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Less Secure, Less Free

Author: Morton H. Halperin
October 26, 2001
American Prospect

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For civil libertarians, there was one extra nightmare when we finally got to sleep on that awful day of September 11, 2001. We knew that the Washington bureaucracy's wish list of additional powers to conduct surveillance of Americans would not be based on a careful analysis of what went wrong. We feared that in the new climate, Congress would rush through the Bush administration's request without reading the text. The result would be less liberty but no greater capability to prevent terrorist acts. Within a few days, civil-liberties advocates formed a broad coalition— Organizations in Defense of Liberty— and produced a statement emphasizing our support for necessary changes in how the government conducts surveillance and our confidence that, with hard work and goodwill, compromises can be found that protect both our security and our liberty (see www.indefenseoffreedom.org).

On the eve of the press conference announcing our coalition and its statement, an antiterrorism bill, described as what the attorney general wanted, immaculately appeared on Capitol Hill. Two things about the legislation are deeply troubling: its substance and the manner in which it was rammed through Congress. The bill was not formally submitted by the administration, since that would have required a review process coordinated by the Office of Management and Budget— a procedure that would have provided an opportunity for all concerned agencies to provide comments.

As we had feared, the attorney general demanded that Congress pass the bill within a week and without change. He set an example for others by not reading the bill himself. (At the only hearing for outside witnesses held in either house, Republican Senator Arlen Specter of Pennsylvania noted that although Mr. Ashcroft kept asserting that the draft legislation permitted him to detain an alien indefinitely only in deportation proceedings, the text itself had no such limitation.) It looked at first as if the attorney general would get his way: The bill would be taken to both floors and passed without anyone knowing what was in it.

Then things seemed to change. With the help of his staff, Democrat Patrick Leahy of Vermont, the chairman of the Senate Judiciary Committee, started an intense negotiation with the Justice Department and won agreement on some changes. In the House, Congressman Jim Sensenbrenner of Wisconsin, the Republican who chairs the Judiciary Committee, and Michigan's John Conyers, the ranking Democrat, began negotiations that led to substantial improvements in the bill. The committee held an actual markup, at which further changes were made, and promised more revisions before the bill went to the floor.

But all of this turned out to be a sham. In meetings with the House and Senate leadership, Attorney General Ashcroft warned that additional terrorist acts were imminent and that Congress would be to blame if the bill were not passed immediately. This was nonsense, but Congress could not withstand such pressure.

In the Senate, an all-night negotiation between leaders of the Senate and committee leaders and their staffs led to a bipartisan bill that took back most of the concessions previously made to Senator Leahy and ignored the House compromise version. The majority leader, Senator Thomas Daschle of South Dakota, then took this draft to the floor and sought unanimous consent to bring up the proposal and pass it without debate or amendment. Only Senator Russell Feingold, a Wisconsin Democrat, objected, and he was allowed to offer three amendments. These were quickly tabled (rejected) on the motion of Senator Leahy and the bill passed with only Senator Feingold voting no.

Then it was the turn of the House. After another all-night drafting session, a text was produced that had only minor changes from the Senate-passed bill. It was rushed to the floor and passed with only three Republican and 75 Democratic votes in opposition. Thus by Friday, October 12, both houses had passed nearly identical antiterrorism bills. Despite the assertion that the powers granted by the law were urgently needed, the Congress headed off for the weekend without leaving conferees behind to reconcile the two versions, and later the House stopped working for a week in the face of concerns about anthrax without completing the final language.

All of us in this country— civil libertarians included— understand that we face a ruthless and diabolical opponent who flies civilian airplanes into buildings and is dedicated to killing Americans at home and abroad. Law-enforcement officials and intelligence agencies do need new authority, and we may well have to permit greater intrusions into our privacy in order to prevent horrendous acts of terror.

But the administration's bill was not developed in response to the events of September 11 or by an analysis of why there was such a monumental intelligence failure: Its measures were grabbed off the shelf and in many cases had nothing to do with what happened on that unforgettable Tuesday. Moreover, the administration resisted every reasonable effort to find an accommodation between the requirements of security and those of liberty. During the course of the negotiations, participants concerned about protecting civil liberty as well as security put forward a number of important suggestions, none of which were taken seriously.

For example, the administration was asked to identify its urgent needs so that Congress could provide emergency interim authority pending examination of more-permanent solutions. Officials responded by hinting that witnesses before the grand jury investigating the September 11 terrorist acts were providing information that should urgently be passed to the Central Intelligence Agency or to foreign governments to prevent imminent terrorist acts but could not be because existing law bans such sharing of information. It is true that a literal reading of the grand-jury secrecy provisions seems to allow disclosure to outsiders only for purposes of "law enforcement." But surely a judge would find that the courts have inherent power to order disclosure to save lives. Even so, legislative leaders offered to immediately pass a provision permitting disclosures from any grand jury hearing witnesses related to September 11 or other terrorist events of information related to international terrorism to intelligence officials dealing with international terrorism. The administration expressed no interest.

Moreover, most of the administration's provisions were not limited to international terrorists seeking to kill or harm Americans; they covered "terrorists" loosely defined. Critics of the bill were willing to accept most, if not all, of the proposed expansions of surveillance powers— for both intelligence and criminal investigations, including the plans for sharing information across that line— as long as the new powers were limited to terrorism and foreign-intelligence information as carefully defined in the Foreign Intelligence Surveillance Act of 1978 (FISA). The administration bitterly resisted any effort to restrict the bill as a whole or any specific provisions (including relaxing the rules of grand-jury secrecy) to this situation.

Critics repeatedly sought meetings with executive-branch officials to explain concerns and seek common ground. In almost every case, such meetings were refused. In the past, they have led to agreements between civil-liberties groups and administrations of both political parties— for example, on legislation creating the FISA court and exempting certain CIA files from the Freedom of Information Act.

Why does this matter? While this is not the place to rehash all the past abuses of the FBI and the intelligence agencies, it is worth remembering that powers granted with one purpose in mind are often used for others. Thus, antiwar protestors have been investigated as agents of a foreign power and abortion-clinic protestors have been monitored under RICO, the Racketeer Influence and Corrupt Organizations Act. The definitions in this new bill will permit would permit groups such as Greenpeace to be investigated as terrorist organizations and supporters of the political activities of the African National Congress to be spied on or incarcerated as "terrorists." Anyone protesting the attacks on Afghanistan, especially noncitizens, could be investigated under a counterintelligence rubric.

All in all, what is so troubling about the bill? Basically, it breaks down the distinction between foreign-intelligence investigations and criminal investigations by permitting— indeed, encouraging— the sharing of information between intelligence investigations and criminal ones. It also vastly expands the power of the government to gather information in an intelligence investigation and then proceed under the veil of intelligence even if the primary purpose is to gather information for a criminal investigation.

In order to understand why this is a problem, one must understand the origins of FISA, legislation that authorizes the government to conduct investigations that invade areas protected by the Fourth Amendment (which prohibits unreasonable searches and seizures) without the normal probable-cause requirements. FISA originated in a request from the Ford administration for authority to conduct electronic surveillance for national-security purposes. The government explained that it needed to gather foreign-intelligence information even when no crime was suspected, and was unwilling to provide after-the-fact notice to a subject that it had conducted a surveillance.

Congress debated long and hard about FISA. It passed legislation that was substantially different from the original draft, which had been submitted with the usual demand that it be enacted immediately, without changes. In the end, Congress and the administration struck a deal that had the support of some civil libertarians, including me (at the time, I 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 need to gather evidence of a crime. Equally important, the government was given permission to keep the surveillance secret. In return law enforcers 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 its investigators were conducting a criminal inquiry but would switch to the usual criminal procedures. The agreement also included a set of definitions that prevented the government from conducting intelligence investigations of Americans unless there is a relatively tight nexus to criminal activity, and it provided a high barrier to the dissemination of information about these subjects. Subsequently, in 1994 Congress broadened FISA to include physical searches even against the homes of Americans without a warrant, without advance knock or notice, and without ever informing the individual that the government surreptitiously acquired information from his or her home.

It is from this perspective that the proposed amendments to FISA must be examined. The most disturbing provision in the administration bill is the one permitting the government to initiate a FISA surveillance even when the investigation's primary purpose is to gather evidence for a criminal prosecution. As noted, FISA granted special surveillance authority for times when the government was gathering foreign intelligence rather than seeking to indict individuals for crimes. To now permit these procedures to be used in a criminal investigation would almost certainly be unconstitutional and would certainly be dangerous, because it would allow the government to avoid all of the safeguards that the Fourth Amendment and existing criminal law provide. The executive branch will be able to use FISA to conduct surveillance whenever it alleges that the targets were agents of a foreign power, thus circumventing the notice and probable-cause requirements of the Fourth Amendment. In situations not covered by the Fourth Amendment, the government could use FISA procedures to compel disclosure of business records, telephone logs, and other sensitive information, including details about people that it does not suspect of being agents of a foreign power.

Equally troubling are the provisions that permit the government to share information from grand-jury proceedings and from criminal wiretaps with intelligence agencies. These sections use a very broad definition of foreign intelligence that is designed explicitly to permit the sharing of information about the First Amendment activities of American citizens. As with the other sharing provisions, this new and sweeping authority is not limited to true terrorism investigations but covers a much broader range of activity.

The immigration provisions of the bill, although improved through negotiation, still sweep within the definition of terrorism individuals who provide support to a group designated as a terrorist organization or viewed as such by the attorney general— even if the organization does not operate in the United States or target Americans, and even if the support is for humanitarian purposes. It also covers people who speak out in favor of "terrorism" in any circumstance; this could include insurrections or paramilitary operations that the United States government supports. Noncitizens who fall within these categories could be detained indefinitely.

Most alarming to supporters of democratic principles was the way the bill was enacted: the absence of public hearings, of any markup in the Senate (coupled with the sham markup conducted in the House), of meaningful floor debate, of committee reports that explain the bill, and of a real conference between the two houses. One can only hope that Congress will conduct rigorous oversight of the new powers it is granting to the president— and that it will refuse to follow the same procedures or to be intimated when the next antiterrorism bill is sent to Capitol Hill.

Copyright © 2001 by The American Prospect, Inc.

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