1995 Congressional Hearings
Intelligence and Security

                     Statement of William P. Barr



                                  on



                               H.R. 1710

              The Comprehensive Aniterrorism Act of 1995"



                       House Judiciary Committee

                             June 12, 1995





Dear Mr. Chairman and distinguished members of the house

Judiciary Committee:



     It is an honor to have been invited here to testify

about the critical topic of terrorism and to express my

strong support for H.R. 1710, the Comprehensive

Antiterrorism Act of 1995. The legislation, in my view,

should enjoy wide bipartisan support.



     Recent events have dramatized a fact that the American

people, I think, have intuitively understood and law

enforcement has known for a long time: the United States is

not immune from terrorist attack. I agree with these experts

who foresee a continuing, and probably heightened, threat of

terrorist attacks by both foreign and domestic individuals

and groups. Of course, we should be careful not to

exaggerate or sensationalize the risk; I think it is

unlikely we will undergo a sudden wave of large-scale~

attacks. But, a number of factors have coalesced in recent

years which do presage that terrorism will bc a persistent

danger. These will run the gamut from isolated fanatics who

plant a crude pipe bomb to well-organized groups capable of

carrying out catastrophic attacks.



     There is no doubt that American law enforcement and

intelligence agencies have substantial resources and

capabilities to deal with the terrorist threat today.

Indeed, American agencies, 

particularly the FBI, have an enviable record to date in

addressing terrorist threats. Nevertheless, in my view,

existing resources and 

authority are not fully adequate. While I see no need for

sweeping changes, there are clearly additional reasonable

steps that should be taken to enhance our ability to deal

with terrorism. Obviously, we cannot provide absolute

security. But I think there are prudent steps we can take

today that will markedly increase the FBl's ability to

detect and interdict terrorist plans before they are carried

out. Ensuring that our anti-terrorist capabilities are

robust will also help deter some terrorist activity. From my

own experience at the Department of Justice, it was clear to

me that there are foreign groups who, until now, have chosen

not to carry out attacks in the United States, but have

focused elsewhere, because of their perception of the FBl's

vigorous and effective anti-terrorist capabilities. I

believe it is critical that whatever can be done to keep our

guard up should be done, consistent with our constitutional

principles and our free traditions.



     In this regard, I believe H.R. 1710 is an excellent

bill. It is a balanced and reasonable proposal that will

substantially enhance our ability to counter terrorism,

while at the same time preserving our cherished liberties.

The bill draws upon some important proposals made under the

Bush Administration, as well as proposals made by

the current Administration, and in several cases

significantly improves upon them.



     Before I get into some specifics, I would like to make

a few overarching points.



First, this is not, as some suggest, a knee-jerk or ill

considered overreaction to a specific event. Most of these

proposals were not thought of overnight. By-and-large most

of them have been on the table for some time and reflect the

combined wisdom and experience of both Republican and

Democratic Administrations who have had to grapple with

these problems. Consequently, the proposals are not sweeping

changes, but measured and modest steps.



Second. the proposals do not involve any erosion of

constitutional liberties. On the contrary, they are designed

to ensure that the government carries out its constitutional

obligations to protect Americans in the exercise of their

freedoms and to preserve the structure of our free

government. There is no change in the constitutional

standards that protect citizens from improper government

intrusion into their private affairs.



And third, having worked closely with the FBI and the

personnel at the Department of Justice, I have the utmost

confidence

that law enforcement agencies today will carry out these 

responsibilities with integrity and with sensitivity for

constitutional liberties. I think the leadership and the

rank and file are men and women who are deeply dedicated and

committed to our Constitution and to protecting and serving

the citizens of this country, and they have no desire to

harass or to intrude into the private affairs of law-abiding

and nonviolent political groups.



     Now let me turn to some specifics of H.R. 1710.



     Title lll of H.R. 1710 ensures that certain appropriate

investigative tools are available to law enforcement in

terrorism cases. In my view, none of these provisions

involve an erosion of privacy rights. For the most part,

these provisions simply ensure that perfectly constitutional

and sensible investigative techniques that are authorized in

various other types of cases are equally applicable to

terrorism cases. In all cases, these proposed authorities

conform to constitutional guarantees.



     I have noticed, for example, criticism of the proposal

in section 308 to allow temporary emergency wiretaps in

terrorism cases -- with the suggestion made that this

represents a wide expansion of powers. These criticisms are

unjustified. Emergency wiretap authority exists under

current law with respect to a range

of criminal activity, including "conspiratorial activities

characteristic of organized crime."   18 U.S.C. 2518

(7)(a)(iii). This existing authority is subject to

substantial safeguards, including the requirement that the

government must promptly establish "probable cause" and

obtain a court order. Existing emergency authority has been

sparingly used and I am not aware of any indication of

abuse. It is clearly appropriate that the same emergency

authority that applies with respect to Mafia conspiracies

also applies to terrorist conspiracies which, by their

nature, are directed at the destruction of life and

property.



     Similarly, section 309's authorization of "roving"

wiretaps is reasonable and fully in accord with

constitutional safeguards. While this concept sounds

sinister, it is really quite sensible and in many cases

essential. In earlier days when the wiretap statute was

first enacted, wiretaps were targeted at a specific

telephone. Today, however, with increased mobility, cases

arise where the government clearly has "probable cause" to

believe that a particular individual is involved in criminal

activity (and therefore as a constitutional

matter, has the right to intercept the individual's

communications) but cannot establish in advance the

particular phones that individual may use. Section 309

simply allows the government to obtain a warrant that

authorizes following the targeted individuals'

communications rather than staying anchored to a particular

telephone. Still, section 309 imposes safeguards by

requiring proapproval by a top Justice Department officio

and a showing that it is impractical to identify a

particular phone. This is perfectly in line with

constitutional protections. After all, the right to privacy

guaranteed under the Forth Amendment is an individuals right

to privacy; it is not an inanimate object's (a telephone's)

right to privacy. Section 309's concept of roving wiretaps

targeted at particular suspects rather than specific phones

should not cause alarm.



     There has been much comment on the proposal to amend

the Posse Comitatus Act to allow military assistance in

terrorism cases involving chemical or biological weapons. On

the one hand, the tradition that the army should not

directly carry out law enforcement actions is one we all

treasure; on the other hand, I can tell you, based on my own

direct experience, that the threat of biological or chemical

terrorism is a real one and that law enforcement would

likely need to call on the technical and logistical

assistance of the military to deal with any future attempted

attack. Section 312 of H.R. 1710 is a wise and carefully

crafted provision that strikes the right balance. It

continues to prohibit direct law enforcement actions by the

military, while still allowing "technical and logistical

assistance." It is thus faithful to the principles of the

Posse Comitatus Act, while recognizing the reality

of our obligation to take every practical step to prevent a

biological/chemical catastrophe. My own view is that this

provision really only clarifies existing law; it reflects

how the Posse Comitatus Act would be interpreted today in

the event of an attack. Moreover, it is comparable to other

existing exceptions to the Posse Comitatus Act that Congress

has already authorized for counter narcotics activities. 10

U.S.C. 371-375.



     Title V of H.R. 1710 contains a number of important

provisions relating to the immigration laws. Existing law

simply does not give law enforcement the tools to deal

effectively with alien terrorists who are either present in

or entering the United States. I learned this first hand

during Desert Storm and several other episodes while I was

at the Department of Justice. The reforms proposed in H.R.

1710 are similar to ones initially proposed under the Bush

Administration and now by the Clinton Administration.



     The provision that has drawn the most fire is the

special court for removing alien terrorists. This proposal

grew out of actual cases. It is imperative we deal with the

Hobson's choice that exists where we have clear evidence

that a particular alien in the country is a dangerous

terrorist and, yet, we are relying on information that we

cannot disclose without creating equal danger to the

American people and disclosing sources that we may need to

continue to

monitor these terrorist groups. Section 601 of H.R. 1710

sets forth a very balanced and reasonable way of dealing

with that Hobson's choice. Indeed, Section 601 adopts

safeguards beyond those proposed by the Administration and

well beyond what is required by the Constitution. In the

case of a permanent resident alien, an attorney for the

alien would be permitted access to the classified

information upon which the Government's decision was based.

This should remove any objection to this removal procedure.



     In sum, H.R. 1710 would significantly enhance the

ability of law enforcement to deal with both foreign and

domestic terrorism. It does this without undermining our

cherished constitutional liberties. It deserves the

bipartisan support of this Congress.