues to an American pro-life group
or environmental organization that ever in its past used or threatened
to use a weapon against person or property.
The net effect of the Administration's expansion of the definition
of ``engage in terrorist activity'' and ``terrorist activity'' is to
make a substantial amount of wholly innocent, nonviolent associational
conduct a deportable offense. By severing any tie between the support
provided and terrorist activity of any kind, the bill indulges in guilt
by association. Douglas Kmiec disputes this assertion in his testimony,
but in doing so refers not to the Administration's proposal, but to the
PATRIOT Act. Kmiec Statement at 7. Even as to the PATRIOT Act, however,
Professor Kmiec is wrong.
The PATRIOT Act seeks to strike a compromise on the issue of guilt
by association. It gives the Administration what it seeks--the power to
impose guilt by association--for support of any group designated as a
foreign terrorist organization by the Secretary of State under 8 U.S.C.
Sec. 1189. An alien who sends humanitarian aid to a designated foreign
terrorist group would be deportable, without more. But for those groups
that are not designated, the bill requires a nexus to terrorist
activity: the alien would be deportable only if he provided support to
a non-designated group in circumstances in which he knew, or reasonably
should have known, that his support was furthering terrorist activity.
Thus, for designated groups, the PATRIOT Act permits guilt by
association, but for non-designated groups, the PATRIOT Act retains the
existing requirement that the INS show a nexus between the alien's act
of support and some terrorist activity. The compromise reflected in the
PATRIOT Act thus properly eliminates guilt by association for non-
designated groups, but expressly authorizes guilt by association for
any organization designated by the Secretary of State under 8 U.S.C.
Sec. 1189.
In my view, the principle that people should be held responsible
for their own individual conduct, and not for the wrongdoing of those
with whom they are merely associated, brooks no compromise. Guilt by
association, the Supreme Court has ruled, violates the First and the
Fifth Amendments.\4\ It violates the First Amendment because people
have a right to associate with groups that have lawful and unlawful
ends. Accordingly, the Court has ruled that one can be held responsible
for one's associational ties to a group only if the government proves
``specific intent'' to further the group's unlawful ends. United States
v. Robel, 389 U.S. 258, 262 (1967).
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\4\ The First and Fifth amendments apply to citizens and aliens
residin in the United States. Kwong Hai Chew v. Colding, 344 U.S. 590,
596 n.5 (1953). Mr. Kmiec suggest that this is wrong because the First
and Fifth Amendments do not extend to aliens seeking entry from abroad.
Kmiec Statement at 8. But of course such aliens are not residing in the
United States. The Supreme Court has long distinguished between aliens
are not residing in the United States. The Supreme Court has long
distinguished between aliens seeking entry from outside our borders,
who have no constitutional protections, and aliens here, whether here
legally or illegally, who are protected by the First and Fifth
AMendments to the Constitution. The Court reiterated this basic point,
apparently missed by Mr. Kmiec, as recently as last term, in Zsadvydas
v, Davis, 121 S. Ct. 2491, 2500 (2001) (``once an alien enters the
country, the legal circumstance changes, for the due process here is
lawful, unlawful, temporary, or permanent.'' The Supreme Court could
not have been any clearer in Colding, in which it stated that neither
First or Fifth Amendments ``acknowledges any distinction'' between
citizens and aliens residing here.
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Guilt by association also violates the Fifth Amendment, because
``in our jurisprudence guilt is personal.'' Scales v. United States,
367 U.S. 203 (1961). To hold an alien responsible for the military acts
of the ANC fifteen years ago because he offers a donation today, or for
providing peace negotiating training to the IRA, violates that
principle. Without some connection between the alien's support and
terrorist activity, the Constitution is violated. Douglas Kmiec argues
that the guilt by association cases ``deal with domestic civil
rights.'' Kmiec Statement at 7.In fact, this principle was developed
with respect to association with the Communist Party, an organization
that Congress found to be, and the Supreme Court accepted as, a
foreign-dominated organization that used sabotage and terrorism for the
purpose of overthrowing the United States by force and violence. Yet
even as it accepted those findings as to the Communist Party, the Court
held that guilt by association was not permissible.
The guilt by association provisions of the Administration bill also
suffer from tremendous notice problems. In the most recent draft,
``terrorist organization'' is wholly undefined, yet an alien can lose
his right to remain in this country for supporting such an undefined
entity. Is a terrorist organization one that engages exclusively in
terrorism, primarily in terrorism, engages in terrorism now, or ever
engaged in terrorism? The definition proffered in the Administration's
Wednesday draft, and argued for by the INS in litigation, does not
solve the notice problem, because it is so broad that it encompasses
literally thousands of groups that ever used or threatened to use a
weapon. Any alien who sought to provide humanitarian aid to any group
would have to conduct an extensive investigation to ensure that neither
the organization nor any subgroup of it ever used or threatened to use
a weapon.
Congress repudiated guilt by association in 1990 when it repealed
the McCarran-Walter Act provisions of the INA, which made proscribed
association a deportable offense, and had long been criticized as being
inconsistent with our commitments to political freedom. In 1989, a
federal district court declared the McCarran-Walter Act provisions
1unconstitutional. American-Arab Anti-Discrimination Comm. v. Meese,
714 F. Supp. 1060 (C.D. Cal. 1989), rev'd in part and aff'd in part on
other grounds, 970 F.2d 501 (9th Cir. 1991). In 1990, Congress repealed
those provisions. Yet the Administration would resurrect this long-
rejected and unconstitutional philosophy.
b. the administration's bill would apply its expanded grounds
fordeportation retroactively, so that aliens would be deported for
conduct fully lawful at the time they engaged in it
The expansive definitions of ``terrorist activity'' and ``engage in
terrorist activity'' detailed above are exacerbated by the fact that
they apply retroactively, to conduct engaged in before the effective
date of the Act. Since the principal effect of the Administration's new
definitions is to render deportable conduct that is now wholly lawful,
this raises serious problems of fundamental fairness.
As noted above, aliens are currently deportable for engaging in or
supporting terrorist activity. However, the new law would add as new
grounds of deportation wholly innocent and nonviolent associational
support of political organizations that have at some time used a
weapon. activity. Even to apply that ground prospectively raises
substantial First and Fifth Amendment concerns, as noted above. But to
apply it retroactively is grossly unfair.
Moreover, retroactive application would serve no security purpose
whatsoever. Since under current law any alien supporting terrorist
activity is already deportable, the only aliens who would be affected
by the bill's retroactive application would be those who were not
supporting terrorist activity -- the immigrant who donated to the
peaceful anti-apartheid activities of the ANC, or who provided
peacemaking training to the IRA, or who made a charitable donation of
his time or money to the lawful activities of an environmental or pro-
life group that once engaged in violence. There is simply no
justification for retroactively imposing on such conduct -- fully
lawful today -- the penalty of deportation.
The PATRIOT Act largely solves the retroactivity problem, at least
with respect to the guilt by association provisions, by limiting its
newly expanded grounds of deportation for support of designated
terrorist organizations to support provided after the designations were
made. Since the designation already triggers a criminal penalty under
current law, most aliens affected by this provision even for pre-Act
conduct would not be able to claim that they were being deported for
conduct that was legal when they engaged in it. However, the PATRIOT
Act would present some retroactivity problems. Under the existing
criminal provisions for material support to terrorist organizations, it
is lawful to send medicine or religious materials to a designated
group. 18 U.S.C. Sec. 2339A. Yet the PATRIOT Act would make such
conduct, even conduct engaged in before the PATRIOT Act took effect, a
deportable offense. There is no warrant for deporting people for
providing humanitarian aid at a time when it was fully legal to do so.
c. the mandatory detention provision section violates due process by
authorizing indefinite unilateral executive detention irrespective
ofwhether the alien can be deported
The Administration bill would amend current INS detention authority
to provide for ``mandatory detention'' of aliens certified by the
Attorney General as persons who may ``commit, further, or facilitate
acts described in sections 237(a)(4)(A)(I), (A)(iii), or (B), or engage
in any other activity that endangers the national security of the
United States.'' Section 202(1)(e)(3). Such persons would be detained
indefinitely, even if they are granted relief from removal, and
therefore have a legal right to remain here. This provision would
authorize the INS to detain persons whom it has no authority to deport,
and without even instituting deportation proceedings against them,
simply on an executive determination that there is ``reason to
believe'' that the alien ``may commit'' a ``terrorist activity.''
To appreciate the extraordinary breadth of this unprecedented
power, one must recall the expansive definition of ``terrorist
activity'' and ``engage in terrorist activity'' noted above. This bill
would mandate detention of any alien who the INS has ``reason to
believe'' may provide humanitarian aid to the African National
Congress, peace training to the IRA, or might get into a domestic
dispute or barroom brawl. There is surely no warrant for preventive
detention of such people, much less mandatory detention on a ``reason
to believe'' standard. Mr. Kmiec, defending the provision, suggests
that these examples are unlikely to arise. But the point is that any
provision so broad as to permit such applications is in no way narrowly
tailored to addressing true terrorist threats.
Current law is sufficient to meet the country's needs in fighting
terrorism. The INS is authorized to detain without bond any alien in a
removal proceeding who poses a threat to national security or a risk of
flight. It routinely does so. It also has authority, as illustrated in
recent weeks, to detain aliens without charges for up to 48 hours, and
in extraordinary circumstances, for a reasonable period of time.
This provision raises four basic concerns. First, it is plainly
unconstitutional, because it mandates detention of persons who pose no
threat to national security or risk of flight. If the Attorney General
certifies that an individual may provide humanitarian support to a
group that has engaged in a civil war, for example, the person is
subject to mandatory detention, without any requirement that the alien
currently poses a threat to national security or risk of flight.
The mandatory detention provision is a form of preventive detention
prior to trial. But the Supreme Court has held that ``[i]n our society,
liberty is the norm, and detention prior to trial or without trial is
the carefully limited exception.'' United States v. Salerno, 481 U.S.
739, 755 (1987). Preventive detention is constitutional only in very
limited circumstances, where there is a demonstrated need for the
detention--because of current dangerousness or risk of flight--and only
where there are adequate procedural safeguards. Salerno, 481 U.S. at
746 (upholding preventive detention only where there is a showing of
threat to others or risk of flight, where the detention is limited in
time, and adequate procedural safeguards are provided); Foucha v.
Louisiana, 504 U.S. 71, 80 (1992) (civil commitment constitutional only
where individual has a harm-threatening mental illness, and adequate
procedural protections are provided); Zadvydas v. Davis, 121 S., Ct.
2491, 2498-99 (2001) (explaining constitutional limits on preventive
detention, and interpreting immigration statute not to permit
indefinite detention of deportable aliens). Where there is no showing
that the alien poses a threat to national security or a risk of flight,
there is no justification whatsoever for detention, and any such
detention would violate substantive due process.
Second, the detention authority proposed would allow the INS to
detain aliens indefinitely, even where they have prevailed in their
removal proceedings. This, too, is patently unconstitutional. Once an
alien has prevailed in his removal proceeding, and has been granted
relief from removal, he has a legal right to remain here. Yet the
Administration proposal would provide that even aliens granted relief
from removal would still be detained.\5\ At that point, however, the
INS has no legitimate basis for detaining the individual. The INS's
authority to detain is only incident to its removal authority. If it
cannot remove an individual, it has no basis for detaining him.
Zadvydas v. INS, 121 S. Ct. 2491 (holding that INS could not detain
indefinitely even aliens ruled deportable where there was no reasonable
likelihood that they could be deported because no country would take
them).\6\
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\5\ In many instances, an alien who poses a threat to national
security will not be eligible for discretionary relief.
\6\ While the Court in Zadvydas left undecided the question of
indefinite detention of a deportable alien where applied ``narrowly to
`a small segment of particularly dangerous individuals,' say suspected
terrorists,'' 121 S. Ct. at 2499, the Court did not decide that such
detention would be permissible since the question was not presented.
Moreover, the Administration's proposed definition of ``terrorist
activity'' would not be limited to a narrow, ``small segment of
particularly dangerous individuals,'' as te Court in Zadvydas
contemplated, but to garden variety criminals, barroom brawles, and
those who have supported no violent activity whatsoever, but provided
humanitarian support to the Afican National Congress. It begs credulity
to characterize such an open-ended authority as limited to a ``small
segment of particularly dangerous individuals.''
---------------------------------------------------------------------------
Third, the standard for detention is vague and insufficiently
demanding, and raises serious constitutional concerns. It is important
to keep in mind that the bill proposes to authorize mandatory and
potentially indefinite detention. That is a far more severe deprivation
of liberty than holding a person for interrogation or trial. Yet the
INS has in litigation argued that ``reason to believe'' is essentially
equivalent to the ``reasonable suspicion'' required for a brief stop
and frisk under the Fourth Amendment.The Constitution would not permit
the INS to detain an alien indefinitely on mere ``reasonable
suspicion,'' a standard which does not even authorize a custodial
arrest in criminal law enforcement.
Fourth, and most importantly, it is critical to the
constitutionality of any executive detention provision that the person
detained have a meaningful opportunity to contest his detention both
administratively and in court. INS v. St. Cyr, 121 S. Ct. 2271 (2001).
I read the judicial review provision as authorizing judicial review of
the evidentiary basis for detention, and as authorizing the reviewing
court to order release if the evidence does not support the Attorney
General's determination that the alien poses a current threat to
national security. In any event, such review would be constitutionally
required: aliens may not be deprived of their liberty without notice of
the basis for the detention and a meaningful opportunity to confront
and rebut the evidence against them. See, e.g., Landon v. Plasencia,
459 U.S. 21, 34 (1982); Kwong Hai Chew v. Colding, 344 U.S. 590 (1953);
American-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045 (9th Cir.
1995), Rafeedie v. INS, 880 F.2d 506 (D.C. Cir. 1989); Al Najjar v.
Reno, 97 F. Supp.2d 1329 (S.D. Fla. 2000); Kiareldeen v. Reno, 71 F.
Supp.2d 402 (D.N.J. 1999). Unilateral executive detention knows no
place in American law.
The PATRIOT Act's mandatory detention provision share many of the
above flaws. Most problematically, it, too, authorizes preventive
detention without any showing that an alien poses any current danger to
national security or a risk of flight. It only requires the Attorney
General to certify that an alien ``is described'' in various
deportation or exclusion provisions. These include aliens who the
Attorney General believes may be mere members of designated foreign
terrorist groups, and any alien involved in a domestic dispute or a
barroom brawl in which a weapon or other object was used with intent to
endanger person or property. Even if such aliens pose no threat to
others or risk of flight, they are subject to mandatory detention.
In addition, like the Administration's proposal, the PATRIOT Act
permits indefinite detention. The PATRIOT Act adds a requirement that
the government file immigration or criminal charges against an alien
mandatorily detained within 7 days, but that is a largely irrelevant
protection, because the provision authorizes indefinite detention even
of those aliens who prevail in their deportation proceedings. The
requirement that charges be filed means nothing if the resolution of
those charges in the alien's favor has no effect on the detention.
The judicial review provision of the PATRIOT Act marks an
improvement on the Administration proposal by clarifying explicitly
that judicial review would include review of the merits of the Attorney
General's certification decision, and by barring delegation below the
INS Commissioner of the certification decision. But like the
Administration provision, it affords the alien no administrative
opportunity to defend himself, and therefore violates due process.
d. the bill resurrects ideological exclusion, barring entry to aliens
based on pure speech
The bill would also amend the grounds of inadmissibility. These
grounds would apply not only to aliens seeking to enter the country for
the first time, but also to aliens living here who seek to apply for
various immigration benefits, such as adjustment of status to permanent
resident, and to permanent residents seeking to enter the country after
a trip abroad.
The bill expands current law by excluding aliens who ``endorse or
espouse terrorist activity,'' or who ``persuade others to support
terrorist activity or a terrorist organization,'' in ways that the
Secretary of State determines undermine U.S. efforts to combat
terrorism. Section 201(a)(1). It also excludes aliens who are
representatives of groups that ``endorse acts of terrorist activity''
in ways that similarly undermine U.S. efforts to combat terrorism.
Excluding people for their ideas is flatly contrary to the spirit
of freedom for which the United States stands. It was for that reason
that Congress repealed all such grounds in the INA in 1990, after years
of embarrassing visa denials for political reasons.
Moreover, because of the breadth of the definitions of ``terrorist
activity" and ``terrorist organizations,'' this authority would empower
the government to deny entry to any alien who advocated support for the
ANC, for the contras during the war against the Sandinistas, or for
opposition forces in Afghanistan and Iran today. Because all of these
groups have used force or violence, they would be terrorist
organizations, and anyone who urged people to support them would be
excludable on the Secretary of State's say-so.
The PATRIOT Act shares this problem, and goes further, by rendering
aliens deportable for their speech. However, it qualifies the
deportation provisions with the requirement that the speech be intended
and likely to promote or incite imminent lawless action, the
constitutional minimum required before speech advocating illegal
conduct can be penalized. Brandenburg v. Ohio, 395 U.S. 444, 447
(1969).
CONCLUSION
In responding to terrorism, we must ensure that our responses are
measuredand balanced. Is it a measured response to terrorism to make
deportable anyone who provides humanitarian aid to the African National
Congress today? Is it measured to deport aliens for donating their time
to a pro-life group that once engaged in an act of violence but no
longer does so? Is it measured to deport an immigrant who sends human
rights pamphlets to an organization fighting a civil war? Is it
measured to label any domestic dispute or barroom fight with a weapon
an act of terrorism? Is it measured to subject anyone who might engage
in such activity subject to mandatory detention? Is it measured to
restore exclusion for ideas? Is it measured to make aliens deportable
for peaceful conduct fully lawful at the time they engaged in it?
I submit that the Administration's proposal falls short in all of
these respects. The overbreadth of the bill reflects the overreaction
that we have often indulged in when threatened. The expansive
authorities that the Administration bill grants, moreover, are not
likely to make us safer. To the contrary, by penalizing even wholly
lawful, nonviolent, and counterterrorist associational activity, we are
likely to drive such activity underground, to encourage extremists, and
to make the communities that will inevitably be targeted by such broad-
brush measures disinclined to cooperate with law enforcement. As
Justice Louis Brandeis wrote nearly 75 years ago, the Framers of our
Constitution knew ``that fear breeds repression; that repression breeds
hate; and that hate menaces stable government.'' Whitney v. California,
274 U.S. 357, 375 (1927). In other words, freedom and security need not
necessarily be traded off against one another; maintaining our freedoms
is itself critical to maintaining our security.
The Administration's bill fails to live up to the very commitments
to freedom that the President has said that we are fighting for. As the
Supreme Court wrote in 1967, declaring invalid an anti-Communist law,
```It would indeed be ironic if, in the name of national defense, we
would sanction the subversion of one of those liberties--the freedom of
association--which makes the defense of the Nation worthwhile.'' United
States v. Robel, 389 U.S. 258, 264 (1967).
Chairman Feingold. Thank you, Professor. I thank all the
witnesses.
We will now begin five-minute rounds of questions and I
will begin with some questions for Professor Cole.
You have just been talking about the mandatory detention
provisions of the administration's proposed anti-terrorism
bill. Attorney General Ashcroft asserted at our hearing last
week that he only sought authority to detain individuals who
were out of status or otherwise deportable.
Can you tell us why you believe that original proposal
actually went a lot farther than that?
Mr. Cole. Well, first of all, he already has that
authority, Senator Feingold. Under current law, any alien who
is out of status can be put into deportation proceedings, can
be denied bond if there is any basis to believe that he poses a
risk to national security or a risk of flight, and the INS does
it all the time. So if that is all he is asking for, he doesn't
need to ask for it. He already has that authority.
What he is asking for is the authority to detain people
indefinitely, even if they win in their deportation
proceedings. Under current law, he can only hold them as long
as the deportation process is going on. Once the alien prevails
and there are no appeals left, the alien has to be freed.
But under the provision that they propose, even an alien
granted relief from removal--say, an alien who is eligible for
asylum and granted asylum, or is eligible for adjustment of
status and is granted adjustment of status and has the right to
remain here permanently--would be subject to indefinite
detention.
Secondly, what he is seeking goes further than current law
because under current law he does have to make a showing that
there is a threat to national security or a risk of flight.
Under his provision and under the House bill, no such showing
is required, and I know of no precedent whatsoever for an
executive branch official to be able to lock somebody up
without making a showing that the person poses some threat. At
a minimum, we have to show that the person poses some threat,
but that is not what is required under either provision.
Chairman Feingold. Thank you. I think you already alluded
to the apparent House compromise on the mandatory detention.
But the compromise, as has been said by the Attorney General,
would require the Attorney General to file charges of an
immigration violation against the immigrant within seven days
of detention, or require the Attorney General to release the
immigrant if charges are not filed.
Could you again detail what I thought you said, which is
that you do not believe that is satisfactory?
Mr. Cole. That certainly doesn't solve the problem. Even my
colleague on the panel here, Dean Kmiec, acknowledges that
there are very serious constitutional problems with authorizing
any detention without charges beyond 48 hours. The Supreme
Court has said 48 hours is the limit, except in absolutely
extraordinary circumstances.
Yet, the House compromise would give the Attorney General
the authority to hold without charges for seven days on a mere
showing that an alien was a member of a group, not that the
alien did anything wrong, not that the alien engaged in any
terrorist activity, but merely that is a member of a group.
That raises serious constitutional concerns.
The second problem is that the requirement of filing
charges within seven days is really meaningless if the result
of the proceeding in which the charges are filed doesn't affect
the authority to detain. Yes, you have to file charges. Well,
of course, the Attorney General is going to be able to file
charges. If he has reasonable grounds to believe that an alien
is described in the deportation provisions, he will be able to
file charges under those provisions.
But the statute provides he can hold the person even if the
person wins in those deportation proceedings. So it is
indefinite detention. It has been erroneously reported in the
press--I am not clear why--as having resolved that problem.
But I think the important point is that the Attorney
General today has the authority to detain any immigrant who has
any kind of status violation and poses a threat to national
security and a risk of flight. That is not questioned, and
there has been no showing that that is insufficient to meet our
concerns about detention.
Chairman Feingold. I appreciate that clarification.
At our hearing last week, Senator Kennedy asked Attorney
General Ashcroft about the ability of immigrants to seek
judicial review of the Attorney General's decision to detain
them indefinitely. The Attorney General responded by saying
that seeking habeas relief is sufficient. He said, ``Habeas can
be a very broad remedy and you can allege virtually anything in
a petition. You can allege that the Attorney General either
relied on false documents or bad information, or made an
arbitrary rather than a discretionary decision.''
Do you agree that a petition for habeas relief is
sufficient to address concerns about judicial review?
Mr. Cole. Well, I think a petition for habeas corpus that
permits the court to address the objective basis for the
detention and to authorize release of any alien who does not
present a danger or a risk of flight would be sufficient. But,
unfortunately, that is not authorized under the House bill.
Under the House bill, there is judicial review in habeas of
the Attorney General's certification. But, again, all the
Attorney General has to certify is that he has reasonable
grounds to believe that an individual has conducted terrorist
activities, so broadly defined to include, as I said, virtually
every violent crime.
We don't allow mandatory, absolute detention of every
citizen accused of a violent crime, only those whom we find
either pose a danger to others or are a risk of flight. That is
a standard we have lived with for 200 years. We have lived with
it on the criminal side, we have lived with it on the
immigration side. It is constitutionally compelled. Judicial
review doesn't really solve the problem if the standard for
detention doesn't include a requirement of current
dangerousness or risk of flight.
Chairman Feingold. Thank you, Professor.
We will now turn to Senator Sessions for his first round of
questions.
Senator Sessions. Thank you, Mr. Chairman.
Just briefly on the immigration circumstances, maybe
Professor McGinnis could help us here, but as I understand it,
under the Constitution we have no requirement to admit anyone
into the country. No one has a constitutional right to be
admitted into the United States.
Is that correct?
Mr. McGinnis. That is what I understand, Senator.
Senator Sessions. Therefore, it would flow, it seems to me,
that as we do in normal criminal law, if you have an ability to
put someone in jail for a crime, you have the ability to let
them out of jail on condition during the term of that offense.
So it seems to me that we could allow persons into the United
States under restrictions. In fact, we do that, do we not?
Mr. McGinnis. I understand that, Senator, yes.
Senator Sessions. So I guess my view of it is that this
isn't a normal constitutional circumstance where we are dealing
with an American citizens. Persons are here by permission, and
if they are here by permission and we have a right to place
constraints on them and requirements on them, it seems to me
that a wise nation would try to craft laws that would say that
those persons who are here should not pose a threat to the good
order, peace and dignity of the people of the United States.
Could you comment on that?
Mr. McGinnis. Yes, Senator. If I might just add to that, I
think it is very important to understand that it has been well-
known that if, for instance, a country attacked us that we have
in the past and from the very early Congresses had statutes
permitting the detention of aliens of that country because they
owe loyalty to our enemy rather than to the United States. So
it is just very clear that under those conditions, we can
detain people indefinitely until we deport those aliens.
What we face today is a different kind of war. We are not
being attacked by some nation state. We are being attacked by
what I would call an irregular militia or a group of
guerrillas. We certainly don't want to detain willy-nilly
everyone who could be from a nation that is putting forth these
guerrillas against us, and that is why we need a finer-grained
authority that permits the Attorney General to detain people--
as I say, I don't want to get into exactly how long and the
details of this, but to detain aliens for some period of time
if they are a threat to national security.
So we are doing what is common in the common law. We are
translating the law to deal with a new condition, a totally
different kind of war.
Senator Sessions. Well, I would agree with that. As a
prosecutor, having wrestled with these matters, if you are
dealing with a bank embezzler, or even a bank robber for that
matter, the requirements are pretty stringent for surveillance
and/or detaining one of those individuals. But if you are
dealing with an alien who you have some evidence less, let's
say, than proof beyond a reasonable doubt that they are a
terrorist, what should a wise nation do? That is a question
that I have wrestled with.
Mr. Kmiec. Senator, if I might add, this is a topic that
has not been totally invisible to the Supreme Court of the
United States. In this last term, they considered the statute
which this Congress has enacted which authorizes, among other
things, post-removal detention, and the issue was how long.
Now, in many cases the INS has difficulty finding countries
who are willing to take people who have committed felonies in
this country and who are national security risks and who are
out of status in terms of immigration. That is no surprise that
a welcome mat isn't out in every country around the world.
It is very important to remember that in its most recent
decision the Supreme Court said there was a reasonable time
limit for how long you could hold someone after a removal
proceeding. But they very explicitly said that we were not
dealing with the circumstance, as Professor McGinnis just said,
that we confront now. In fact, Justice Breyer articulated that
we are not dealing with the circumstance of terrorism where the
ability to hold an alien under those circumstances would be
different.
So the Supreme Court has acknowledged what we all know and
what was stated in your question, that immigration is an aspect
of our sovereignty; it is an aspect of our foreign policy. For
that reason, what this Congress provides by way of immigration
law is the sum and substance of due process for those seeking
admission to the country of the United States.
With regard to those who are already here and have some
form of permanent residency, the Court's standards are a bit
different, but they are not clearly of the same level as apply
to American citizens. There is still a differentiation. It is
not entirely clear where the Court draws the line between
American citizens and aliens, but the one thing that is clear
is that those who have been members of groups that have, for
example, been involved in Nazi persecution have been removed
from this country for that membership alone, without any
showing that they were actively involved in the prison camp
activities in terms of those Nazi atrocities.
So your question, I think, goes to the heart of the
emergency situation and the differentiation between aliens who
are here as our guests and American citizens.
Mr. Halperin. Senator, would you permit another comment on
that for just a second?
Senator Sessions. Yes.
Mr. Halperin. As has already been hinted at, the Supreme
Court has made it absolutely clear that the Constitution and
the Bill of Rights protects people who are in this country
whether they are citizens or not.
Senator Sessions. It protects them, but it does not
guarantee them automatic citizenship.
Mr. Halperin. It doesn't give them citizenship, but it
gives them constitutional rights. And if the Government wants
to move to deport them, it obviously has a broader basis to do
that, but it has to have the nexus. I think what Professor Cole
is saying is if this provision said you can detail people who
you believe were active members or active supporters or knowing
supporters of a terrorist organization that had planned or
engaged in terrorist acts in the United States and you could
hold that person until you deported them, nobody would object
to that. But that is not what the language says.
We sit here enacting legislation with one image in mind,
and 20 years later, by a different administration with less
respect for civil liberties, it gets used against a very
different group of people who are not terrorists in a situation
which nobody contemplated when you enacted the legislation.
Senator Sessions. Well, what about the situation where a
person comes here and they have been active in a terrorist
organization that has declared war on the United States and has
executed war acts against the United States, and we did not
know it when they came and we find out later?
Mr. Halperin. Then you lock them up and deport them.
Senator Sessions. On what basis?
Mr. Halperin. On the basis that they pose a threat to
national security.
Senator Sessions. Well, the mere fact, Mr. Cole says, that
they are a member of an organization is not proof that they are
a threat to the United States.
Mr. Halperin. No. He said--
Mr. Cole. If I could respond--
Senator Sessions. In your comments to the Washington Post,
you said today's terrorist is tomorrow's government, and that
we have no right--
Chairman Feingold. I will let Professor Cole respond to
that and then that is past the time and we will go to Senator
Durbin.
Senator Sessions. You also said that people have a right to
support the lawful activity of any group they choose.
Mr. Cole. Right.
Senator Sessions. So what you are saying is just a member
of the group and supporting the group is not a basis, as Mr.
Halperin said, to remove somebody.
Mr. Cole. That is right, and the reason I say that is
because the Supreme Court has said it time and time again, and
it has said it with respect to the Communist Party, which this
Congress had found was a foreign organization engaged in
sabotage and terrorism directed at the overthrow of our country
by force and violence.
Nonetheless, the Supreme Court said you cannot penalize
people for their mere association with the Communist Party.
Whether they are immigrants or citizens, the Court has said
that that is not permissible.
To your specific question about someone who comes in who is
a member of Al Quaeda working to engage in further attacks,
that person could--
Senator Sessions. No, not working to engage, just a member.
We have no proof that they are working to engage. That is the
problem facing law enforcement. They are here, a member of a
group, and we don't have the proof to arrest them for planning
an attack, or we would arrest them.
Mr. Cole. Two responses to that. One is that the
Constitution says that you cannot presume from mere membership,
whether the person is an immigrant or a citizen, that that
person is engaged in illegal activity.
Number two, it might be permissible--on the enemy alien
analogy that Professor McGinnis has identified, it might be
permissible to target only members of Al Quaeda or whatever
group it is that attacked us. But this bill does not do that.
This bill says that any alien who is engaged in any minor crime
of violence can be subject to mandatory detention without a
finding of dangerousness.
So that is not enemy aliens. This is any alien who is
engaged in a minor act of violence; also, any alien who
provides humanitarian support to the IRA or the ANC. Those are
not organizations that are attacking us.
Senator Sessions. I think you are over-reading that.
Chairman Feingold. Professor Cole, thank you.
Senator Durbin?
Senator Durbin. Thank you very much, Mr. Chairman.
I would like to just preface this by putting a little
perspective on this. Prior to September 11, this committee had
held hearings with the Federal Bureau of Investigation in which
we asked some very hard questions about their activities and
their infrastructure, and I think that the testimony was very
clear that when it comes to the infrastructure to receive,
evaluate, process and distribute information, the Federal
Bureau of Investigation is not where it should be.
What we are debating today are changes in the law to
provide additional information to the Federal Bureau of
Investigation. There are many of us who think this is an
important debate and that there are elements of their request
that should be granted, but I want to go back to first
principles here.
Before we expand the universe of information, we ought to
ask the basic question as to whether or not the archaic
computers and information systems currently at the Federal
Bureau of Investigation are up to speed to fight this war. I
think the answer is clear: they are not.
I am going to address the constitutional issues and I am
glad we are making this the focus of the hearing, but I hope
that this committee, and particularly the anti-terrorism bill,
will look to this issue, too, because giving all of the
opportunity for accumulating information to the FBI and no
wherewithal to process it, evaluate it, share it and use it to
defend America is, I think, at best, a useless gesture.
Mr. Kris, I have read the letter which you have brought
here, and it was very clear to me that the Department of
Justice is trying to analyze the court cases when it comes to
the FISA investigations as opposed to the Fourth Amendment.
The thing that I find interesting is that the courts have
said, I think, consistently we are going to draw a pretty clear
line between domestic security and foreign intelligence. Those
are two different worlds, and when it comes to domestic
security, that is where we are comfortable. When it comes to
establishing probable cause for the commission of crime, that
is where the courts can help. But when it comes to foreign
intelligence, this is a new world; this is the executive
branch. There are areas there where we are not altogether
certain that we can make the fine distinctions that are
important to draw the line.
Now, I think that has been the basis of the law and the
creation for these FISA authorities, but I will also tell you
that I think your concluding argument from the Department of
Justice here, and I am going to quote a couple of lines from
it, really tells us what we are up against as a Nation and as a
committee evaluating this.
It says in this letter which has been sent by Assistant
Attorney General Dan Bryant, ``September 11th's events
demonstrate that the fine distinction between foreign
intelligence-gathering and domestic law enforcement has broken
down. Terrorists supported by foreign powers or interests lived
in the U.S. for a substantial period of time, received training
and killed thousands of civilians by hijacking civilian
airlines. The attack, while supported from abroad, was carried
out from within the United States itself and violated numerous
domestic criminal laws. Thus, the nature of the national
security threat, while still involving foreign control and
requiring foreign counterintelligence, also has a significant
domestic component which may involve domestic law
enforcement.''
What I read from this is that this line of demarkation,
according to the Department of Justice, is gone. And if that
line is gone because of the nature of the threat against the
United States, then I think we have a larger question than we
are even addressing today, and that is whether the body of law
that has brought us to this point is sufficient.
If we accept that premise, if that is where we are
starting, that we can no longer draw a line between foreign
intelligence and domestic security, and if we are going to
protect America we have to err on the side of assuming
everything is foreign intelligence and the Fourth Amendment
does not apply, then I think things have changed dramatically.
Mr. Kris, would you respond?
Mr. Kris. Yes. I don't think it is our contention that
foreign intelligence includes everything. None of our
provisions would seek to change the definition of the term
``foreign intelligence information'' in the bill or in FISA
right now.
I think what you are putting your finger on is a breakdown
in the rigid distinctions that used to exist. In the Cold War
era, we did law enforcement surveillance on the Mafia or on
drug dealers and we did counterintelligence surveillance on
countries that were spying on us, and there was a fairly clear
distinction between those two worlds. With the increase in
terrorism and the expansion of some of our criminal laws as
well, I think there is an increasing coming together of those
worlds.
The question, I think, that is presented by our amendment
to FISA with respect to purpose is how much foreign
intelligence purpose is required to keep us under the foreign
intelligence constitutional standards and not under the
ordinary criminal standards.
Senator Durbin. May I just say at this point, as I
understand it, under the old standard that we are addressing
you had to say to establish this FISA eavesdropping or
surveillance that it was the purpose, the gathering of
information for foreign intelligence.
Mr. Kris. That is what the statute says currently.
Senator Durbin. And the proposed amendment says ``a
purpose.'' Now, the courts have said once you get in pursuit of
foreign intelligence information, you can develop information
that leads to a criminal prosecution. They have acknowledged
that fact. It may lead to that.
Mr. Kris. Yes.
Senator Durbin. But if you lower that standard at the
start, at the threshold, and say that it just has to have some
foreign intelligence connection or nexus and from that point
forward you can go to criminal prosecution, what is left of the
Fourth Amendment in these cases?
Mr. Kris. Well, I think what our letter says and what the
current--there is a lot of different legislation, I guess, that
is on various tables, but the letter here reflects ``a
significant purpose,'' not just ``a purpose.'' And our
conclusion as reflected in the letter is that that is enough to
satisfy the Fourth Amendment.
``A significant purpose,'' I think, is a meaningful
standard. It would exclude an insignificant purpose. But what
it also reflects is that in many of these cases, not in all of
them, there will be law enforcement equities that are
implicated by the activity that is under surveillance.
We need to be able to coordinate between our law
enforcement authority elements in the Government and our
intelligence in the Government so that we can have a coherent,
cohesive response to an attack like the one we experienced on
September 11 and not end up in a situation where we have a
splintered, fragmented approach and the left hand and the right
hand don't know what each other is doing.
Senator Durbin. Mr. Chairman, I am sorry that the others
can't respond because I would like to hear their response. My
time is up. I would like to make one point in closing.
I sat down last week with a man who works for the
Department of Justice who has spent the last several years
prosecuting Osama bin Laden terrorists. He probably knows more
about the subject than almost anyone. I said to him, what is
the one thing you need to be more effective in your prosection?
He said we have to look at this FISA provision; we have to find
a way to deal with the line that has been created that doesn't
work when it comes to terrorism.
That is the struggle I am facing in my mind here trying to
resolve his need to stop terrorism and our need to protect
these constitutional rights. I hope we will have a chance for
another round of questions.
Chairman Feingold. Thank you, Senator Durbin.
Let me just allow Mr. Halperin and Mr. Berman to quickly
respond to that, and then we will go to the second round.
Mr. Halperin. Can I just make three quick points? One is we
now have had an admission by the Department of Justice that it
is no longer prepared to defend the constitutionality of its
original proposal which it asked the Congress to pass in five
days. I urge you to underline the need to read the rest of it
very carefully because there are things in there, as well,
that, on being pressured, they will not be able to defend.
Second, the Justice Department says that it is not trying
to change the definition of foreign intelligence information,
but it doesn't use it in the bill. This bill would be immensely
improved if everywhere the phrase ``foreign intelligence
information'' appears, you put a comma, ``as defined in FISA,''
comma. I urge you, based on what was said, to do that.
Third, I think we are in a new world, and I speak here only
for myself, in dealing with foreign terrorism that operates in
the United States exactly as described in the letter. But the
changes we make to deal with that ought to be limited to
dealing with terrorist organizations that operate abroad and in
the United States.
So if you went through the bill and everywhere you talked
about information-sharing or holding aliens in various
situations, if you limit it in this case to information
relating to terrorist groups that operate in the United States
and abroad, the information-sharing and all the provisions,
this bill would be much less dangerous and much less troubling
to all of us.
The problem is the Justice Department is trying to get that
authority not just for this disaster that we have in our minds
and this very real threat, but for all counterintelligence. We
need to remember that a different Justice Department thought
the whole anti-war movement was being directed from Hanoi and
therefore was a foreign counterintelligence organization. Let's
limit this and we will make it much better.
Chairman Feingold. Thank you.
Mr. Berman, briefly, please.
Mr. Berman. It can be limited. We limit it to terrorism or
we do the dual-tap authority and coordinate between the two
branches, which the Senate Intelligence Committee recommended.
Finally, I think the real danger here is a catch-22. The
constitutional issue will get raised, but it will get raised in
a criminal prosecution where, if the Justice Department is
wrong, there will be suppression of evidence and a terrorist
may get off.
The problem with the innocent target of this expanded
surveillance is that they may never know, because there is no
notice, it goes on forever. And when they terminate it and say
there are no grounds here, it never goes to them. So the
violation of the Constitution has no remedy. That is why
constitutional policy is important and that is why the Congress
has a role here.
Chairman Feingold. Thank you, Mr. Berman.
We will start a second round.
Back to Professor Cole, I have a question that does not
relate directly this bill of the administration, but addresses
the Justice Department's conduct in response to and in pursuit
of the investigation of the events of September 11. Obviously,
they have a very tough job to do.
News reports indicate that the Justice Department has
detained more than 500 people, most of them Muslims and Arabs,
since the September 11 attacks, but the Justice Department has
not charged a single person with a crime related to the
attacks. Again, I believe that the Attorney General and the FBI
Director, Mr. Mueller, and the men and women at the Justice
Department have worked incredibly hard and have for the most
part conducted themselves in an exemplary fashion.
But some have raised concerns that innocent people have
been unfairly targeted and detained during the course of this
investigation. In response, Director Mueller has said that his
agency is targeting people ``based on predications that the
individual may have information relating to the attacks.''
Let me ask two questions in connection with that. First, do
you believe that the FBI may be casting a net that is too wide
and ensnaring innocent people in its grasp? Secondly, what do
you believe can be done to ensure that innocent people are not
unfairly targeted and detained?
Mr. Cole. Well, obviously I am not privy to the FBI's
information with respect to each of these 500 people, so it is
hard to make any kind of definitive judgment without that
information.
I do think it is fair to assume that when 500 people have
been locked up and none of them have been charged with a crime
that many, and probably most of those people are entirely
innocent of the crime. What law enforcement is doing is using
the pretext of other offenses, sometimes minor traffic
offenses, to lock them up for extended interrogation in
custodial settings. I think that raises some questions of
policy. I don't think it is illegal. Pretextual law enforcement
is permitted.
That brings me to the second point, which is that the fact
that the Government has this power, the fact that the
Government can respond by going out and locking up 500 people
without charging any of them with being involved with the crime
illustrates how expansive our powers already are, and suggests
that the kinds of expansions that the Government is seeking,
particularly in treating people as guilty solely for their
political associations, and then also authorizing indefinite
detention of those people, are unnecessary.
Chairman Feingold. Thank you, Professor.
Mr. Berman, Dean Kmiec writes in his testimony that the
extension of trap and trace authority to the Internet poses no
constitutional issue because the courts have previously held
that pen register information is not subject to constitutional
protection, and that if the proposed language is explicit that
the content of the communication is not included.
You have talked about this some. Do you agree that the
legislation is clear enough that it would not permit the
Government to obtain content under this new authority, and
would you specifically address whether the House bill provides
adequate protection?
Mr. Berman. Yes. I think the Court has said in a pen
register, where it is gathering dialed numbers, that does not
pose a constitutional issue. But the pen register today, both
its technology--the House and Senate both wrestled with
Carnivore, the ability under a pen register to gather both the
content and the transactional information off a switch in a
computer network.
The language in the statute does not track that it is
looking for IP addresses or the origin and destination, as the
Attorney General testified before this committee. It adds a
series of terms without explanation or legislative history, and
we are dealing with a plain reading which talks about dialing,
routing, addressing, signaling.
When we have a discussion with the Justice Department, they
say ``we don't want to include the subject line of e-mails,''
which is content. A whole message and a series of messages tell
you the content. You understand this technology.
The initial URL may be an address, but then if you get
beyond the initial URL because you are looking for the
pornographic encrypted page--there have been reports that there
may have been that kind of page on the Internet. Once you are
scrolling through those pages under a pen register statute, you
are raising constitutional questions because you are collecting
significant content.
The Justice Department comes back and says the section does
say we don't want content. But when you discuss with them what
do they mean by content, they say ``what do you mean by
content?'' I think we need to clarify that in the statute.
Chairman Feingold. Let me ask you another one concerning a
matter that you raised, and I appreciate it, the computer
trespass provision. It sort of reads to me that it could apply
to a person who has used his work computer for personal
purposes, in violation of his employer's computer use policies.
Is that the case?
Mr. Berman. I think that that is a plain reading of the
statute. Someone thinks that someone is using their computer
time to engage in gambling. Does that mean that the FBI can be
called in and given permission to collect all of the e-mail and
the traffic on that computer at that address without getting a
Title III warrant? I think it says that.
They say it only applies to denial of service attacks,
where you have an emergency situation. We can draft emergency
situation language for denial of service where something is
happening at the computer and the ISP calls in the FBI and
there is no time to get a warrant and collect that information.
But it goes far beyond that. It says ``any unauthorized use.''
Does that mean violating the terms of service?
The Justice Department has now, I believe, said, well,
maybe terms of service don't count, or we can take that out.
But since you go through a network, you may have no terms of
service relationship with that ISP, and therefore they will
give you permission to look at any funny business. That
requires us to go back and say why can't they get a Title III
warrant?
A last comment. One of the problems is they are talking
about impediments, removing impediments. The Constitution and
all of the procedures that we set up in these laws are
impediments. We protect our civil liberties with impediments.
It is judicial review, it is auditing, it is keeping track, it
is having a justification. Those are impediments and it slows
up the process.
I believe we need to have those impediments to protect our
Constitution. It is a bureaucratic nightmare for law
enforcement and I think we can reduce it by carefully crafting
it, but we can't eliminate it because those impediments are
what keeps us from being a police state.
Chairman Feingold. Thank you very much, Mr. Berman. I
appreciate the answer.
Senator Sessions?
Senator Sessions. I would yield to Senator Specter.
Chairman Feingold. Senator Specter?
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Senator Specter. Thank you very much, Senator Sessions, for
yielding to me at this time. We are in the hearing room
adjacent considering bio/chemical weapons and I am ranking on
that subcommittee, but I wanted to come over here for a few
minutes.
Chairman Feingold. Thank you.
Senator Specter. I just learned that the subcommittee was
holding this hearing, and have been pressing for hearings
before the full committee because the full committee is going
to have to act, and act very promptly. I have expressed my
concern about the delays because there could be some
intervening act which could be attributable to the lack of
congressional action on the subject, and I believe that we have
to be careful as we craft this legislation.
A week ago yesterday, Attorney General Ashcroft was in
talking about the need for detention of aliens where there was
a deportation process. But the bill that they had presented did
not provide just for detention where there was detention, but
it was broader. I expressed the view that the authority existed
now, or if it didn't, we would give them that authority, but
not the way the statute was drafted, which left it up to the
Attorney General's discretion without any standards. Similarly,
on the issue of the Foreign Intelligence Surveillance Act, the
Attorney General testified that he only wanted content where
there was a statement of probable cause, but that is not the
way the bill worked.
Senator Hatch has scheduled a meeting of Republican
Senators for this afternoon, as I understand it, to tell us
what the bill is. Frankly, that concerns me because in the
hearing we had a week ago yesterday the Attorney General
testified for an hour and 15 minutes and the real technicians
who were there--the Deputy Attorney General, the Assistant
Attorney General, Criminal Division, and the Assistant Attorney
General, Legal Counsel--just shuffled some papers back and
forth on some of the precise points.
We have seen in past years a number of U.S. Supreme Court
decisions invalidating acts of Congress because there has not
been a sufficient deliberative process. The Supreme Court says
they have the authority to declare acts of Congress
unconstitutional when, in effect, they are not thought through.
Now, I have real questions about that on separation of
powers, but they do have the last word, and if we do not have
the deliberative process at work here--and I want to hear the
specifics and I am about to ask you a question, Mr. Kris. We
may have to do it in closed session.
Seven days is a protracted period of time, as the House
calls for detention, and changing the Foreign Intelligence
Surveillance Act to ``a significant purpose'' has a
significant--pardon me for using that word--problem
constitutionally. But maybe so, but maybe so, if we have a
showing as to what you need on intelligence-gathering.
In this room, we had protracted hearings on Wen Ho Lee as
to Attorney General Reno's declination of a FISA warrant, and
the difference between that and probable cause and that whole
range of technicalities. So it may be that, on a balancing test
where this is the quintessential area, police power versus
constitutional rights and a terrorist threat--everybody
acknowledges the horrendous problem we face and this is a
balancing matter, but we have to know the details.
Mr. Kris, what justification is there factually for
changing the standards under the Foreign Intelligence
Surveillance Act? Are you prepared to tell this subcommittee,
and hopefully this committee, that there is intelligence data
out there which can be gathered with a lesser standard under
FISA that you can't get on a probable cause statement which is
important for national security?
Mr. Kris. Well, consistent with my initial statement, I
will try to answer your question as fully as I can. There may
be a need to address it in a different forum.
Senator Specter. We are prepared to clear the room of even
Mr. Berman and Professor McGinnis and Dr. Halperin and the
whole works. We are prepared to clear the room or take you into
the side room.
Mr. Kris. I am at your disposal in that regard, but let me
begin with what I can say openly, and that is that the
``purpose'' amendment that we are advancing--and ``significant
purpose'' is the current language--I think is not so much
designed to expand the kinds of information that we can obtain,
but rather to ensure that when we get the information, we can
coordinate properly between the intelligence side and the law
enforcement side of the Government.
Senator Specter. Well, you want to make it available to law
enforcement.
Mr. Kris. Yes.
Senator Specter. That is a change. ``The purpose'' to ``a
significant purpose'' is a big change.
Mr. Kris. It is a change.
Senator Specter. But do you have a justification for it? Do
you face today problems which you can say to the Congress
warrant this expansion? If you do, I am prepared to give it to
you if there is a constitutional basis to defend it later
before the Court.
Mr. Kris. Well, constitutionally, of course, we do have the
letter that has come to you. As to the practical need for this,
let me say what I can say here.
Senator Specter. The letter? It doesn't weigh very much in
a Supreme Court argument.
Mr. Kris. Well, the letter obviously has legal analysis in
it that would be advanced in a brief if the issue were
presented to a court.
Senator Specter. It is really more than a matter of legal
analysis. It is a matter of a factual presentation as to what
your specific factual needs are.
Mr. Kris. And with respect to that, let me say sort of two
things. First, I heard Senator Durbin earlier discuss the fact
that he had met with Pat Fitzgerald, one of the UBL prosecutors
from New York, and Mr. Fitzgerald explained to him and Senator
Durbin recounted here the need for this.
There is also, of course, the GAO report, issued in July of
2001, commissioned by Senator Thompson, that says in the first
two sentences, ``Coordination between the FBI and the Criminal
Division has been limited in those foreign counterintelligence
cases where criminal activity is indicated and surveillance or
searches under FISA may be employed. And a key factor
inhibiting this coordination is the concern over how the FISA
court or another Federal court might rule on the primary
purpose of the surveillance or search in light of such
coordination.'' The GAO is a public document and it goes on at
length. There is also, of course, the AGRT report on the Wen Ho
Lee case which the Congress has in its full and unclassified
form which recounts this in some detail.
Senator Specter. Well, the red light is on and I will
respect the red light, and I thank the subcommittee for letting
me participate even though I am not on the subcommittee. I
think this really, with all due respect, should have been at
full committee because we all have to act on it right away.
Mr. Kris, I make a formal request of the Department through
you to make available to subcommittee members, and I will be in
attendance and I think others would be, in closed session, if
necessary, and today promptly the specifics as to what is
happening out there which leads you to conclude that you need a
different standard under FISA to be available for the criminal
prosecutors and what you need with respect to the detention.
If you can make a factual showing that can be defended
constitutionally, I think the Congress is willing to do it. I
even noticed Dr. Halperin and Mr. Berman nodding in the
affirmative. You don't get their affirmative nods too often on
an expansion of law enforcement powers.
Thank you very much, Senator Sessions. Thank you, Mr.
Chairman.
Chairman Feingold. Thank you, Senator Specter.
Let me just note that I agree with Senator Specter's
concern that there should be a full committee hearing on this.
The committee was prepared to do it. The objection came from
your side of the aisle.
Senator Specter. The full committee was prepared to do it?
Chairman Feingold. To have a hearing on this.
Senator Specter. When?
Chairman Feingold. Today. We had preferred that this would
be a full committee hearing.
Senator Specter. And there was an objection from
Republicans?
Chairman Feingold. As I understand it, on that side of the
aisle.
Senator Specter. I will take that up with President Bush.
Chairman Feingold. Senator Sessions, if you would do your
last round, I am going to try to conclude the hearing so that I
can attend a meeting with the Secretary of State.
Senator Sessions. Mr. Chairman, I don't know that I will
pursue this any further. I know we do have a time crunch. I
would offer for the record a letter from the Fraternal Order of
Police supporting this legislation.
Chairman Feingold. Without objection.
Senator Sessions. Also, letters from four former Attorneys
General--Griffin Bell, under President Carter, and Thornburgh,
Barr and Meese--all supporting this legislation.
Chairman Feingold. Without objection.
Senator Sessions. I would just say that most of the issues
we are dealing with--I guess Dean Kmiec referred to policy and
this legislation being crafted carefully not to conflict with
the Constitution. I think most people don't believe it
conflicts with the Constitution. It does require the amendment
of statutes concerning pen registers where Congress has placed
extra-constitutional restrictions on pen registers, trap and
trace. It doesn't mention mail cover, but we have rules for
mail covers that are done. So I have felt that for the most
part we are doing the right thing.
With regard to people who are here by permission,
immigrants, I feel like we have a reasonable basis to be more
restrictive. Even if we don't have proof beyond a reasonable
doubt that they are participating in an activity that plans to
kill Americans, we may have sufficient proof to ask them to go
home. So that is what we are wrestling with.
I do believe it is important for us to slow down and be
careful. I know a lot of people are scared that we are going to
fundamentally deprive ourselves of constitutional rights. I
don't see that here in this legislation, but it doesn't hurt to
slow down and be careful.
I am, as Senator Specter has said, a bit concerned that a
small group on our committee seems to be about to deliver us a
bill which we have not read or seen. I have had some interest
in it, and I know he has and I know Senator Kyl has been
interested in these issues for years. It is a little bit
frustrating, frankly, and that could be another cause for
delay.
Thank you, Mr. Chairman.
Chairman Feingold. I thank you.
I would ask unanimous consent that a statement by Senator
Thurmond be included in the record, without objection.
We will hold the record of the hearing open for a week, if
the witnesses or other organizations wish to submit additional
materials.
I also ask unanimous consent to put a statement by Senator
Maria Cantwell into the record, without objection.
That brings us to the conclusion of the hearing. As we all
know, the anti-terrorism legislation is on a fast track and
will be considered, in all likelihood, by the Senate soon. So I
do think it is terribly important that we had this hearing
today, and I think the Senate and the Nation will benefit from
your testimony.
Let me also reiterate something that the Chairman said when
he was here. This hearing focused on the constitutional issues
arising from the anti-terrorism legislation. I also believe
that we should review the serious civil rights issues that have
arisen as a result of our Nation's response to the September 11
attacks, like acts of violence and discrimination against Arab
Americans, Muslim Americans and South Asian Americans. We are
looking forward to working with Senator Leahy to arrange for a
hearing of the full committee, or at least the subcommittee, on
that matter.
I thank you, and the hearing is adjourned.
[Whereupon, at 11:26 a.m., the subcommittee was adjourned.]
[Questions and submissions for the record follow.]
[Additional material is being retained in the committee
files.]
QUESTIONS
Questions submitted by Senator Sessions for David Kris
1. Practical Effect of Changing ``the purpose'' to ``a significant
purpose'' in FISA
Mr. Kris, under the Foreign Intelligence Surveillance Act (FISA),
to issue a surveillance order, the court must find probable cause that
the target of the surveillance is an agent of a foreign power,
including a member of an international terrorist group, and the
government must certify that ``the purpose'' of the surveillance is to
obtain foreign intelligence information.
Under current law, I understand that our intelligence personnel can
share information with our criminal investigators. However, if the
criminal investigators provide direction back to the intelligence
officers concerning what evidence is needed to convict, for example, a
thief who is about to supply a terrorist with stinger missiles, the
government must either obtain a criminal surveillance warrant, if
possible, or not take the direction from the criminal investigators.
Thus, in a hypothetical case, if the government does not have
sufficient information to identify the thief and obtain a criminal
surveillance warrant, it may not be able to stop a sale of stinger
missiles to a terrorist by arresting the thief. Is that correct?
If Congress changes ``the purpose . . . to obtain foreign
intelligence information'' to ``a significant purpose,'' would FISA
then allow criminal investigators to provide more assistance to our
intelligence officers in gathering evidence and arresting a suspect for
violation of criminal law before he supplies deadly weapons to a
terrorist?
Constitutionality of ``a significant purpose''
Mr. Kris, is it true that the ``primary purpose . . . to obtain
foreign intelligence information'' test was developed prior to the
enactment of FISA and was the product of a Fourth Amendment balancing
test that weighed the suspect's privacy interests against the
President's power to protect the people from foreign threats?
Is it true that the primary purpose test dealt with determining
when the Government could conduct warrantless surveillance?
Is it correct that the Foreign Intelligence Surveillance Act
(FISA), which Congress enacted in 1978, statutorily requires a warrant
to conduct foreign intelligence surveillance even when the Constitution
does not?
Is FISA more restrictive on the Government than the Fourth
Amendment to the Constitution?
If the statutory standard were lowered from ``the purpose'' to ``a
significant purpose,'' would the government still have to meet the
constitutional standard to obtain a FISA warrant from a court to
conduct surveillance?
And to take evidence gathered under the FISA warrant to trial,
would the Government have to convince a second judge that the evidence
was gathered consistently with the Constitution?
And during time of war, when the President's commander-in-chief
powers must be considered in the Fourth Amendment balance, could these
courts reasonably hold that a significant purpose to gather foreign
intelligence would suffice when the Government obtains a warrant to
conduct the surveillance?
Would changing the FISA standard to ``a significant purpose''
enable the Government to conduct FISA surveillance on ordinary
Americans or even criminal suspects for whom a court does not find
probable cause to believe that they are agents of a foreign power?
SUBMISSIONS FOR THE RECORD
Statement of Hon. Maria Cantwell, a U.S. Senator from the State of
Washington
The events of September 11th have changed us as a country forever.
The question that remains open is in what ways exactly will the change
be reflected? We must do all that we can to stop terrorism by finding
and disrupting terrorist activities here and abroad. But we must do
this without compromising the values that make Americans unique and
have allowed us to become great--value for the personal autonomy and
rights of the individual and for the tolerance of all regardless of
race or religion.
While I believe it is vitally important for our country to address
pressing issues of national security including the gathering of
intelligence information and rethinking how we coordinate domestic
security at our borders, we must not lose sight of the principles our
country is founded upon. We cannot and must not let the events of
September 11 cause us to indulge in violence against others based on
their race or their religious beliefs, and we cannot let fear of
further terrorist events cause us to make decisions now that do damage
to historic respect for the civil liberties and the privacy of
individuals.
I have been disheartened that my state has seen incidences of hate
crimes against ArabAmericans, Muslims and Sikhs in the wake of the
attacks. In the most serious incident by far, an individual has already
been charged with shooting at several people and setting fire to the
cars of worshippers outside a mosque in Snohomish. In addition,
Kulwinder Singh, a Sikh cabdriver, was harassed and physically
assaulted by a passenger in King County, and over 40 students from the
United Arab Emirates have withdrawn from Washington State University.
In Shoreline, a city just outside Seattle, people apparently scoured
the yellow pages searching for the word ``Arab'' only to leave a
frightening message on the answering machine of the Arabic Language and
Translation Service. I condemn this type of violence and hatred which
merely compound the horror of loss of life as a result of the terrorist
attacks.
Perhaps more alarming even than the physical violence and threats
that have been made, are the new prejudices that face many of our
citizens and residents. Our Arab and South Asian immigrants to
Washington state sought to move to America not just for economic
opportunity but for a way of life that embraced tolerance and
diversity. Yet today they live in fear of their neighbors. People of
Islamic faith, and others who fear that they may be confused for
someone of Islamic faith hide in their homes, fearful they will be the
target of persecution. This type of discrimination cannot stand. We
cannot let the fear of unknown terrorists cause us to engage in the
very type of intolerance and racial segregation that have dogged so
many countries.
We in Washington state have amongst us, as reminders of the
consequences of intolerance, many of the Japanese who were either
interned themselves or have family members who were victims of
internment. We cannot forget how unjustified our treatment of them was,
and we must learn from them and our history that the face of the enemy
must be distinguished from the physically similar face of our neighbors
who are loyal Americans. We must not pass laws that give the government
unfettered authority to indefinitely detain people who are legally in
this country or who are permanent residents of this country. To do so
is to reject the history and the lesson of the Japanese internment.
I have confidence that Americans are large enough in spirit to meet
the challenge of tolerance, and that these instances of physical
violence will not continue. I urge that we take a look inside ourselves
and recognize that the pain we feel is the also the pain felt by people
of Islamic faith, and others of Arab descent. They too are Americans.
They are people of faith. There is no real ``Islamic terrorist''--some
terrorists may believe in Islam, others may have other religious
beliefs--but it is the terrorism that we abhor, not the true religious
belief, or those who simply share those beliefs.
I also believe that we face another challenge right now. That
challenge rests largely with those who are members of the Judiciary
Committees here in the Senate and in the House--to stop and reflect how
we can continue to balance the unique freedoms and rights that come to
us as American citizens with the need to track and disrupt terrorists
at work in this country and abroad.
We have good reason to change our laws to improve the ability of
our law enforcement and intelligence communities to do their job. And I
strongly support many of the changes this Committee has been
considering. I am pleased that progress has been made on most of the
contentious provisions and am very hopeful that we will be able soon to
pass the legislation needed to address the immense problem of terrorism
in this country and around the world.
However, we are moving at an incredible pace on some changes in law
that will potentially effect Americans for a long time to come. Much of
the debate really centers around lowering the standard for electronic
eavesdropping by the government without abridging Americans' Fourth
Amendment protection against unreasonable search and seizure.
I am particularly concerned about how we may expand wiretap
authority under Foreign Intelligence Surveillance Act--make no mistake
about it--if not done right, these changes can affect the ability of
the government to wiretap the lines of American citizens--not just
foreign terrorists.
Further, I hope that we can enact the provisions authorizing law
enforcement to access certain aspects of electronic communications in
the same way they can get telephone numbers. But we must make sure that
the scope of the provision is narrow and does not allow access to the
content of communications without a separate showing to a judge.
I believe that law enforcement does need some new tools to meet the
challenge of fighting terrorism. However it is even more crucial to
promote the sharing and coordination of information among agencies that
have traditionally had separate responsibilities that now intersect in
the effort to fight terrorism. I am determined that the fight against
terrorism requires not just law enforcement tools and wiretaps but
rather requires us to develop the single best most coordinated effort
of sharing and analyzing information to disrupt terrorist planning and
rout out terrorist sympathizers. And a key part of this effort must be
the development of a better system for granting visas such that we know
who is coming in to our country and we are able to stop them at our
borders. Technology now exists that allows agencies to share
information about suspected terrorist affiliates in real time and such
capabilities should be better utilized.
While I am not the first or the last to say it, it remains an
essential truth that if we surrender our unique freedoms and rights,
that the terrorists have inflicted a harm even greater than the
calamitous deaths of thousands of innocent civilians and the
destruction of symbols of American innovation and power. We must not as
citizens or as legislators act out of fear to damage our tradition of
tolerance or curtail our rights and liberties.
Federal Law Enforcement Officers Association
Washington, DC 20044
October 3, 2001
Senator Strom Thurmond
United States Senate
Russell Building, Room 217
Washington, DC 20510
Dear Senator Thurmond:
On behalf of the 20,000 members of the Federal Law Enforcement
Officers Association (FLEOA), I wish to inform you of our strong
support of the Administration's proposed anti-terrorism measures. FLEOA
urges you to support the passage of these measures with all due speed.
The Administration's proposed initiatives focus on giving this
nation's law enforcement officers the needed tools to investigate and
eventually bring to justice the terrorists responsible for the
September 11, 2001, attacks on our Nation. Certain groups and
individuals are opposed to these initiatives due to their concerns
regarding our civil liberties. FLEOA too holds dear our civil
liberties, and legitimate concerns we respect. However, the legislation
currently under consideration will allow Americans to enjoy their civil
liberties and at the same time enable law enforcement to hunt down
terrorists. Certain tools proposed for law enforcement's that raise
concerns come with judicial review before their use can be implemented.
As an organization on the front lines of America's fight against
terrorist, we remind everyone, allowing terrorist's unfettered access
to our shores does not enhance American's civil liberties.
The Administration's measures appropriately address the national
security issues that should be the overriding concerns of all. The
proposals will ensure we can live in this great country and continue to
enjoy our rights and liberties in peace. FLEOA urges the quick passage
of this legislation.
Richard J. Jallo
Fraternal Order of Police
Washington, DC, 20002
September 24, 2001
The Hon. Orrin G. Hatch
Ranking Member,
Committee on the Judiciary
United States Senate,
Washington, DC 20510
Dear Senator Hatch:
I am writing on behalf of the more than 299,000 members of the
Fraternal Order of Police to advise you of our strong support of the
Administration's proposed anti-terrorism measures.
On 11 September, the United States fell victim to an evil and
cowardly attack, perpetrated by individuals with a complete and total
disregard. for human life and the law of nations. The victims of these
attacks and their families demand justice, and the assurances of the
Federal government that everything that can be done to ensure the
future safety and security of our nation will be done. The pleasures
brought forward by President Bush and Attorney General Ashcroft
appropriately address these concerns.
Not only will the Administration's proposed measures provide law
enforcement with the tools they need to quickly hunt down the criminals
responsible for this unprecedented assault on America, but will also
bolster our efforts to protect and defend this great land. These
measures are not new, but they represent what is right and what is
needed at this critical moment in our nation's history,
Some will suggest to you that these proposed measures threaten to
curtail the civil liberties which we all hold dear. As the elected
representative of those who place their lives on the line in defense of
American rights arid liberties, I strongly and respectfully disagree
with that assertion, The proposed legislation will ensure that those of
us who live in the United States can continue to enjoy our rights and
liberties in peace, and without fear of terrorists and the mechanisms
which support them.
On behalf of the membership of the Fraternal Order of Police, I
lend my voice to the millions of citizens asking Congress to enact
these proposed measures with all possible speed, and urge you to work
with President Bush to give us the tools we need to protect all
Americans. Please do not hesitate to contact me, or Executive Director
Jim Pasco, if we may be of any assistance or provide you with
additional information.
Sincerely,
Steve Young
National President
German American Education Fund
Glenview, IL 60025
October 8, 2001
The Hon. Russell D. Feingold,
Chair, Subcommittee on the Constitution,
Federalism and Property Rights
Committee on the Judiciary
United States Senator
Washington, D.C. 20510
Attention: Farhana Khera, Esq. Majority Counsel
Dear Senator Feingold:
Please include the attached letter, dated October 8, 2001, in the
hearing record for the above referenced hearing held on October 3,
2001. It contains pertinent information regarding the US government's
violations of civil liberties pursuant to the Alien Enemies Act and
endured by Germans, Japanese and Italians during WWII. This information
is relevant to Congress's assessment of the antiterrorism package under
consideration. As we were after Pearl Harbor, we are now at a
crossroads. Only this time the terrorism perpetrated on America could
affect the civil liberties of Muslims and Arabs, instead of German,
Japanese and Italians. While we must be very mindful of national
security concerns, we must also be certain not to abridge the
Constitutional rights of Muslims and Arabs in America unnecessarily,
particularly those who call our nation their home.
Thank you for championing our Constitutional freedoms. You are
right. Our Constitution must always guide our actions, and freedom is a
most precious commodity. Thank you for defending it for all of us.
With best regards
Elsbeth M. Seewald,
Chairman, GAFF
German American Education Fund
Glenview, IL 60025
October 8, 2001
Sen. Russell D. Feingold
Chair, Subcommittee on the Constitution,
Federalism and Property Rights
Committee on the Judiciary
United State Senate
Washington, DC 20510
Dear Senator Feingold,
As our government responds to the horrendous September 11 attacks,
we must not the ignore Constitutional freedoms which form the basis of
our democracy. Thank you for holding a hearing on this very important
topic. Adequate protection of our civil liberties and national security
requires careful balancing. In assessing the various alternatives,
history can provide much-needed guidance. At the Subcommittee's hearing
on October 3, the immigrant provisions of the antiterrorism legislation
were discussed at length. Of particular concern was the risk of
violating the civil liberties of aliens who the Department of Justice
deems to be potential security risks. Allowing governmental detention
of aliens on the basis of suspicion requires great scrutiny because it
is such an incursion on one's liberty. Noticeably absent from the
hearing testimony was any meaningful discussion of the government's
WWII alien enemy program and its impact. The WWII alien enemy program
is instructive because many parts resemble the enhanced immigrant
provisions being considered as part of the antiterrorism legislation.
After Pearl Harbor, President Franklin D. Roosevelt issued
proclamations granting Attorney General Francis Biddle plenary
authority almost one million German, Italian and Japanese aliens
pursuant to the Alien Enemies Act. 50 USC 21-24. See also Presidential
Proclamations 2525-2527, dated Dec. 7-8, 1941. Administered by the DOJ,
the alien enemy program affected approximately one million German,
Italian and Japanese aliens, many permanent residents of the US.
Stripped of any Constitutional rights, DOJ afforded these aliens little
due process. All alien enemies were subject to travel and property
ownership restrictions. Those living or working in hastily established
prohibited zones were forced to abandon their homes and places of work.
J. Edgar Hoover's FBI raided thousands of homes seeking evidence
against suspected fifth columnists. The presence of an alien justified
a search. During the war years, thousands were arrested and detained
indefinitely awaiting DOJ's final internment decision.
DOJ established its own standards justifying indefinite internment,
then acted as prosecutor and judge. The U.S. attorney and the FBI
appeared before DOJ-appointed civilian hearing boards to give evidence,
frequently based on tips and innuendo. The accused alien could present
only two character witnesses and had no right to counsel, to contest
the proceedings or to know the reason for detention. Hearing boards
recommended release, parole or internment. In passing final judgment,
DOJ often ignored more lenient recommendations, ordering internment if
it found a suspect ``potentially dangerous to the public peace and
safety of the United States.'' The standards forming the basis for such
decisions were vague and unknown to prospective internees. No right of
administrative appeal or judicial review existed. On rare occasions,
DOJ granted rehearings.
More than 25,000 were interned, including 11,000 Germans, 11,000
Japanese and 3,300 Italians. These internees, including many American-
born children and spouses, languished in Immigration and
Nationalization Serviceadministered camps throughout the United States.
A majority of internees were permanent residents of the United States
and certainly deserved a higher degree of Constitutional protection.
Thousands were exchanged for Americans in Germany and Japan. Families
were torn apart and homes lost. Internment should have ended in 1945,
but President Harry Truman issued an Executive Order requiring hundreds
of ``potential security risks'' to remain interned years after the war,
primarily Germans. They had no means of escape except deportation,
until finally they were released. The last internee was freed in 1948.
Significantly, all persons of Japanese ancestry who were interned,
either due to removal from the West Coast or pursuant to the DOJ alien
internment program, were granted government redress and an apology. As
required by Congress, the DOJ is now assessing the US government's
World War II violations of Italian American civil liberties, including
its own. In August, you, Senators Chuck Grassley and Ted Kennedy
introduced the Wartime Study of European Americans and Refugees Study
Act to establish a commission to study the European American WWII
experience and related civil liberties violations. One overriding
responsibility of that commission would be to make recommendations as
to how best to protect civil liberties during times of national crisis.
We have now learned that such a crisis can arise in a matter of
seconds. If the commission's work was completed, it could provide more
of a framework for the legislative response being considered today. We
hope that your bill will pass promptly through Congress. In the
meantime, however, legislators would do well to analyze the historical
impact of programs it has apologized for in the past, as they decide
how to treat aliens who are suspected security risks today.
Please do not hesitate to contact Karen Ebel or me for further
information.
Best regards,
Elsbeth M. Seewald
Chairman
October 5, 2001
The Hon. Russell D. Feingold
Chairman, Subconmuttee Constitution,
Federalism, and Property Right
Washington, DC 20510-4904
Dear Senator Feingold:
Enclosed you will find my prepared statement for inclusion in the
printed public record of the Subcommittee's hearing on the Anti-
terrorism Act of 2001. I think it is imperative chat a statement of an
eyewitness to the events of arrest, search and seizure, and indefinite
detention and internment in the United States during World War II be
included in the public record.
For the record I am American-born citizen of the United States, I
am an eyewitness to the events of the arrest, internment and
deportation of German Americans during World War II, In 1973 I retired
as a regular officer from the United States Air Force after more than
21 years of service. I hold both a Bachelors of Science and M.D. A.
degrees from Arizona State University, Tempe, Arizona. I am the co-
author of the 1500-page research volume, German-Americans in the World
Wars, The World War Two Experience. The Internment of German-American,
published by K.G. Saur, Munich, Germany, 1995.
I thank you and the members of the committee for providing me with
the opportunity to submit a statement for the public record.
Sincerely,
Statement of Arthur D. Jacobs, Major, USAF Retired
Mr. Chairman and members of the committee, I am an American, an
American of German descent. I was born in Brooklyn, New York. I am also
a retired regular officer of the United States Air Force (USAF). Thank
you for the opportunity to make this statement regarding, ``protecting
Constitutional Freedoms in the Face of Terrorism,'' or the ``Anti-
terrorism Act of 2001.''
Just six years before I enlisted in the USAF I was imprisoned at
the age of twelve with my family at Ellis Island, New York Harbor from
February 27, 1945 to April 25, 1945. At the end of April we were
transported under armed guard to the Immigration and Naturalization
Service camp at Crystal City, Texas. There we were held in captivity
for seven months, from May 1945 through November 1945, after which we
were taken back to Ellis Island where we were held for almost two
months--December 1945 through January 17, 1946. On January 17, 1946 we
were transported to the Troopship Aiken Victory for deportation to a
war-torn, starving Germany.
Upon debarkation on January 26, 1946, from the Aiken Victory at
Bremerhaven, Germany, American soldiers armed with machine guns,
carbines, and pistols met us at the bottom of gangplank. These soldiers
transported us by truck to Bremen, Germany (some 50 miles to the
south]; there they loaded us into boxcars in which they transported us
for same three days and nights during frigid temperatures to
Ludwigsburg, Germany. The interior of the boxcar was pitch black,
freezing, and was tilled with an indescribable stench. Our latrine
facility was a foul-smelling open bucket. After we arrived in
Ludwigsburg, we \1\ were transported to a prison called Hohenasperg [a
15th century citadel, also known as Camp 76, U.S. Seventh
Army Internment Camp].\2\
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\1\ My father, my brother and I. My mother was taken to another
internment camp
\2\ The rest of my story can be read in my Book, The Prison Called
Hohenasperg: An American boy betrayed by his Government during World
War II, May 1999, Publish, FL, ISBN:1-5811-832-0.
---------------------------------------------------------------------------
We committed no crimes, no espionage, no sabotage, and no acts of
terrorism, yet we went through the ordeal I just described. And if
anyone was terrorized it was my father. The events I have depicted
destroyed my family. It was a traumatic experience that my invalid
mother never overcame.
Even though the events I have explained took place almost 57 years
ago, Congress has yet to act to examine and/or correct the injustices
that befell my family and thousands of other German Americans. During
the past 15 years I have written hundreds of letters on this matter to
members of Congress on both sides of the aisle. It. took 15 years to
have the internment of German Americans recognized in a congressional
document,\3\ This milestone was reached when Congressman Matt Salmon
wrote on November 19, 1999;
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\3\ This is true cxcept for my statement in Appendix II (page 133)
of S. Hrg. 102-468, July 25, 1991. Americans was also noted in regard
to violations of civil liberties. Several German Americans internees
were not freed until August 1948, more than three years after war in
Europe had coded.
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``As we reach the end of the century, I urge my colleagues to purse
a full historical accounting of the experiences of all Americans who
suffered discrimination during the Second World War as expeditiously as
possible.'' \4\ Twenty months later Senator Feingold introduced S.
1356, Wartime Treatment of European Americans and Refugees Study Act
(Introduced in the Senate August 3, 2001).\5\ This was the second major
milestone reached in my pursuit of justice.
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\4\ Proclamation No. 2526--Hon. Matt Salmon, Congressional Record,
Extension of Remarks, November 19, 1999, pp. E2525-E2526.
\5\ Senators Kennedy and Grassley are cosponsors of this bill.
---------------------------------------------------------------------------
Before S. 1356 was introduced, two laws related to the internment
program of the United States during World War 11 were enacted, they
are: P.L. 100-383 [8/10/1988], The Civil Liberties Act of 1988 and P.L.
106-451 [11/17/2000], Wartime Violation of Italian American Civil
Liberties Act, to address injustices [civil liberties violations]
suffered by Japanese Americans and Italian Americans respectively. Both
of these laws seemingly skirted or set aside the civil liberties
violations of German Americans; justice would have required that P.L.
100-383, The Civil Liberties Act of 1988, include all Americans who
suffered discrimination, i.e., arrest, internment, and/or deportation,
during the Second World War.
Since the terrorist attack of September 11, 2001 much has been
stated and debated throughout this country in regard to protecting the
civil liberties of Arab Americans and American Muslims. During the
debates on the matter of indefinite detention and curtailing civil
liberties, the case of the internment of Japanese Americans during
World War II is often intenwined.\6\ However, the civil liberties
violations of German Americans during this same time period are not
mentioned. To my knowledge Senator Feingold, you are the only member of
Congress who has, during this crisis, made note of the injustices
suffered by the German Americans and Italian Americans in the United
States during World War II, This is an important statement because it
informs the public that during war, civil liberties tend to take a back
seat to public security. Your statement is also significant in that it
reveals the context of interruiient, it is neither race nor ethnicity
that causes us to curtail the civil liberties of Americans--citizetts
and permanent resident aliens--but ii tells us that.such actions are
based upon whether one's race and/or nationality is that of the enemy.
---------------------------------------------------------------------------
\6\ Senator Leahy and two members, Messrs. Cole and McGinnis, of
your witness panel in their written statements made note of Japanese
Americans, without mentioning German Americans. In an evening broadcast
on the day [1013/20/11] or this hearing, during CNN's Crosstalk the
internment of Japanese Americans was also noted in regard to violations
of civil lobdrtics.
---------------------------------------------------------------------------
I was disappointed that the subcommittee's panel of witnesses for
this hearing did not include eyewitness testimony in regard to the
blatant disregard of the civil liberties of German Americans prior to,
during, and after World War II, For example, eyewitnesses of the period
could have provided the members of the committee with a sense of what
it was like to have been arrested by a blanket arrest warrant, to have
their home ransacked and searched, their personal property confiscated,
and to have been indefinitely detained.\7\
---------------------------------------------------------------------------
\7\ Several German Americans internees were not freed until August
1948, more than three years after war in Europe had ended.
---------------------------------------------------------------------------
Furthermore, eyewitnesses could have also told the committee that
while their civil liberties were being violated, no one bothered to
tell them the nature and cause of the accusation and why they were
chosen to sit out the war behind barbed wire. Eyewitnesses could have
told you that they were neither confronted with witnesses nor were they
afforded counsel for their defense. Eyewitness could have also
described the ineffectiveness of judicial review during war for those
whose ethnicity was that of the enemy, finally, eyewitnesses could have
informed the subcommittee how they were unfairly targeted.
During times of war all Americans--citizens and permanent resident
aliens--must pay a price. Inductees in the U.S. Armed Forces gave up
many freedoms. Many pay the ultimate price--their life. Others pay a
much smaller price such as unlawful search and seizure, arrest,
internment and deportation and other such inconveniences. Senator
Feingold and members of the committee sometimes a nation must do what
it must, to protect the peace and public safety.
During World War II, the warrant for my father's arrest, dated
February 23, 1944, was a ``fill in the blank warrant'' which reads in
part, ``whom I (Attorney General] deem dangerous to the public peace
and safety of the United States. The said alien [Lambert D. Jacobs] is
to be detained and confined until further order.'' Even through my
father committed no crimes, was not a spy, saboteur, or terrorist, he
was apprehended with a blanket arrest order that had the original date
of December 8, 1941, Even though my father committed no crimes, was not
a spy, saboteur, or terrorist, he was apprehended with a blanket arrest
order that had the original date of December 8, 1941, stricken and
replaced with February 23, 1944. Ultimately, my father was interned
with his family for the duration of the war and longer.
During World War 11 injustice did not distinguish between race and
ethnicity. All permanent resident aliens of enemy nationality and some
American citizens of the race and/or nationality of the enemy were
subject to injustices. Injustice is no respecter of persons, race, or
ethnicity during times of war and terrorism when the peace and public
safety are at risk.
Arthur D Jacobs
Major, USAF Retired
Statement of Hon. Jon Kyl, a U.S. Senator from the State of Arizona
Introduction
Sadly, the events of September 11 demonstrated, as no other recent
occurrence has been able to do, that we must put aside the typical,
painfully-slow process that often seems to rule here in times of peace.
We cannot continue to yield the advantage of time to those who will
continue to murder Americans and our allies until we stop them. We are
in a race to ensure the safety and security of our citizens, and there
is literally no time to lose.
We are Not Rushing Forward with Ill-Conceived Legislation
Fortunately, we are not rushing forward with ill-conceived
legislation. We are finally putting in place important tools that will
enable our nation's law-enforcement personnel to more effectively
investigate and prevent further attacks on the people of the United
States. Since September of 1998, the Senate Judiciary Committee or its
Subcommittee on Technology, Terrorism and Government Information has
held thirteen hearings on terrorism. The witnesses who appeared before
the Committee in those hearings included Louis Freeh, former Director
of the FBI, and representatives of all three of the congressionally
mandated commissions on terrorism that have issued reports over the
last two years.
Most of the provisions contained in the Attorney General's proposed
legislation have already been examined by the committee of
jurisdiction. These provisions mirror the recommendations of one or
more of the major terrorism commissions. In fact, some of these
provisions have already been voted on and passed by the Senate.
The language sent forward by the Attorney General to establish
nationwide trap and trace authority is included in the Hatch-
Feinstein-Kyl Amendment to the recently passed Commerce, Justice, State
Appropriations Bill. Much of the remaining language in that amendment
was included in a bill we passed in the Senate last fall, entitled the
``Counter terrorism Act of 2000.'' We passed that bill, S. 3205, after
significant debate and numerous hearings.
Need Action Now
Nearly a year after we passed it the first time, and three full
weeks after the unspeakable acts of terror that occurred on September
11, we still have members of this body dragging their feet and saying
we are moving too quickly to pass counter-terrorism legislation. A
recent New York Times article quoted one of my colleagues saying he,
``would not be rushed, noting that Congress took almost two months to
pass antiterrorism legislation in response to the Oklahoma City bombing
in 1995.''
I appreciate the fact that some of my colleagues do not like to be
rushed, but we are talking about legislation that has been requested by
both Democratic and Republican administrations since 1995. Some of it,
the Senate has already voted to enact. Taking two months to pass
antiterrorism legislation in response to the Oklahoma City bombing is
not something of which we should be proud. And if we take another two
months to act after an even more heinous act of terrorism, we will be
giving terrorists who are already around the first turn, a full lap
advantage in this race. That is not what the American people are
expecting from their leaders at this time.
Civil Liberties
Let me address briefly the concerns voiced by some of my
colleagues. Namely, that we are in danger of ``trampling civil
liberties'' in our rush to pass counter-terrorism legislation. I
reiterate that we are not rushing. The legislation we have already
passed, and the legislation now offered by the administration, was
under consideration long before the events of September 11. We have
already held hearings on these issues. Most importantly, there is
nothing being requested that broadly impinges on the rights and
liberties of U.S. citizens or raises any constitutional questions.
The bill would give federal agencies fighting terrorism the same
tools we have given those fighting illicit drugs, or even postal fraud.
The tools in the Administration are needed updates to the criminal law
to keep pace with changes in technology. These are changes at the
margins, not fundamental changes in privacy.
While some of these tools are extremely helpful in terrorism
investigations, it makes no sense to refuse to apply these common sense
changes to other crimes in cases like kidnapping, drug dealing, and
child pornography. It is unwise to limit these tools to only terrorism
offenses because often, at the outset of an investigation of a
particular person or crime, you do not know what you are dealing with.
People do not walk around with t-shirts that say ``I am a terrorist.''
A credit card fraud case or a false immigration documents case, may
turn out to connected to funding or facilitating the operations of a
terrorist group. Therefore, we should give law enforcement all of these
tools to have the best chance of discovering and disrupting these
activities.
Conclusion
I support the request of the Attorney General, and I urge my
colleagues to give this body due credit for the work that has already
been done over the last six years, in several committees, to bring
credible counter-terrorism legislation to the floor. We have a
responsibility to the people of this nation to act, and to act with all
prudent haste, to ensure that those who are charged with protecting us
from future terrorist attacks are empowered to do so.
We cannot afford to lose this race against terror, and we cannot
afford to give the enemy in this war a full lap head-start.
Edwin Meese III
Washington, D.C. 20002
October 2, 2001
Senator Patrick Leahy
Chairman
Senator Orrin Hatch
Ranking Member
U.S. Senate Judiciary Committee
Washington, D.C. 20510
Dear Chairman Leaky and Senator Hatch:
In the aftermath of the events of September 11, it is clear that
the United States is extremely vulnerable to terrorism. The Bush
Administration has a great responsibility in bringing those involved to
justice and in helping protect the Nation from further terrorist
attacks.
The Justice Department has drafted a series of measured, reasonable
proposals to assist law enforcement at this critical time. We believe
they deserve timely, favorable consideration in Congress.
The package contains tools that will help authorities more
efficiently and effectively track the communications of terrorists. It
would provide our law enforcement and intelligence communities the
authority they need to better share crucial information in a timely
manner. Also, it would increase criminal penalties against terrorists
and those who harbor them.
Some of the provisions would update our laws to keep pace with
technology, and have been sought in the past to respond to computer
hacking and similar crimes. Others would add terrorism to authority
that law enforcement already uses to fight crimes that lawmakers
decided many years ago must be a national priority, such as illegal
drug use. We believe (hat the proposals are consistent with the
Constitution and would not unduly interfere with the liberties that we
as Americans cherish,
We appreciate your consideration of this important matter.
Sincerely,
Edwin Meese III
National District Attorneys Association
Alexandria, Virginia 22314
October 2, 2001
The Hon. Patrick J. Leahy
Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510-6275
The Hon. Orrin G. Hatch
Committee on the Judiciary
152 Dirksen Senate Office Building
Washington, DC 20510-6275
Dear Chairman Leahy and Senator Hatch:
As the President of the National District Attorneys Association I
want to most strongly urge the Senate to pass those protions of the
``Anti-Terrorism Act of 2001'' that enhance the ability of law
enforcement to conduct electronic surveillance on those who would bring
terror to our shores.
Since at least1992 this Association, through actions of its Board
of Directors, has continually urged that law enforcement be capable,
with proper authority, to safeguard our citizens through the use of
electronic surveillance techniques.
In 1994, the late William O'Malley, the District Attorney of
Plymouth County, Massachusetts, and the President of this Association
testifying before your committee stated that;
``If the law enforcement community does not have the
opportunity to keep pace with advanced telecommunication
technologies then the criminals who do have access to this
technology will impunity.''
Then as recently as last May, the Honorable Joseph I. Cassilly,
State's Attorney for Harford County, Maryland, and Chair of our Cyber
Crime subcommittee, in testifying before the House Judiciary Committee
on cyber crime, said:
``With these problems have come the development of new
investigative challenges, . . . defining jurisdiction of a
crime that spans dozens of states or countries, getting
cooperation from service providers, record storage sites and
investigators in other states or countries, new laws regarding
obtaining evidence or working with laws in foreign
jurisdictions.''
To counter the threat of criminals that communicate on a worldwide
basis in real world time we need at least some semblance of parity.
International terrorists and drug dealers alike have access to the
latest in technology and has recently been proven, are not loathe to
exploit their superiority.
Law enforcement needs multi-jurisdictional warrants; the ability to
freely exchange information between law enforcement organizations and
with intelligence clements; the enhancement of ``trap and trace''
authority; expedited access to information in emergency circumstances
and expanded subpoena authority for communications records to identify
subscribers.
For almost a decade we have been pleading for the tools and the
laws we need to protect the people in our communities. We will never
know if we could have prevented the tragic consequences of September
11th had we had the investigative tools we have been asking
for since 1992. We only know that we will need every advantage to
prevent such a tragedy from every occurring again.
Sincerely,
Kevin P. Meenan
District Attorney, 7th Judicial District, Cassper WY
President, National District Attorneys Association
Statement of Southeastern Legal Foundation, Atlanta, Georgia
The Foundation wholeheartedly supports President Bush's declaration
of war against terrorism, and supports giving law enforcement and
national security officials the tools they need to wage this war.
However, the Foundation, along with many other public interest groups
and legislators on both sides of the aisle, was gravely concerned that
the legislation requested by Attorney General John Ashcroft went too
far in eclipsing vital constitutional protections of law abiding
citizens.
The Southeastern Legal Foundation applauds the work of the House
Judiciary Committee on the ``Patriot Act,'' the package of reforms
requested by the Bush Administration to deal with the terrorist war
against American civilization.
It is important for us to remember that new laws will be worthless
if they are not enforced. We already have laws that should have
prevented these attacks. It is a major scandal that fully 15 of the 19
hijackers were in the U.S. on expired visas. If we had simply enforced
the visas and deported these people as the law already requires then in
all likelihood the attacks would have been thwarted. This would be
preferable to surrendering individual freedoms to the fight against
terrorism.
Foreign nationals here on student visas routinely overstay. Former
Deputy Assistant FBI director for national security Dale Watson
testified before Congress that ``we know for a fact that organizations
funded by a state sponsor of terrorism fund students coming to the
United States . . . and that is part of their intelligence
organization.'' Remember, in this vein, that a terrorist who bombed the
World Trade Center in 1993 entered the U.S. on a student visa. In 1996,
Congress passed a law requiring universities to report the whereabouts
and status of all foreign students in the U.S. to a $40 million
electronic tracking system. The law has even been funded by Congress,
yet the system has never been used. But now there are proposals for
legislation to make educational institutions open their records to
federal law enforcement. This would not be necessary if over the last
five years this tracking system had been implemented.
It is appalling that on April 1,1994, the Clinton administration
ordered the INS to stop conducting routine fingerprint background
checks on aliens receiving visas. In the year prior to this action,
9,500 visa applications were denied as a result of this check. In the
intervening seven years at that rate some 70,000 visas have been
granted to individuals who would have flunked the fingerprint
background check. Is it any wonder that the enemy wandered freely in
our midst?
We do not need to surrender our civil liberties to solve these
problems we need the will to properly enforce our immigration laws. We
can no longer allow immigration policy to serve the interests of those
seeking cheap labor, cheap votes, or a relief valve for discredited
economic policies in other countries. Immigration policy is now an
urgent matter of national security.
The Foundation was likewise concerned that permitting the executive
branch to indefinitely detain aliens without judicial review, and is
relieved that this provision has been removed from both the House and
Senate versions of the bill.
The Foundation supports the Administration's proposal for sharing
grand jury information with national security and intelligence
officials. When terrorist acts are investigated and prosecuted as
crimes, as was the case with the 1993 World Trade Center bombing, and
the Khobar Towers bombing, a great deal of vital information is
gathered by the grand jury which is directly relevant to our national
security. After all, these are not random unconnected criminal acts,
but are instead part of the enemy's integrated war plan against the
United States. It is the very height of folly to deny our intelligence
and national security forces information regarding enemy acts of war
simply because it was a grand jury that uncovered it.
While allowing law enforcement to share information with national
security officials should be allowed, constitutional restraints on law
enforcement use of intelligence information in criminal prosecutions
should be maintained. Thus, evidence illegally obtained by foreign
governments should not be allowed in criminal prosecutions, and the
House and Senate wisely removed these provisions.
The proposals for nationwide warrants and multi-point wiretap
authority should be approved despite the Fourth Amendment risks as long
as there is a sunset provision and the initial issuance is supported by
judicial approval of the warrant. These are necessary and reasonable
adaptations to the ways in which terrorists have taken advantage of
technology and freedom of movement in our country. However, this
legislation should also permit such a warrant to be challenged in any
jurisdiction in which it is served in order to check forum shopping by
the government.
The interception of electronic communications--e-mail and web
surfing should be limited in the same way that PEN register and trap
and trace devices are currently limited--to and from information can be
collected, but not the content of e-mailed communications.
Proposed changes in the definition of what constitutes a
``terrorism offense'' are sufficiently overbroad that they could be
applied to teenagers putting firecrackers into mailboxes. When an act
meets this overbroad definition, then the entire panoply of
surveillance and enforcement powers comes into play. The potential for
abuse by overzealous government officials is extremely high. There is a
difference between the youthful indiscretions of a teenager and a
terrorist act, and the legislation should have the wits to reflect that
by narrowing the definition of a terrorist act. Terrorist intent should
be included in the definition of the offense.
Many years after the enemy first declared it, the U.S. has finally
come to grips with the ugly reality of a new war against a furtive and
ruthless enemy. New measures are clearly required, but we should not go
too far. In properly limiting the dramatic expansion of power sought by
the government, Congress is once again demonstrating the genius of the
separation of powers. The Southeastern Legal Foundation adds its voice
to the many liberal and conservative public interest groups supporting
these limitations.
But these new measures will not alone suffice. The new resolve of
the American people should also be directed to the scandalously lax
enforcement of our immigration law. Our national defense requires it.
Laws in several states and under consideration in others, including
Georgia, permit issuance of drivers licenses to illegal aliens. Several
of the hijackers had obtained drivers licenses from the state of
Virginia, which facilitated their ability to move around the country
and plan and execute their attacks. Even before September 11, 2001, the
Southeastern Legal Foundation argued that issuing drivers licenses to
illegal aliens directly undermines enforcement of immigration laws. In
the current environment the practice also undermines our national
security. Congress should adopt legislation forbidding states from
issuing drivers licenses to illegal aliens.
Respectfully Submitted,
Phil Kent
President
Dick Thornburgh
Washington, DC 20005
October 2, 2001
Hon. Patrick Leahy
Chairman
Hon. Orrin Hatch
Ranking Member
U.S. Senate Judiraary Committee
Washington. D.C. 20510
Dear Chairman Leahy and Senator Hatch:
In the aftermath of the events of September 11, it is clear that
the United States is extremely vulnerable to terrorism. The Bush
Administration has a great responsibility in bringing those involved to
justice and in helping protect the nation from further terrorist
attacks.
The Justice Department has drafted a series of measured, reasonable
proposals to assist law enforcement at this critical time. We believe
they deserve timely, favorable consideration in Congress.
The package contains tools that will help authorities more
efficiently and effectively truck the communications of terrorists. It
would provide our lava enforcement and intelligence communities the
authority they need to better share crucial information in a timely
manner. Also, it would increase criminal penalties against terrorists
and those who harbor theirs.
Some of the provisions would update our laws to keep pace with
technology and have been sought in the past to respond to computer
hacking and similar crimes. Others would add terrorism to authority
that law enforcement already uses to fight crimes chat lawmakers
decided many years ago must be a national priority, such as illegal
drug use. We believe that the proposals arc consistent with the
Constitution anal would not unduly interfere in the liberties we as
Americans cherish.
We appreciate your consideration of this important matter.
Sincerely,
Dick Thornburgh
Statement of Hon. Strom Thurmond, a U.S. Senator from the State of
South Carolina
Mr. Chairman:
I appreciate the concerns that you and others have expressed about
the need to maintain the constitutional freedoms that have made our
country the greatest in the world. Our Constitution and the freedoms it
protects have always been, and must always be, the bedrock of our
Nation.
As I stated at our full Judiciary Committee hearing on terrorism
last week, America is threatened today by an enemy unlike any we have
faced before. Especially since the end of the Cold War, we have felt
secure in knowing that our Armed Forces are the strongest in the world,
and have the power to defeat any enemy who dares to invade American
soil. However, the new enemies that we face know that they cannot
overtake our government by force and rule our country. Instead, through
death and destruction, they seek to intimidate us into submission.
Based on the events of September 11th, they are at war with us, and
we are at war with them. But they are not hampered by the rules of war.
They do not have the courage to attack our military bases. Instead,
they enter our country and take advantage of the freedoms and
conveniences that Americans take for granted, and then use them against
us to kill innocent Americans.
America must do what is necessary to fight our enemies and defeat
them. It is true that, in times of war, the freedoms and civil
liberties that Americans enjoy have been restricted to some degree in
certain circumstances, as discussed in detail in a recent book by Chief
Justice William Rehnquist, All the Laws But One, but the actions of the
government today do not approach these measures.
Contrary to what some suggest, our government is not seeking to
limit our constitutional liberties and freedoms in response to this
crisis. We must keep in mind that some of the groups opposing these
measures believe that law enforcement should not have critical tools it
already has to fight crime today, such as any form of electronic
surveillance.
The Bush Administration has a us to take some reasonable, measured
steps to make terrorism a top priority in our criminal laws and to
update our laws for modern technology. None of these proposals are
unconstitutional, and none of them should cause innocent Americans any
concern.
These proposals respond to the ongoing national security threat
that our country faces today. We must better enable law enforcement to
track the communications of terrorists. Our enemies use sophisticated
technology, such as advanced computers and multiple cellular
telephones, to take advantage of the deficiencies in current law. Under
this bill, these laws would even reflect the reality of the
21st Century.
Some of these provisions have been sought in the past help law
enforcement respond to hacking and other computer crimes. However,
Congress failed to respond to the need. For example, Internet
communications travel through many jurisdictions that have nothing to
do with the place where crimes are being committed, and this proposal
would eliminate such redundant jurisdictional barriers that impede
ongoing, time-sensitive investigations.
A major goal of this package is simply to make our criminal laws
reflect that terrorism is a top priority. They are not designed to give
the government broad, new, untested powers. Instead, they add terrorism
to the authority that law enforcement already uses to fight crimes that
we decided years ago must be a national priority, such as the scourge
of illegal drug abuse.
Administrative subpoena authority for terrorism is a good
illustration. Law enforcement already has administrative subpoena power
for drug offenses, child sexual exploitation, and even health care
fraud, and these powers have been exercised in a reasonable manner.
Last year, the Congress added to this list administrative subpoena
authority to help the Secret Service track those who threatened the
President. Also, based on a bill that I introduced with Senator Biden
in the last Congress, the Senate voted unanimously to expand the
authority further to cover certain dangerous violent fugitives from
justice. While all of these crimes are serious, they are certainly no
more important than the fight against terrorism, and there is no reason
terrorism should not be included in the list.
Acts of terrorism like we endured on September 11th are
both domestic crimes and threats to our national security. We cannot
allow artificial barriers between intelligence and law enforcement to
imperil out ability to fight terrorism on American soil. Law
enforcement and intelligence agencies must be given the ability to
cooperate and share information more closely than they can now, and
this legislation would accomplish that.
Further, we need to amend barriers to prosecution, such as short
statutes of limitations for bringing charges. Also, we need to increase
the penalties against terrorists and those who harbor them.
It is true that some of these provisions are not directly targeted
to help authorities apprehend those involved in the September
11th attacks. However, terrorism takes a great variety of
forms, and some of these proposals are needed to protect our country
from other terrorist attacks that we could face at any moment.
Our country faces new dangers and uncertainties that were hard for
many Americans to envision just a month ago. But as in decades past,
Americans understand the threats we face and are willing to accept
greater inconveniences and restrictions for greater security. As
reflected in a Washington Post poll published on Saturday, the American
people support giving law enforcement these critical tools.
A few weeks ago, the Senate passed some of the important and more
controversial provisions in this package as an amendment to the
Commerce-Justice-State Appropriations bill. I cosponsored this
important measure. Similarly, the full Senate deserves the opportunity
to consider the entire Justice Department proposal in the very near
future. If it does, I believe the entire proposal will receive a level
of strong support similar to the terrorism appropriations amendment.
As Attorney General Ashcroft has repeatedly said, we face a clear
and present danger from future terrorist attacks. Law enforcement faces
a tough challenge in responding to this sad new reality. These
proposals will eliminate existing barriers to their ability to defend
and protect us. They should be enacted into law.
Our constitutional freedoms are not in danger by the Attorney
General's proposals. However, because of terrorism, what is in danger
today is our national security. The legislation we are considering will
help make America safer and more secure.
These reforms are long overdue. American lives are still risk. We
cannot afford to endlessly deliberate and delay. We must take action
now.
U.S. Department of Justice
Office of Legislative Affairs
Washington, D.C. 20530
The Honorable Bob Graham
Chairman
Select Committee on Intelligence
United States Senate
Washington, D.C. 20510
Dear Senator Graham:
I am writing to relay to you the views of the Department of Justice
on the constitutionality of amending the Foreign Intelligence
Surveillance Act, 50 U.S.C. Sec. Sec. 1800-1863 (``FISA''), so that a
search may be approved when the collection of foreign intelligence is
``a significant purpose'' of the search. In its current form, FISA
requires that ``the purpose'' of the search be for the collection of
foreign intelligence. 50 U.S.C. Sec. 1804(a)(7)(B) and 50 U.S.C.
Sec. 1823(a)(7)(B). We believe that this amendment would not violate
the Fourth Amendment. Amending FISA merely gives the Department the
flexibility to conduct foreign intelligence surveillance that is
permitted by the Constitution itself.
The Fourth Amendment declares that, ``the right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated.'' U.S.
Const. Amend. IV (emphasis added). The Amendment also declares that
``no Warrants shall issue, but upon probable cause, supported by Oath
or affirmation, and particularly describing the place to be searched
and the persons or things to be seized.'' Id.
Thus, the touchstone for review is whether a search is
``reasonable.'' See, e.g., Veronia School Dist. 47J v. Acton, 515 U.S.
646, 652 (1995) (``[a]s the text of the Fourth Amendment indicates, the
ultimate measure of the constitutionality of a government search is
`reasonableness.' ''). When law enforcement undertakes a search to
discover evidence of criminal wrongdoing, the Supreme Court has said
that reasonableness generally requires a judicial warrant. See id. at
653. But the Court has made clear that a warrant is not required for
all government searches. A warrantless search can be constitutional
``when special needs, beyond the normal need for law enforcement, make
the warrant and probable-cause requirement impracticable.'' Id.
As a result, the Court properly has found a variety of warrantless
government searches to be consistent with the Fourth Amendment. See
e.g., Pennsylvania v. Labron, 518 U.S. 938 (1996) (per curiam) (certain
automobile searches); Acton, supra (drug testing of high school
athletes); Michigan v. Dept. of State Police v. Sitz, 496 U.S. 449
(1990) (drunk driver checkpoints); Skinner v. Railway Labor Executives'
Assn., 489 U.S. 602 (1989) (drug testing of railroad personnel);
Treasury Employees v. Von Raab, 489 U.S. 656 (1989) (random drug
testing of federal customs officers); United States v. Place, 462 U.S.
696 (1983) (temporary seizure of baggage); Michigan v. Summers, 452
U.S. 692 (1981) (detention to prevent flight and to protect law
enforcement officers); Terry v. Ohio, 392 U.S. 1 (1968) (temporary stop
and limited search for weapons).
In these circumstances, the Court has examined several factors to
determine whether a warrantless search is reasonable. As the Court
stated just last Term: ``When faced with special law enforcement needs,
diminished expectations of privacy, minimal intrusions, or the like,
the Court has found that certain general, or individual, circumstances
may render a warrantless search or seizure reasonable.'' Illinois v.
McArthur, 121 S. Ct. 946, 949 (2001). In creating these exceptions to
its warrant requirement, the Court has found that, under the totality
of the circumstances, the ``importance of the government's interests''
has outweighed the ``nature and the quality of the intrusion on the
individual's Fourth Amendment interests.'' See Tennessee v. Garner, 471
U.S. 1, 8 (1985).
Of particular relevance here, the Court has found warrantless
searches reasonable when there are ``exigent circumstances,'' such as a
potential threat to the safety of law enforcement officers or third
parties. The Court has also recognized that a government official may
not need to show the same kind of proof to a magistrate to obtain a
warrant for a search unrelated to the investigation of a crime ``as one
must who would search for the fruits or instrumentalities of crime.''
Camara v. Municipal Court of San Francisco, 387 U.S. 523, 538 (1967).
For example, ``[w]here considerations of health and safety are
involved, the facts that would justify an inference of `probable cause'
to make an inspection are clearly different from those that would
justify such an inference where a criminal investigation has been
undertaken.'' Id. See also Indianapolis v. Edmond, 531 U.S. 32, 44
(2000) (in context of seizure and exigent circumstances, Fourth
Amendment would permit appropriately tailored roadblock to thwart an
imminent terrorist attack or catch a dangerous criminal who is likely
to flee).
II
This analysis of Fourth Amendment doctrine demonstrates that the
government may conduct searches to obtain foreign intelligence that do
not meet the same standards that apply in the normal law enforcement
context. It is important to understand the current shape of Fourth
Amendment law, and how it would apply to the circumstances at hand, in
order to evaluate the constitutionality of the proposed amendment to
FISA.
As we have noted earlier, the Fourth Amendment's reasonableness
test for searches generally calls fox a balancing of the government's
interest against the individual's Fourth Amendment interests. Here, the
nature of the government interest is great. In the counterintelligence
field, the government is engaging in electronic surveillance in order
to prevent foreign powers or their agents from obtaining information or
conducting operations that would directly harm the security of the
United States.
To be sure, the Supreme Court has subjected counterintelligence
searches of purely domestic terrorist groups to a warrant requirement.
When it first applied the Fourth Amendment to electronic surveillance,
the Supreme Court specifically refused to extend its analysis to
include domestic searches that were conducted for national security
purposes. Katz v. United States, 389 U.S. 347, 358 n. 23 (1967); see
also Mitchell v. Forsyth, 472 U.S. 511, 531 (1985). Later, however, in
United States v. United States District Court, for the Eastern District
of Michigan, 407 U.S. 297, 299 (1972) (``Keith''), the Court held that
the warrant requirement should apply to cases of terrorism by purely
domestic groups. In doing so, the Justices framed the question by
explaining that, ``[i]ts resolution is a matter of national concern,
requiring sensitivity both to the Government's right to protect itself
from unlawful subversion and attack and to the citizen's right to be
secure in his privacy against unreasonable Government intrusion.'' Id.
While acknowledging that ``unless Government safeguards its own
capacity to function and to preserve the security of its people,
society itself could become so disordered that all rights and liberties
would be endangered,'' id. at 312, the Court cautioned that ``[t)he
danger to political dissent is acute where the Government attempts to
act under so vague a concept as the power to protect `domestic
security.' Given the difficulty of defining the domestic security
interest, the danger of abuse in acting to protect that interest
becomes apparent.'' Id. at 314. As a result, the Court held that the
absence of neutral and disinterested magistrates governing the
reasonableness of the search impermissibly left ``those charged with
[the] investigation and prosecutorial duty [as] the sole judges of when
to utilize constitutionally sensitive means in pursuing their tasks.''
Id. at 317.
The Court explicitly noted, however, that it was not considering
the scope of the President's surveillance power with respect to the
activities of foreign powers within or without the country. Id. at 308.
After Keith, lower courts have recognized that when the government
conducts a search for national security reasons of a foreign power or
its agents, it need not meet the same requirements that would normally
apply in the context of a search of United States citizens who are not
foreign agents or for criminal law enforcement purposes. In United
States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980),
for example, the Fourth Circuit observed that ``the needs of the
executive are so compelling in the area of foreign intelligence, unlike
the area of domestic security, that a uniform warrant requirement
would, following Keith, `unduly frustrate,' the President in carrying
out his foreign affairs responsibilities.'' Id. at 913. The Court based
this determination on a number of factors, including:
(1) ``[a] warrant requirement would reduce the flexibility of
executive foreign intelligence initiatives, in some cases delay
executive response to foreign intelligence threats, and
increase the chance of leaks regarding sensitive executive
operations,'' id.;
(2) ``the executive possesses unparalleled expertise to make
the decision whether to conduct foreign intelligence
surveillance, whereas the judiciary is largely inexperienced in
making the delicate and complex decisions that lie behind
foreign intelligence surveillance . . . . Few, if any, district
courts would be truly competent to judge the importance of
particular information to the security of the United States or
the `probable cause' to demonstrate that the government in fact
needs to recover that information from one particular source,''
id. at 91314: and
(3) the executive branch ``is also constitutionally designated
as the pre-eminent authority in foreign affairs.'' Id. at 914.
The Court also recognized, however, that ``because individual
privacy interests are severely compromised any time the government
conducts surveillance without prior judicial approval, this foreign
intelligence exception to the Fourth Amendment warrant requirement must
be carefully limited to those situations in which the interests of the
executive are paramount.'' Id. at 915. See also United States v. Frown,
484 F.2d 418 (5th Cir. 1973) , cert. denied, 915 U. S. 960
(1974): United States v. Buck, 548 F. 2d 871 (9th Cir. ),
cert. denied, 434 U.S. 890 (1977); United States v. Clay, 430 F.2d 165
(5t'' Cir. 1970), rev'd on other grounds, 403 U.S. 698 (1971).
Therefore, the Fourth Circuit held that the government was relieved
of the warrant requirement when (1) the object of the search or
surveillance is a foreign power, its agent or collaborators since such
cases are ``most likely to call into play difficult and subtle
judgments about foreign and military affairs,'' 629 F.Zd at 915 and (2)
``when the surveillance is conducted `primarily' for foreign
intelligence reasons . . . . because once surveillance becomes
primarily a criminal investigation, the courts are entirely competent
to make the usual probable cause determination, and because,
importantly, individual privacy interests come to the fore and
government foreign policy concerns recede when the government is
primarily attempting to form the basis for a criminal prosecution.''.
Id.
As the attacks on September 11, 2001 revealed, the government
interest in conducting searches related to fighting terrorism is
perhaps of the highest order--the need to defend the nation from direct
attack. As the Supreme Court has said, ` ``It is ``obvious and
unarguable' that no governmental interest is more compelling than the
security of the nation.'' Haig v. Agee, 453 U.S. 280, 307 (1981) . The
compelling nature of the government's interest here may be understood
in light of the Founders' express intention to create a federal
government ``cloathed with all the powers requisite to the complete
execution of its trust.'' the Federalist No. 23, at 147 (Alexander
Hamilton) (Jacob E. Cooke ed. 1961). Foremost among the objectives
committed to that trust by the Constitution is the security of the
nation. As Hamilton explained in arguing for the Constitution's
adoption, because ``the circumstances which may affect the public
safety'' are not ``reducible within certain determinate limits,''
it must be admitted, as a necessary consequence, that there can
be no limitation of that authority, which is to provide for the
defence and protection of the community, in any matter
essential to its efficacy.
Id. at 147-48.\1\ Within the limits that the Constitution itself
imposes, the scope and distribution of the powers to protect national
security must be construed to authorize the most efficacious defense of
the nation and its interests in accordance ``with the realistic
purposes of the entire instrument.'' Lichter v. United States, 334 U.S.
742, 782 (1948). Nor is the authority to protect national security
limited to that necessary ``to victories in the field.'' Application of
Yamashita, 327 U.S. 1, 12 (1946). The authority over national security
``carries with it the inherent power to guard against the immediate
renewal of the conflict.'' Id.
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\1\ See also The Federalist No. 34, at 211 (Alexander Hamilton)
(Jacob E. Cooke ed., 1961) (Federal government is to possess ``an
indefinite power of providing for emergencies as they might arise'');
The Federalist No. 41, at 269 (James Madison) (``Security against
foreign danger is one of the primitive objects of civil society. . .The
powers requisite for attaining it, must be effectually confided to the
federal councils.'') Many Supreme Court opinions echo Hamilton's
argument that the Constitution presupposes the indefinite and
unpredictable nature of ``the circumstances which may affect the public
safety,'' and that the federal government's powers are correspondingly
broad. See, e. g., Dames & Moore v. Regan, 453 U.S. 654, 662 (1981)
(noting that the President ``exercis[es] the executive authority in a
world that presents each day some new challenge with which he must
deal''); Hamilton v. Regents, 293 U.S. 245, 264 (1934) (Federal
government's war powers are ``well-nigh limitless'' in extent); Stewart
v. Kahn, 78 U.S. (11Wa11.) 493, 506 (1870) (``The measures to be taken
in carrying on war . . . are not defined [in the Constitution]. The
decision of all such questions rests wholly in the discretion of those
to whom the substantial powers involved are confided by the
Constitution.''); Miller v. United States, 78 U.S. (11 Wall.) 268, 305
(1870) (``The Constitution confers upon Congress expressly power to
declare war, grant letters of marque and reprisal, and make rules
respecting captures on land and water. Upon the exercise of these
powers no restrictions are imposed. Of course the power to declare war
involves the power to prosecute it by all means and in any manner in
which war may be legitimately prosecuted.'').
---------------------------------------------------------------------------
The text, structure and history of the Constitution establish that
the Founders entrusted the President with the primary responsibility,
and therefore the power, to ensure the security of the United States in
situations of grave and unforeseen emergencies. Intelligence gathering
is a necessary function that enables the President to carry out that
authority. The Constitution, for example, vests in the President the
power to deploy military force in the defense of United States by the
Vesting Clause, U.S. Const. Art. II, Sec. 1, cl. 1, and by the
Commander in Chief Clause, id., Sec. 2, cl. 1.\2\ Intelligence
operations, such as electronic surveillance, often are necessary and
proper for the effective deployment and execution of military force
against terrorists. Further, the Constitution makes explicit the
President's obligation to safeguard the nation's security by whatever
lawful means are available by imposing on him the duty to ``take Care
that the Laws be faithfully executed.'' Id., Sec. 3. The implications
of constitutional text and structure are confirmed by the practical
consideration that national security decisions often require the unity
in purpose and energy in action that characterize the Presidency rather
than Congress.\3\
---------------------------------------------------------------------------
\2\ See Johnson v. Eisentrager, 339 U.S. 763, 789 (1950) (President
has authority to deploy United States armed forces ``abroad or to any
particular region''); Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850)
(``As commander-in-chief, [the President] is authorized to direct the
movements of the naval and military forces placed by law at his
command, and to employ them in the manner he may deem most
effectual''); Loving v. United States, 517 U.S. 748, 776 (1996)
(Scalia, J., concurring in part and concurring in judgment) (The
``inherent power'' of the Commander in Chief ``are clearly
extensive.''); Maul v. United States, 274 U.S. 501, 515-16 (1927)
(Brandeis Holmes, JJ., concurring) (President ``may direct any revenue
cutter to cruise in any waters in order to perform any duty of the
service''); Commonwealth of Massachusetts v. Laird, 451 F.2d 26, 32
(1st Cir. 1971) (the President has ``power as Commander-in-Chief to
station forces abroad''); Ex parte Vallandigham, 28 F.Cas. 874, 922
(C.C.S.D. Ohio 1863) (No. 16,816) (in acting ``under this power where
there is no express legislative declaration, the president is guided
solely by his own judgment and discretion''); Authority to Use United
States Military Forces in Somalia, 16 Op. O.Z.C. 6, 6 (1992) (Barr,
A.G.).
\3\ As Alexander Hamilton explained in The Federalist No. 74,
``[o]f all the cares or concerns of government, the direction of war
most peculiarly demands those qualities which distinguish the exercise
of power by a single hand.'' The Federalist No. 74, at 500 (Alexander
Hamilton) (Jacob E. Cooke ed., 1961). And James Iredell (later an
Associate Justice of the Supreme Court) argued in the North Carolina
Ratifying Convention that ``[f]rom the nature of the thing, the command
of armies ought to be delegated to one person only. The secrecy,
despatch, and decision, which are necessary in military operations, can
only be expected from one person.'' Debate in the North Carolina
Ratifying Convention, in Jonathan Elliott, The Debates in the Several
State Conventions on the Adoption of the Federal Constitution 107 (2d
ed. Ayer Company, Publishers, Inc. 1987) (1888). See also 3 Joseph
Story, Commentaries on the Constitution 1485, at 341 (1833) (in
military matters, ``[u]nity of plan, promptitude, activity, and
decision, are indispensable to success: and these can scarcely exist,
except when single magistrate is entrusted exclusively with the
power'').
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Judicial decisions since the beginning of the Republic confirm the
President's constitutional power and duty to repel military action
against the United States and to take measures to prevent the
recurrence of an attack. As Justice Joseph Story said long ago, ``[i]t
may be fit and proper for the government, in the exercise of the high
discretion confided to the executive, for great public purposes, to act
on a sudden emergency, or to prevent an irreparable mischief, by
summary measures, which are now found in the text of the laws.'' The
Apollon, 22 U.S. (9 Wheat.) 362, 366-67 (1824). The Constitution
entrusts the ``power [to) the executive branch of the Government to
preserve order and insure the public safety in times of emergency, when
other branches of the Government are unable to function, or their
functioning would itself threaten the public safety.'' Duncan v.
Kahanamoku, 327 U.S. 304, 335 (1946) (Stone, C. J., concurring). If the
President is confronted with an unforeseen attack on the territory and
people of the United States, or other immediate, dangerous threat to
American interests and security, it is his constitutional
responsibility to respond to that threat. See, e.g., The Prize Cases,
67 U.S. (2 Black) 635, 668 (1862) (``If a war be made by invasion of a
foreign nation, the President is not only authorized but bound to
resist force by force . . . without waiting for any special legislative
authority.''); Kahanamoku, 327 U.S. at 336 (Stone, C.J., concurring)
(``Executive has broad discretion in determining when the public
emergency is such as to give rise to the necessity'' for emergency
measures); United States v. Smith, 27 F. Cas. 1192, 1230 (C.C.D.N.Y.
1806) (No. 16,342) (Paterson, Circuit Justice) (regardless of statutory
authorization, it is ``the duty . . . of the executive magistrate . . .
to repel an invading foe''); see also 3 Story, Commentaries Sec. 1485
(``[t]he command and application of the public force . . . to maintain
peace, and to resist foreign invasion'' are executive powers).
The Department believes that the President's constitutional
responsibility to defend the Nation may justify reasonable, but
warrantless, counter-intelligence searches. As the Commander-in-Chief,
the President must be able to use whatever means necessary to prevent
attacks upon the United States; this power, by implication, includes
the authority to collect information necessary for its effective
exercise.
This examination demonstrates that the current situation, in which
Congress has recognized the President's authority to use force in
response to a direct attack on the American homeland, has demonstrated
the government's increased interest. The government's interest has
changed from merely conducting foreign intelligence surveillance to
counter intelligence operations by other nations, to one of preventing
terrorist attacks against American citizens and property within the
continental United States itself. The courts have observed that even
the use of deadly force is reasonable under the Fourth Amendment if
used in self-defense or to protect others. See, e. g., Romero v. Board
of County Commissioners, 60 F.3d 702 (10th Cir. 1995), cert. denied 516
U.S. 1073 (1996); O'Neal v. DeKalb County, 850 F.2d 653
(11th Cir. 1988). Here, for Fourth Amendment purposes, the
right to self-defense is not that of an individual, but that of the
nation and of its citizens. Cf. In re Neagle, 135 U.S. 1 (1890) ; The
Prize Cases, 67 U.S. (2 Black) 635 (1862). If the government's
heightened interest in self-defense justifies the use of deadly force,
then it certainly would also justify warrantless searches.
III
It is against this background that the change to FISA should be
understood. Both the executive branch and the courts have recognized
that national security searches against foreign powers and their agents
need not comport with the same Fourth Amendment requirements that apply
to domestic criminal investigations. FISA embodies the idea that, in
this context, the Fourth Amendment applies differently than in the
criminal context. Nonetheless, FISA itself is not required by the
Constitution, nor is it necessarily the case that its current standards
match exactly to Fourth Amendment standards. Rather, like the warrant
process in the normal criminal context, FISA represents a statutory
procedure that, if used, will create a presumption that the
surveillance is reasonable under the Fourth Amendment. Thus, it is
wholly appropriate to amend FISA to ensure that its provisions parallel
the bounds of the Fourth Amendment's reasonableness test.
The national security and foreign intelligence elements of the
search justify its exemption from the standard law enforcement warrant
process. After the enactment of FISA, for example, courts have
emphasized the distinction between searches conducted to collect
foreign intelligence and those undertaken for pursuing criminal
prosecutions. Although this may be due, in part, to a statutory
construction of the FISA provisions, these courts' language may be seen
as having broader application. As the Second Circuit has emphasized,
although courts, even prior to the enactment of FISA, concluded that
the collection of foreign intelligence information constituted an
exception to the warrant requirement, ``the governmental interests
presented in national security investigations differ substantially from
those presented in traditional criminal prosecutions.'' United States
v. Duggan, 743 F.2d 59, 72 (2d Cir. 1984). The Duggan Court held that
FISA did not violate the Fourth Amendment because the requirements of
FISA ``provide an appropriate balance between the individual's interest
in privacy and the government's need to obtain foreign intelligence
information.'' Id. at 74. The Court's holding was made in the context
of acknowledging the reasonableness of ``the adoption of prerequisites
to surveillance that are less stringent than those precedent to the
issuance of a warrant for a criminal investigation.'' Id. at 73.
Similarly, the Ninth Circuit found that the lowered probable cause
showing required by FISA is reasonable because, although the
application need not state that the surveillance is likely to uncover
evidence of a crime, ``the purpose of their surveillance is not to
ferret out criminal activity but rather gather intelligence, [and
therefore] such a requirement would be illogical.'' United States v.
Cavanagh, 807 F.2d 787, 790-91 (9th Cir. 1987) (Kennedy,
J.).\4\ And consistent with both the language of the second and Ninth
Circuits, the First Circuit, in upholding the constitutionality of
FISA, explained that ``[a]lthough evidence obtained under FISA
subsequently may be used in criminal prosecutions, the investigation of
criminal activity cannot be the primary purpose of the surveillance
[and therefore] [t]he act is not to be used as an end-run around the
Fourth Amendment's prohibition of warrantless searches.'' United States
v. Johnson, 952 F.2d 656, 5%72 (1tht Cir. 1992) (citations omitted),
cert. denied, 506 U.S. 816 (1992).
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\4\ The Ninth Circuit has reserved the question of whether the
``primary purpose'' test is too strict. United States v. Sarkissian,
841 F.2d 959, 964 (9th Cir. 1988)
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On the other hand, it is also clear that while FISA states that
``the'' purpose of a search is for foreign surveillance, that need not
be the only purpose. Rather, law enforcement considerations can be
taken into account, so long as the: surveillance also has a legitimate
foreign intelligence purpose. FISA itself makes provision for the use
in criminal trials of evidence obtained as a result of FISA searches,
such as rules for the handling of evidence obtained through FISA
searches, 50 U.S.C. Sec. 1801(h) & 1806, and procedures for deciding
suppression motions, id.Sec. 1806(e). In approving FISA, the Senate
Select Committee on Intelligence observed: ``U.S. persons may be
authorized targets, and the surveillance is part of an investigative
process often designed to protect against the commission of serious
crimes such as espionage, sabotage, assassinations, kidnapping, and
terrorist; acts committed by or on behalf of foreign powers.
Intelligence and criminal law enforcement tend to merge in this area.''
S. Rep. No. 95-701, at 10-11 (1978). The Committee also recognized that
``foreign counterintelligence surveillance frequently seeks information
in needed to detect or anticipate the commission of crime's,'' and that
``surveillance conducting under [FISA] need not stop once conclusive
evidence of a crime is obtained, but instead may be extended longer
where protective measures other than arrest and prosecution are more
appropriate.'' Id. at 11.
The courts agree that the gathering of counter-intelligence need
not be the only purpose of a constitutional FISA search. An ``otherwise
valid FISA surveillance, is not tainted simply because the government
can anticipate that the fruits of such surveillance may later be used,
as allowed by Sec. 1866(bj, as evidence in a criminal trial.'' Duggan,
743 F.2d at 78. This is due to the recognition that ``in many cases the
concerns of the government with respect to foreign intelligence will
overlap those with respect to law enforcement.'' Id. In order to police
the line between legitimate foreign intelligence searches and pure
domestic law enforcement operations, most courts have adopted the test
that the ``primary purpose'' of a FISA search is to gather foreign
intelligence. See id. United States v. Johnson, 952 F.2d 565, 572 (18th
Cir. 1991); United States v. Pelton, 835 F.2d 1067 (4th Cir. 1987),
cert. denied, 486 U.S. 1010 (1988); United States v. Badia, 827 F2d
1458, 1464 (11th Cir. 1987), cert. denied, 485 U.S. 937 (1988).: Not
All courts, however, have felt compelled to adopt the primary purpose
test. The Ninth Circuit has explicitly reserved the question whether
the ``primary purpose'' is too strict and the appropriate test is
simply whether there was a legitimate foreign intelligence purpose.
United States v. Sarkissian, 841 F.2d 959, 964 (9th Cir. 1988). No
other Circuit has held that such a formulation would be
unconstitutional.
In light of this case law and FISA's statutory structure, we do not
believe that an amendment of F18A from ``the'' purpose to ``a
singificant'' purpose would be unconstitutional. So long as the
government has a legitimate objective in obtaining foreign intelligence
information, it should not matter whether it also has a collateral
interest in obtaining information for a criminal prosecution. As courts
have observed, the criminal law interests of the government do not
taint a FISA search when its foreign intelligence objective is primary.
This implies that a FISA search should not be invalid when the interest
in criminal prosecution is significant, but there is still a legitimate
foreign intelligence purpose for the search. This concept flows from
the courts' recognition that the concerns of government with respect to
foreign policy will often overlap with those of law enforcement.
Further, there are other reasons that justify the constitutionality
of the proposed change to FISA. First, as an initial matter, the
alteration in the statute could not be facially unconstitutional. As
the Court has held, in order to succeed a facial challenge to a statute
must show that the law is invalid ``in every circumstance.'' Babbitt v.
Sweet Home Chapter, 515 U.S. 687, 699 (1995). As the Court made clear
in United States v. Salerno, 481 U.S. 739 (1987), ``[a] facial
challenge to a legislative Act is, of course, the most difficult
challenge to mount successfully, since the challenger must establish
that no set of circumstances exists under which the Act would be
valid.'' Id. at 745. Such a challenge would fail here. Even if FISA
were amended to require that ``a'' purpose for the search be the
collection of foreign intelligence, that class of searches would
continue to include both searches in which foreign intelligence is the
only purpose and searches in which it is the primary purpose--both
permissible under current case law. A fortiori, if amending FISA to
``a'' purpose would be constitutional, then changing the language to
``a significant'' purpose--a somewhat higher standard--would meet
Fourth Amendment requirements as well.
Second, amending FISA would merely have the effect of changing the
statute to more closely track the Constitution. Courts have recognized
that the executive branch has the authority to conduct warrantless
searches for foreign intelligence purposes, so long as they are
reasonable under the Fourth Amendment. Although the few courts that
have addressed the issue have followed a primary purpose test, it is
not clear that the Constitution, FISA, or Supreme Court case law
requires that test. We believe that the primary purpose test is more
demanding than that called for by the Fourth Amendment's reasonableness
requirement. Adopting the proposed FISA amendment will continue to make
clear that the government must have a legitimate foreign surveillance
purpose in order to conduct a FISA search. It would also recognize that
because the executive can more fully assess the requirements of
national security than can the courts, and because the President has a
coristitutional duty to protect the national security, the courts
should not deny him the authority to conduct intelligence searches even
when the national security purpose is secondary to criminal
prosecution.
The FISA amendment would not permit unconstitutional searches. A
FISA court still remains an Article III court. As such, it still has an
obligation to reject FISA applications that do not truly qualify for
the relaxed constitutional standards applicable to national security
searches. Rejecting an individual application, however, would not
amount to a declaration that the ``a significant'' purpose standard was
unconstitutional. Rather, the Court would only be interpreting the new
standard so as not to violate the Constitution, in accordance with the
canon of statutory construction that courts should read statutes to
avoid constitutional difficulties. See Public Citizen v. Department of
Justice, 491 U.S. 440, 466 (1989); Edward J. DeBartolo Corp. v. Florida
Gulf Coast Building & Construction Trades Council, 485 U.S. 568, 575
(1988). Amending FISA to, require only ``a'' purpose merely removes any
difference between the statutory standard or reviewing FISA
applications and the constitutional standard for national security
searches.
Third, it is not unconstitutional to establish a standard for FISA
applications that may be less demanding than the current standard,
because it seems clear that the balance of Fourth Amendment
considerations has shifted in the wake of the September 11 attacks. As
discussed earlier in this memo, the reasonableness of a search under
the Fourth Amendment depends on the balance between the government's
interests and the privacy rights of the individuals involved. As a
result of the direct terrorist attacks upon the continental United
States, the government's interest has reached perhaps its most
compelling level, that defending the Nation from assault. This shift
upward in governmental interest has the effect of expanding the class
of reasonable searches under the Fourth Amendment. Correspondingly,
changing the FISA standard to ``a significant'' purpose will allow FISA
warrants to issue in that class of searches. A lower standard also
recognizes that, as national security concerns in the wake of the
September 11 attacks have dramatically increased, the constitutional
powers of the executive branch have expanded, while judicial competence
has correspondingly receded. Amending FISA only recognizes that the
Fourth Amendment analysis has changed in light of the more compelling
nature of the government's interests given the altered national
security environment.
Fourth, amending FISA in this manner would be consistent with the
Fourth Amendment because it only adapts the statutory structure to a
new type of counter-intelligence. FISA was enacted at a time when there
was a clear distinction between foreign intelligence threats, which
would be governed by more flexible standards, and domestic law
enforcement, which was subject to the Fourth Amendment's requirement of
probable cause. Even at the time of the act's passage in 1978, however,
there was a growing realization that ``intelligence and criminal law
enforcement tend to merge in [the] area'' of foreign
counterintelligence and counter terrorism. S. Rep. No. 95-701, at 11.
September 11's events demonstrate that the fine distinction between
foreign intelligence gathering and domestic law enforcement has broken
down. Terrorists, supported by foreign powers or interests, had lived
in the United States for substantial periods of time received training
within the country, and killed thousands of civilians by hijacking
civilian airliners. The attack, while supported from abroad, was
carried out from within the United States itself and violated numerous
domestic criminal laws. Thus, the nature of the national security
threat, while still involving foreign control and requiring foreign
counterintelligence, also has a significant domestic component, which
may involve domestic law enforcement. Fourth Amendment doctrine, based
as it is ultimately upon reasonableness, will have to take into account
that national security threats in future cannot be so easily cordoned
off from domestic criminal investigation. As a result, it is likely
that courts will allow for more mixture between foreign intelligence
gathering and domestic criminal investigation, at least in the counter-
terrorism context. Changing the FISA standard from ``the'' purpose to
``a significant'' purpose would be consistent with this likely
development.
For the foregoing reasons, we believe that changing FISA's
requirement that ``the'' purpose of a FISA search be to collect foreign
intelligence to ``a significant'' purpose will not violate the
Constitution. We hope that making the Committee aware of the
Department's views is helpful to its deliberation. Please do not
hesitate to contact my office if we may be of further assistance. The
Office of Management and Budget has advised us that from the
perspective of the Administration's program, there is no objection to
submission of this letter.
Sincerely,
Daniel J. Bryant
Assistant Attorney General
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