1995 Congressional HearingsIntelligence and Security
1995 Congressional Hearings
STATEMENT
OF
GREGORY T. NOJEIM
LEGISLATIVE COUNSEL
AMERICAN CIVIL LIBERTIES UNION
WASHINGTON NATIONAL OFFICE
ON
CIVIL LIBERTIES IMPLICATIONS OF H.R. 1710,
THE COMPREHENSIVE ANTITERRORISM ACT OF 1995
AND RELATED LEGISLATIVE RESPONSES TO TERRORISM
BEFORE
UNITED STATES HOUSE OF REPRESENTATIVES
COMMITTEE ON THE JUDICIARY
JUNE 12, 1995
Mr. Chairman and Members of the Committee:
I appreciate the opportunity to testify before you
today on behalf of the American Civil Liberties Union
(ACLU). The ACLU is a nation-wide, non-partisan organization
of more than 275,000 members devoted to protecting the
principles of freedom set forth in the Bill of Rights. I
will focus my remarks on the civil liberties implications of
H.R. 1710, the "Comprehensive Anti terrorism Act of 1995"
introduced by Mr. Hyde to cover both domestic and
international terrorism. Where appropriate, I will compare
that legislation to H.R. 896, the "Omnibus Counter terrorism
Act of 1995," introduced at the request of the
Administration in February 1995 to combat international
terrorism, and H.R. 1635, the "Anti terrorism Amendments Act
of 1995," introduced after the April 19 bombing in Oklahoma
City at the request of the Administration ostensibly to
combat domestic terrorism.
While each of these bills was introduced to combat
terrorism, in the view of the ACLU, the legislation would do
substantial damage to civil liberties in the United States.
Instead of being tools to prevent "another Oklahoma City"
the portions of the legislation that violate civil liberties
have little to do with preventing such a bombing attack in
the future. They are instead a collection of measures--many
of which have been offered before-attached to legislation
promulgated as terrorism legislation.
From a civil liberties perspective, some provisions of
H.R. 1710 are an improvement over the Administration's
bills, but other provisions are a step backward, and raise
even more civil liberties problems than they solve. Enacting
H.R. 1710 in its current form, or amending it into a bill
that would further erode civil liberties, would be like
adding kerosene to the fire of distrust of the government
that has been espoused by some following the tragedy in
Oklahoma City. Amendments to the bill could mitigate the
constitutional problems raised by the legislation.
The ACLU recognizes that the bombing in Oklahoma City
should prompt us to re-examine the ability of law
enforcement to protect us against violent activity. This
re-examination 'should be conducted carefully, and any new
proposals should be narrowly focussed on the problem they
would address, and be consistent with the Constitution.
Terrorism legislation to deal with criminal activity can be
enacted without adding the Bill of Rights to the list of
casualties in Oklahoma City.
Our concerns about the pending legislation are discussed
below.
1
NEW, BROAD DEFINITION OF DOMESTIC TERRORISM
A. Background
Section 315 of H.R. 1710 would substantially broaden
the definition of "terrorism" in current law to cover
domestic (as opposed to international) activity, including
violence at abortion clinics. The activity that would become
"terrorism" includes so much activity that the section
cannot help but be enforced selectively, according to the
politics of the day.
B. Discussion
Section 315 of H.R. 1710 would re-write a section of
U.S. law' defining "international terrorism." It would label
as "terrorism" certain activity which occurs wholly within
the United States. Under Section 315, "terrorism" would be
defined as the use of force within the U.S. in violation of
the criminal laws of the United States or of any state, that
appears to be intended to achieve political or social ends
by intimidating or coercing a segment of the population or
influencing a government or government official.
"International terrorism" would be terrorism that occurs
primarily outside of the United States or transcends
national boundaries.
The sweep of this section is breathtaking. It would
turn into "terrorism" any forcible blocking of an abortion
clinic if that use of force violated any criminal law, such
as the FACE law. It would turn into "terrorism" any forceful
act of civil disobedience that violates a criminal law,
engaged in by any civil rights activist. It would turn into
"terrorism" the forcible entry by an animal rights group
into a building at night for the purpose of hanging a banner
from the window to expose the torture of animals. It would
turn into "terrorism" the forceful disruption of an
anti-Semitic speech by a member of the Ku Klux Klan, if such
activity was "intimidating" to the Klan and violated a state
criminal law against disruptive behavior. It is clear that
this definition would sweep in an extraordinarily wide range
of activity.
Then the dominoes would fall. Under 18 U.S.C. Section
2339A, it would be a crime punishable by a substantial fine
and up to ten years in prison to provide material support or
resources, including cash, meeting facilities,
transportation, or goods for the conduct of such
"terrorism." In other words, if the anti-abortion group used
church busses to get to the clinic, or met in the church
basement to plan the protest, the church would be providing
material support for terrorism. Under Section 2339A as it
would be amended by Section 103 of H.R. 1710, the statutory
protection against investigating First Amendment activity at
the church would be abolished, leaving only the Attorney
General Guidelines as a
--------------------
1 8 U.S.C. Section 2331.
2
protection (see discussion below). Under Section 308 of H.R.
1710, the FBI would be empowered to obtain, without a court
order, an "emergency wiretap" of the meeting in the church
basement at which the protest was planned (see discussion
below).
Congress has hesitated to adopt a statute defining
"terrorism" in the United States because any such definition
threatens to sweep in a broad range of conduct and raises
the prospect that the statute would be enforced selectively.
Former President George Bush once said, "One man's terrorist
is another man's freedom fighter." This proposed section of
law underlines President Bush's observation, and illustrates
why legislating in this area is so difficult.
C. Recommendation
Section 315 should be deleted.
FIRST AMENDMENT SUPPORT FOR LEGAL ACTIVITIES
A. Backqround
The First Amendment to the Constitution guarantees to
people in the United States the right to freely associate.
This right extends both to citizens and to non-citizens.
Courts have interpreted the First Amendment to mean that
people are to be held accountable for their own actions, not
for the actions of others. The courts have consistently held
that raising and contributing money, and recruiting members,
are activities protected by the First Amendment. Only
support intended to further the unlawful activities of a
group can be prohibited.
To be consistent with the Constitution, effective
terrorism legislation must prohibit unlawful activity, not
merely associations, because to do otherwise would be to
operate on nothing less than guilt by association. Like
Section 301 of H.R. 896, Section 102 of H.R. 1710 would do
violence to this principle. The legislation would turn into
a criminal act the giving of a pencil to a school operated
by a group designated a terrorist organization by the
President.
B. Discussion
Section 611 of H.R. 1710 would give the President
unprecedented power to designate any foreign group a
"terrorist" organization. Once so designated, its members
would be barred from
3
entering the United States2 and Section 102 of H.R. 1710
would make it a criminal act to provide support for
non-violent, charitable activities of such organizations. A
similar provision barring support for legal activities
appears in Section 301 of H.R. 896.
The proposed legislation would attack citizens who
support the non-violent, legal activity of unpopular groups
label led as "terrorist organizations." Section 611 of
H.R. 1710 would give the President unprecedented authority
to designate any foreign organization found by the President
to have ever engaged in "terrorist activity" that threatens
the national security of the United States. "Terrorist
activity" is broadly defined under current law to include
unlawful use of any explosive or firearm (other than for
mere personal gain -- such as a robbery) with intent to
cause substantial damage to property. 3 Once so label led,
anybody in the U.S. who sent money to the organization, even
to support non-violent, charitable activity of the
organization, would be subject to a substantial fine and up
to ten years in prison.4
Current law already criminalizes the provision of
material support for certain criminal "terrorist"
activities.5 The legislation therefore is calculated to
outlaw support for what is left: lawful activities of
designated organizations -- a fundamentally flawed approach.
H.R. 1710 contains no provision for judicial review of
the President's designation of a "terrorist organization."
Moreover, few, if any, courts would second-guess the
President when the criteria for the designation is the
national security of the United States. Courts simply have
no way to measure whether the group's activities threaten
"national security." Under Section 611(a)(2), Congress,
however, could pass a law reversing the Presidential
designation, and would be advised of the impending
designation at least three days prior to publication in the
Federal Reqister. Congressional review opens up more
problems than it solves: lobbyists from various groups would
descend on Congress armed with
--------------------
2 The immigration implications of this new power to
designate groups are discussed below under "Resurrection of
McCarran-Walter Act."
3 Under H.R. 896, terrorist activity would be even more
broadly defined to include fund raising for the legal, non-
violent, even charitable activities of organizations
designated as terrorist organizations.
4 Section 301 of H.R. 896 also provides for the freezing of
the assets of any designated organization, without any due
process.
5 18 U.S.C. Section 2339A.
4
reports, charts, legal briefs and arguments about why other
groups who disagree with them should be designated as
terrorists, or why they should not be designated.
In addition, because the bill allows for designation of
any group that "engages in or has engaged in" terrorist
activity, the President would be empowered to designate any
group that has abandoned terrorist activity. Such groups
would include the African National Congress, which the
United States government once considered a terrorist
organization. Finally, unlike H.R. 896, under H.R. 1710,
there would be no opportunity for an individual to obtain a
license to furnish support for the legal, non-violent
charitable activities of a designated organization. 6
H.R. 896 contains a similar provision at section 301,
and it differs in a number of ways from H.R. 1710.
Presidential designations of a terrorist group are
effectively unreviewable by a court because designation is
conclusive7 and based on foreign policy and national
security grounds. This provision in H.R. 896 differs in that
the presidential designation is permanent unless reversed by
the President, cannot be reviewed by Congress, can cover
domestic groups who raise funds for or "act on behalf of"
any foreign designated group, and a person could in theory
obtain a license to contribute to the non-violent,
charitable activities of the designated organization. 8
--------------------
6 Section 611 of H.R. 1710 also provides that the
presidential designation will lapse if not renewed every two
years.
7 The Administration has expressed a willingness to remove
from its bill the language indicating that the designation
would be conclusive.
8 The licensing provision in the Administration bill would
in theory allow a donor to secure a license to support the
charitable, religious, literary, or educational purposes of the
designated organization. However, the licensing provision is
wholly illusory because: (i) it would require a foreign
organization, declared a "terrorist" organization by the
President, to open its books to the Treasury Department as a
condition of granting the license; and (ii) it would require
a donor who would transfer money to such foreign
organization to likewise open its books to the Treasury
Department and be able to show "the source of all funds it
receives, expenses it incurs, and disbursements it makes"
regardless of whether the expenses, disbursements, and
income relate to the charitable activity it
would like to support -- a virtually impossibility for
individual donors. No exception was made for religious
institutions, which likewise would be required to open their
books to the government in order to make a donation. This
would risk impermissible
5
The fund raising provisions of each piece of proposed
legislation take a fundamentally flawed and unconstitutional
approach. Criminalizing support for such legal activities is
not the way to deal with terrorism. These sections of the
bill smack of McCarthyism at its worst. Instead of outlawing
support for legal, non-violent activities of designated
organizations, the ACLU suggests Congress focus on outlawing
support for illegal activities of any individual or
organization.
The Supreme Court has repeatedly held that contributing
money to political groups is protected by the First
Amendment. 9 It has also repeatedly held that the First
Amendment bars the government from prohibiting support for
an organization unless the government proves that the person
furnishing the support intended to further the unlawful
activities of the organization. It developed this principle
in a series of cases involving the Communist Party, despite
the government's contention that the Communist Party posed a
threat to national security and sought to overthrow the U.S.
government by force.lø In Healy v. James, 408 U.S. 169, the
Court held:
'guilt by association alone, without [a showing] that
an individual's association poses the threat feared by
the Government,' is an impermissible basis upon which
to deny First Amendment rights. The government has the
burden of establishing a knowing affiliation with an
organization pursuing unlawful aims and goals, and a
specific intent to further those illegal aims.
The implications of logic supporting this provision in
H.R. 1710 are profound. The logic suggests that the
government could, without violating the Constitution, punish
any support for any group that plans to engage in unlawful
activity. Taken to i
ts
--------------------
entanglement between church and state.
9 See Citizens Aqainst Rent Control v. Berkeley, 454 U.S.
290, 295-296 (1981); Federal Election Commission v. National
Conservative Political Action Committee, 470 U.S. 480,
493-495 (1985); and Roberts v. United States Jaycees, 468
U.S. 609, 62627 (1984).
10 See Keyishian v. Board of Regents, 385 U.S. 589, 606-07
(1967) (striking down a statute barring members of the
Communist Party from employment); Elfbrandt v. Russell, 384
U.S. 11 (1966) (same); United States v. Robel, 389 U.S. 258
(1967) (same); Communist Party of Indiana v. Whit comb, 414
U.S. 441, 448-49 (1974) (regarding ballot access); APtheker v.
Secretary of State, 378 U.S. 500 (1964) (freedom to travel abroad);
Baird v. State Bar of Arizona, 401 U.S. 1 (1971) (right to practice
law); and Schware v. Board of Bar Examiners, 353 U.S. 232 (1957)
(same).
6
logical end, this means that the government could punish a
person for paying membership dues to the National
Association for the Advancement of Colored People (NAACP) if
the member knew that the organization planned an act of
civil disobedience. This logic suggests likewise that it
would be permissible under the Constitution to punish a
person who paid membership dues to an anti-abortion group,
if the person paying the dues knew the group planned to
trespass on the premises of an abortion clinic.
Even as written, the legislation could have a dramatic,
negative effect on organizations that would conduct relief
activities in many troubled parts of the world.ll By barring
individuals and organizations from providing even in-kind
support to organizations the President has designated as
"terrorist" organizations, the legislation could disrupt
relief efforts encouraged by the U.S. government.
In some troubled parts of the world, relief
organizations have no choice but to work through
organizations likely to be designated as "terrorist"
organizations by the President. Relief organizations must
often pay small fees or bribes to groups that conduct some
objectionable activity. Afghanistan is a prime illustration.
To furnish any funds, goods, or services to such a group,
even if done to advance a humanitarian endeavor, would
become a crime.
The faction in Somalia headed by Mohammed Far ah Aide
Ed ("Aide Ed faction") would likely have been designated a
"terrorist" group, had legislation such as that now proposed
been pending when the United States was leading relief
efforts in Somalia. To conduct relief work in Somalia, many
non-governmental organizations were required, as a condition
of getting a truck full of supplies such as grain or
medicine through an area controlled by the Aide Ed faction,
to hire "guards" furnished by this faction, and give a
portion of the supplies to this faction. NGO's did not like
to do this, but they did it to save lives. Under the pending
legislation, paying those "guards" or furnishing that bag of
grain as a "toll" so a truck filled with grain could get
thro,ugh, would become a criminal act. 12 This would be the
case even if the giver
--------------------
11 The following section assumes that the phrase "within the
United States" is not intended to prohibit prosecution of an
individual or organization raising funds here, but providing
material support to a "terrorist" organization abroad.
Section 301 of H.R. 896 clearly contemplates such
prosecution.
12 In fact, under Section 301 of H.R. 896, the President
would have the power to designate such a U.S.-based NGO as a
"terrorist" group and prohibit it from fund raising to do
this relief work. See proposed 18 U.S.C. Section 2339B(b)
and (c)(2). In contrast, H.R. 1710 would permit the
President to designate
7
of this aid had no intention of furthering the violent,
illegal activity of the Aide Ed faction.
Another example of a group likely to be designated a
"terrorist" organization is the Zapatistas in Chiapas,
Mexico. If the President designates the Zapatistas a
terrorist organization, it would then become illegal to do
relief work in Chiapas, if as part of that work, a relief
organization furnished money or goods to institutions
affiliated with the Zapatistas. One can be sure that the
designation of which group is a terrorist group will be made
in large part on the basis of political concerns, and as a
result of pressure exerted by foreign governments on our
own.
Much of this relief work would not be conducted if
criminal sanctions were threatened. The work is already
dangerous enough. The same dilemma would be faced by
organizations doing missionary work in troubled areas of the
world, if as part of that work, the organization had to pay
in money or goods an arm of an organization designated a
terrorist group.
C. Recommendation
The proposed legislation takes a fundamentally flawed
approach to the alleged problem of fund raising for
terrorist activity, if indeed there is one.13 To pass
constitutional muster, terrorism legislation would have to
focus on activity instead of on associations. This section
should be struck altogether. Instead, Congress might
consider expanding the list of crimes in 18 U.S.C. Section
2339A to make criminal the provision of material support for
more violent activity abroad.
REPEAL OF FIRST AMENDMENT PROTECTION FOR FUNDRAISING
ACTIVITIES
A. Background
Section 103 of H.R. 1710 (as well as Section 601 of
H.R. 896) would subject citizens and aliens to FBI
investigation tar activity protected by the First Amendment.
Last year, Congress adopted legislation prohibiting people
in the U.S. from providing "material
--------------------
only foreign organizations as "terrorist" groups.
13 To our knowledge, the Administration has made no showing
that substantial funds are being sent from the United States
to support terrorist activity abroad. Such a showing,
including dollar amounts and the type of activity being funded, should
be a minimal prerequisite for seeking new legislation to stop such
alleged funding. Indeed, this provision should not be considered until
the Secretary of State and the Attorney General produce
data that would justify Congressional action.
8
support" for terrorist acts. 14 To prevent FBI "fishing
expeditions" into activities protected by the First
Amendment, the legislation included clauses prohibiting
investigations of people: (i) who provide humanitarian
assistance to people not directly involved in criminal
activity; and (ii) engaged only in activities protected by
the First Amendment. This legislation would repeal those
modest protections and permit investigation in the absence
of facts that reasonably indicate that the target of the
investigation knowingly and intentionally has or will engage
in the violation of a federal criminal law.
B. Discussion
The proposed legislation would repeal the following
language appearing in the statute Congress enacted to bar
people in the United States form providing material support
for certain crimes:
(c) Investigations-
(1) In general.--Within the United States, an
investigation may be initiated or continued under this
section only when facts reasonably indicate that-
(A) in the case of an individual, theindividual
knowingly or intentionally engages, has engaged, or is
about to engage in the violation of this or any other
Federal criminal law; and
(B) in the case of a group of individuals, the group
knowingly or intentionally engages, has engaged, or is
about to engage in the violation of this or any other
Federal criminal law.
(2) Activities protected by the First Amendment.-An
investigation may not be initiated or continued under
this section based on activities protected by the First
Amendment to the Constitution, including expressions of
support or the provision of financial support for the
nonviolent political, religious, philosophical, or
ideological goals or beliefs of any person or group.
18 U.S.C. Section 2339A(c). In many ways, this provision,
which Section 103 of H.R. 1710 would repeal, is a model of
how the line should be drawn between support for illegal
activity and support for constitutionally protected
activity.
--------------------
14 18 U.S.C.
Section 2339A.
9
Paragraph (c)(2) is a particularly important
protection, and it is difficult to understand how this
provision, which protects against unfounded investigation of
First Amendment activity, would hamper investigation of
criminal activity. In fact, the guidelines governing FBI
investigations of such activity state specifically:
It is important that such investigations [of criminal
activity] not be based solely on activities protected by the
First Amendment or on the lawful exercise of an other rights
secured by the Constitution or laws of the United States. 15
The Administration, in the section-by-section analysis
provided Congress when H.R. 896 was introduced in February,
claimed that the "knowingly and intentionally" language in
subparagraphs l(A) and l(B) disrupt the "natural flow of a
criminal investigation," because these elements of the crime
might not be determined until an investigation is commenced.
However, the guidelines governing FBI investigatory activity
specifically provide for preliminary inquiries in such
circumstances, so that a determination about whether to
commence a full investigation can be made. The guidelines
say:
On some occasions the FBI may receive information or an
allegation not warranting a full investigation --
because there is not yet a "reasonable indication" of
criminal activities -- but whose responsible handling
requires some further scrutiny of initial leads. In
such circumstances, though the factual predicate for an
investigation has not been met, the FBI may initiate an
"inquiry" involving some measured review, contact, or
observation activities in response to the allegation or
information indicating the possibility of criminal
activity.
This authority to conduct inquiries short of a
full investigation allows the government to respond in
a measured way to ambiguous or incomplete informatiqn
and to do so with as little intrusion as the needs of
the situation permit. ... It is contemplated that such
inquiries would be of short duration and be confined
solely to obtaining the information necessary to make
an informed judgment as to whether a full investigation
is needed. 16
--------------------
15 The Attorney General's Guidelines on General Crimes,
Racketeering Enterprise and Domestic Security/Terrorism
Investigations, p. 3.
16 Id. at 4.
10
Nothing in the statutory language H.R. 1710 would
delete would prohibit the FBI from conducting a preliminary
inquiry to determine whether a full investigation of
material support for terrorism should be opened. When
conducting such a preliminary inquiry, the FBI could use,
under its guidelines, investigative techniques including
questioning of informants, confidential sources and
acquaintances of the alleged wrongdoer, physical and
photographic surveillance, under cover operations and
infiltration, and electronic surveillance.
The FBI has a history of commencing unfounded
investigations into First Amendment activity of groups,
including its investigation of the Committee in Solidarity
with the People of El Salvador (CISPES) and the Cointelpro
investigations of civil rights groups and leaders in the
1970s. Recently, the AIDS activist group ACT UP learned that
the FBI had maintained a file of over 100 pages on the
group, and refused to make most of the file public.
Moreover, the FBI recently announced that it was
"re-interpreting" the Attorney General Guidelines that
govern its domestic investigations in a manner that would
allow it to track more activities in the United States.
Against this backdrop, Congress is asked by the FBI to
repeal a substantial protection against FBI investigation of
protected First Amendment activity.
Section 103 of H.R. 1710 would also delete from
existing law the portion of 18 U.S.C. Section 2339A
excepting "humanitarian assistance to persons not directly
involved in such violations" from the definition of
proscribed material support for terrorism. 17 Deletion of
this language suggests that a person could be "providing
material support to terrorists" if they provided
"humanitarian assistance to persons not directly involved in
such violations" of criminal law as are set forth in the
statute. If the First Amendment protective language
described above is deleted, then persons may be investigated
for engaging in such humanitarian activity. The deletion
would create even more problems for NGO's doing relief work
in troubled areas of the globe. They would lose the safe
harbor this protective language created.
C. Recommendation
H.R. 1710 should be amended to include all portions of
the protective language recited above, or Section 103 should
be deleted from the bill altogether, to preserve these
protections as they appear in current law.
--------------------
17 H.R. 896 contains no similar provision.
DEPORTATION BASED ON SECRET BVIDENCE
A. Backqround
The Fifth Amendment to the U.S. Constitution guarantees
that a person shall not be deprived of life, liberty or
property without due process of law. Section 601 of H.R.
1710, like Section 201 of H.R. 896, would establish a new
court that could deport aliens as "terrorists" without
allowing them an opportunity to see the evidence against
them. 18
Section 601 of H.R. 1710 would allow for the use of
evidence kept secret from an alien in deportation
proceedings brought against an alien allegedly deport able
for engaging in terrorism activity. It provides for a new
court that would receive classified information about the
alien out of the presence of the alien and the alien's
attorney. It would commence a special removal hearing.
During the proceedings, the accused non-immigrant alien
would be held in custody, and the accused permanent resident
alien would be held in custody unless he or she could prove,
at a hearing at which classified information could be
submitted ex parte and in camera, that the alien should be
released because he or she is not likely to flee, and would
not endanger national security or the safety of any person.
For the actual hearing, the government would summarize
any classified information to be used against the alien. The
court would approve the summary if the court found it
sufficient to: (i) inform the alien of the general nature of
the evidence that the alien is deport able as a terrorist
and (ii) permit the alien to prepare a defense. The
court-approved summary would be provided to the alien unless
the court found that there is a reasonable likelihood that
provision of the summary would cause serious and irreparable
harm to the national security, or serious bodily injury to a
person.
In such a case, if the alien is a non-immigrant, the
alien could be deported based on the secret evidence,
examined by the court in camera and ex parte, without any
further protection. If the alien is a permanent resident,
the judge would appoint an attorney with a security
clearance ("Special Attorney") to review the secret evidence
and challenge it in an in camera proceeding on
--------------------
18 Even more striking, Section 202(d) of H.R. 896 would
allow the use of secret evidence in a deportation proceeding
against any non-immigrant alien, even if the grounds of
deportation have nothing to do with terrorism at all. It
could be used to deport a student alleged to have worked
off-campus in violation of their status, or against a person
alleged to have done nothing more than overstay a visa. This
proposal does not belong in a terrorism bill.
12
behalf of the alien. Such Special Attorney would be
prohibited from disclosing the secret evidence to the alien
or to the attorney chosen by the alien, at the risk of
facing a minimum of 10 years in prison .
Section 601 of H.R. 1710 is similar to legislation
Congress declined to adopt in each of its two previous
sessions. It differs from that legislation, from H.R. 896
and from S.735, terrorism bill the Senate passed a few days
ago in that a Special Attorney acting in the alien's
interest would have access to the secret information.
Nonetheless, this procedure does not pass constitutional
muster because it denies aliens -- both permanent residents
and non-immigrants -- their due process rights to confront
the evidence against them, and in the case of permanent
residents, the due process right to choose their own
counsel.
The government has never before used secret information
to deport an alien living in the United States. The most
fundamental requisite of due process is that any evidence
the government relies upon must be disclosed so that it can
be responded to and defended against.
This provision of law is unnecessary. Already, the
government has the power to exclude from the United States
any alien who has engaged in terrorist activity (as broadly
defined), or about whom the Attorney General or a consular
officer has reasonable ground to believe is likely to engage
after entry in terrorist activity. 8 U.S.C. Section
1182(a)(3)(B). After entry, an alien who commits a serious
crime -- a crime of the type most of the public considers
"terrorism," is treated as follows: they are arrested, they
are held (and held without bond if they are a flight risk or
a danger to the community), they are tried, if guilty, are
convicted, are sent to prison, and in the case of serious
crimes, they are deport able at the end of their time in
prison. Instead of using this procedure, the bill would
substitute a procedure allowing the government to deport an
alien, convicted of no crime, as a terrorist, on the basis
of evidence the alien never sees.
The Supreme Court and the lower courts have
consistently held that aliens who have entered the United
States gain the full protections of the due process clause,
and therefore cannot be deported on the basis of information
not disclosed to them. Kwonq Hai Chew v. Coldinq, 344 U.S.
590, 597 (1953) (interpreting secret trial provision not to
apply to resident alien because to do so would raise due
process concerns); Rafeedie v. INS, 880 F.2d 506 (D.C. Cir.
1989) (affirming preliminary injunction against INS attempt
to use secret information to exclude permanent resident
alien); Rafeedie v. INS, 795 F. Supp. 13 (D.D.C. 1992)
(declaring unconstitutional the government's attempt to use
secret information to exclude permanent resident alien). In
Matthews v. Dias, 426 U.S. 67, 77 (1976) the Court stated:
13 There are literally millions of aliens within the
jurisdiction of the United States. The Fifth Amendment,
as well as the Fourteenth Amendment, protects every one
of these persons from deprivations of life, liberty, or
property without due process of law. Even one whose
presence in this country is unlawful, involuntary, or
transitory is entitled to that constitutional
protection.
As recently as January, 1995, the District Court of the
Central District of California held that to deny non
discretionary relief to plaintiff aliens based on classified
information kept secret from them would deny them due
process rights. In AmericanArab Anti-Discrimination
Committee v. Reno, CV 87 2107 (January 24, 1995), Slip. Op.
(appeal pending) Judge Wilson stated:
One would be hard pressed to design a procedure more
likely to result in erroneous deprivations. As Justice
Frankfurter observed: 'Secrecy is not congenial to
truth-seeking . . . . No better instrument has been
devised for arriving at the truth than to give a person
in jeopardy of serious loss notice of the case against
him and opportunity to meet it.'
citing Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123,
171-72 (1951) (Frankfurter, J., concurring).
The courts have permitted the government to use
classified information only to exclude aliens who have not
yet entered the United States (U.S. ex ret. Knauff v.
Shaughnessy, 338 U.S. 537 (1950)) or to deny an alien a
discretionary immigration benefit (Jay v. Boyd, 351 U.S.
345, 357-59 (1956), reasoning that because an alien's
application for discretionary relief can be denied for any
reason whatsoever, it may be denied on the basis of secret
information) -- never to deport an alien already present.
The danger presented by withholding from aliens the
evidence upon which they would be deported is real and
significant. In one case that went to the Supreme Court,
U.S. ex ret.,Knauff v. Shaughnessy, 338 U.S. 537 (1950)
secret evidence was allowed to be used to exclude from the
United States the alien wife of a U.S. citizen. Mrs. Knauff
was in exclusion proceedings and had not yet entered the
United States. As a result of public pressure, a hearing was
granted notwithstanding the Court's ruling that because Mrs.
Knauff had not entered the U.S., she did not have the right
to see the secret evidence. In the course of the hearing,
the secret evidence was found to be worthless because the
"confidential source" offering the evidence was determined
to be a jilted lover. Mrs. Knauff was allowed to enter the
United States. The case
provides a graphic illustration of the danger of allowing
secret
14
evidence to be used against aliens in deportation
proceedings.19
Providing the secret, undisclosed evidence to an
attorney chosen by the court, not the alien, does not cure
this provision of its due process infirmities. First, the
provision only applies in the case of permanent residents --
non-immigrants would often not receive a summary of the
classified information, no Special Attorney could be
appointed to review the secret evidence and argue on behalf
of the non-immigrant alien, and he or she could be deported
based on the secret evidence.
Second, an alien in a deportation proceedings has a
right to choose his or her own counsel under the due process
clause of the Fifth Amendment. 20 Section 601 of H.R. 1710
would deny the alien that right with respect to the review
of the secret evidence. While the alien would have the
opportunity to choose his or her own counsel for other
purposes, the court would choose the Special Attorney who
would review the secret evidence for the alien. This review
is at the very heart of the special deportation proceedings
that would be established under Section 601: without the
secret evidence, there would be no need for the special
deportation proceedings. Therefore, to deny the alien the
right to choose his counsel in connection with the
proceedings regarding secret evidence is to deny the alien
his right to counsel in these proceedings.
Third, providing counsel, but not the alien, with
access to the secret evidence does not satisfy the alien's
due process rights. Often, it is only the alien -- not a
Special Attorney who is not even acquainted with the alien
-- who knows whether a particular piece of information is
inaccurate, or a particular source unreliable. No "Special
Attorney" would have known in the Knauff case discussed
above that the source of the secret evidence was in fact a
jilted lover. No "Special Attorney" would be in a position
to impeach such a witness because the Special Attorney would
be barred by law from disclosing the name of that witness to
the only person who would know why the witness was
unreliable: the alien client.
These provisions contrast sharply with the Classified
Information Procedures Act (CIPA) 21 . While we believe that
CIPA
--------------------
19 See also, Charles D. Weisselberg, The Exclusion and
Detention of Aliens: Lessons from the Lives of Ellen Knauff
and Iqnatz Mezei, 143 Penn. L. Rev. 993 (April 1995)
20 Montilla v. INS, 926 F.2d 162, 166 (2nd Cir. 1991); U.S.
v. Villa-Fabela, 882 F.2d 434, 438 (9th Cir. 1989); and
RiosBerrios v. INS, 776 F.2d 859, 862 (9th Cir. 1985).
21 18 U.S.C. App. IV, Section 1 et seq.
itself raises constitutional concerns because it can operate
to require a defendant to mount a defense with only a
summary of the classified evidence, the CIPA procedures
would be preferable to Section 601 of H.R. 1710.
CIPA establishes a procedure by which a defendant in a
criminal case may seek to use classified information in his
or her defense. If the government objects to the use of
classified information, it can submit to the court a summary
of the classified information which must provide the
defendant with substantially the same ability to make a
defense as would disclosure of the classified information.22
The judge holds a hearing, in camera if necessary, at which
the defendant is given an opportunity to question the
adequacy of the summary. Under CIPA, if no fair summary
protecting the classified information can be provided, the
summary is rejected, the information cannot be used, and the
court sanctions the government for refusing to consent to
public disclosure, by dismissing the entire indictment or
counts of the indictment, by entering findings against the
government, or by striking the testimony of witnesses.
Thus under CIPA, when a fair summary protecting
disclosure of classified information cannot be provided the
defendant, the government cannot use the classified
information. H.R. 1710 would turn CIPA on its ear: if
provision of a fair summary of the classified information
would, for example, disclose the name of an informant the
government claims could be injured if identified, no summary
would be required, the classified information would be used
as evidence to deport the alien, (a Special Attorney could
review the information and advocate for a permanent resident
alien) and the government would suffer no sanctions.
The proposed legislation would allow the use of
classified information against the alien when a summary
could not be provided, whereas CIPA prohibits the use of
classified information in such a circumstance. This use of
classified information, kept secret from an alien, would
violate the due process rights of aliens.
C. Recommendations
Section 601 of H.R. 1710 should be modified
substantially to track CIPA. If so modified, the alien would
receive a summary of
--------------------
22 The summary contemplated in Section 601 of H.R. 1710 does
not even meet this minimal CIPA standard. Under Section 601,
the summary would be approved if it was sufficient to inform
the alien of the "general nature" of the evidence and "to
permit the alien to prepare a defense." This is a far cry
from a summary that provides an alien with substantially the same
opportunity to make a defense as would the secret information.
16
the classified information the government sought to use
against the alien. The alien would have an opportunity to
challenge the adequacy of the summary. The summary would be
approved by the judge if the judge found that the summary
provided the alien with substantially the same opportunity
to defend in the deportation proceedings as would the
classified information. If approved, the summary would be
used by the judge to determine whether the alien is deport
able as a terrorist, and the classified information would
not be considered by the judge or be part of the record in
the proceedings. If no such summary could be provided, the
summary and the classified information would not be used in
the proceedings. In addition, proposed Section 508 would be
amended so that aliens facing deportation proceedings in the
special court would be held pending deportation proceedings
like other aliens who are a flight risk or a danger to the
community. Such an amended statute would be far more likely
to pass constitutional muster than would the current
proposal.
RESURRECTION OF MCCARRAN-WALTER ACT
A. Background
Section 611 of H.R. 1710 would, in principle, resurrect
the McCarran-Walter Act, repealed by Congress just a few
years ago after being ruled unconstitutional as applied to a
particular alien. It would render associations, without
more, grounds for exclusion under the Immigration and
Nationality Act because it would render excludable every
member of a "terrorist organization" designated by the
President. No analogous provision appears in H.R. 896.
Section D of the McCarran-Walter Act allowed, among
other things, for the deportation of aliens who "advocate
the economic, international and governmental doctrines of
world communism or the establishment in the United States of
a totalitarian dictatorship, or who are members of or
affiliated with any organization" that so advocates, "either
through its own utterances or through any written or printed
publications issued or published by or with the permission
or consent of or under the authority of such organization
... ." Section F(iii) allowed for the deportation of
"[a]liens who advocate or teach or who are members of or
affiliated with any organization that advocates or teaches
... the unlawful damage, injury or destruction of property."
The McCarran-Walter Act was used to exclude from the
United States persons on account of activities protected by
the First Amendment. Persons excluded have included Pierre
Trudeau, once the Prime Minister of Canada, and Canadian
naturalist Farley Mow at. People should be excluded from the
United States on account of their activities, not on account
of their political beliefs or their associations. Congress
repealed the McCarran-Walter Act a
17
few years ago and accepted the notion that aliens should be
excluded from the United States on account of their illegal
activities, not for engaging in activity that would be
protected by the First Amendment, if engaged in by a person
here.
B. Discussion
Under current law, a person who has engaged in
terrorism, or a person about whom a consular officer or the
Attorney General has a reasonable ground to believe is
likely to engage in any terrorism after entry, is already
excludable.23
Thus, under current law, a person who might actually
commit "terrorist activity" would be barred. The proposed
amendment is therefore not calculated to bar from the United
States such dangerous persons. Rather, it is calculated to
bar people from the United States merely on account of their
membership in an organization label led a "terrorist
organization" even if the person had never committed
terrorist activity, did not support terrorist activity, and
participated in or advocated only the legal activities of
the organization. In fact, it would bar entry to a member
who was attempting to turn the organization away from
violent activity, and who sought to come to the United
States for the express purpose of gathering support for that
position. The violent acts of others would be ascribed to
him or her merely on account of membership in the
organization. This is guilt by association in its purest
form.
Section 611 of H.R. 1710 would amend Section
212(a)(3)(B) of the Immigration and Nationality Act (8
U.S.C. 1182(a)(3)(B)) by rendering excludable any alien who:
"[I]s a representative of a terrorist organization or
... is a member of a terrorist organization"
designated by the President upon a finding that the
organization engages in or has engaged in terrorist activity
that threatens the security of the United States.
Section 611 of H.R. 1710 would roll back nearly two
decades of movement by Congress to bar people from the
United States on account of their illegal activities,
instead of on account of their associations and political
beliefs. It would re-introduce the notion of guilt by
association and render aliens deport able for associational
activity fully protected by the First Amendment.
--------------------
23 8 U.S.C. Section 1182(a)(3)(B)(i). Section 611 of H.R.
1710 would also render excludable not just an alien who has
engaged in terrorist activity, but an alien about whom there
is a reasonable ground to believe has engaged in terrorist
activity --a substantially lower standard.
18
Just last year, the Administration testified in
Congress against legislation that would bar from the United
States aliens based on their political beliefs and
affiliations. On February 23, 1994, Mary A. Ryan, Assistant
Secretary for Consular Affairs of the Department of State
testified that one could not presume that a member of a
group that engages in widespread social welfare programs was
a "terrorist" just because other members of the group engage
in objectionable violent activity.24 For that reason, the
Administration objected to proposed legislation that would
make mere membership in a "terrorist" organization a grounds
for exclusion.
Moreover, the provision is not limited to groups
currently engaged in terrorist activity but would operate to
bar entry to members of organizations that have ever engaged
in terrorist activity, even if today, the organization does
not engage in terrorist activity. Under this provision,
every member of the African National Congress would be
excludable from the United States on account of past
activity of the ANC which the U.S. government deemed
terrorist activity, notwithstanding the fact that the ANC is
the governing party in South Africa, and does not today
engage in terrorist activity as it is defined in the
statute.
This section would exclude from the United States
people who come merely to speak at conferences and
conventions, or to engage in other activity protected by the
First Amendment. Americans who invite them to come speak,
and who would like to hear them voice often controversial
points of view, have a First Amendment interest in hearing
what they have to say, and therefore in their entry into the
United States.
C. Recommendation
This proposed section should be struck altogether.
Absent this section, current law would still render
excludable aliens who have engaged in terrorist activity, or
about whom there is a reasonable ground to believe may
engage in terrorist activity after entry.
In lieu of striking the section altogether, an
amendment could be offered to apply the bar only to those
members of organizations currently engaged in terrorism
activity, and to ameliorate the effect of the provision on
activities that do not violate the Constitution. A similar
amendment was adopted in Section 901 of the Foreign
Relations Authorization Act for Fiscal Years 1988 and 1989
to limit the McCarran-Walter Act's negative effect on
activity
--------------------
24 Written Testimony of Mary A. Ryan, Assistant Secretary
for Consular Affairs, Department of State, Before the
Subcomm. on International Law, Immigration and Refugees of
the House Judiciary Comm., February 23, 1994, at 6-7.
19
protected by the Constitution. Such an amendment to 8 U.S.C.
Section 1182 could be:
"Notwithstanding any other provision of law, no alien
may be denied a visa or excluded from admission into
the United States because of any past, current or
expected beliefs, statements or associations which, if
engaged in or maintained by a U.S. citizen, would be
protected under the Constitution of the United States."
This would restrict the Secretary of State and the
Attorney General from barring from the United States people
merely on account of their First Amendment activity, or
other activity protected by the Constitution. Similar
language can be found in current law governing exclusion for
reasons of foreign policy.25 People who have, or about whom
there is a reasonable ground to believe may after entry,
engage in terrorism activity as it is defined in the statute
would still be excludable on account of that activity.
A similarly-worded amendment could be offered to 8
U.S.C. Section 1251 to make it clear that aliens could not
be deported from the United States merely on account of
activity protected by the Constitution.
FEDERALIZING STATE LAW AND
SELECTIVE PROSECUTION ON ACCOUNT OF POLITICAL BELIEFS
A. Background
Section 104 of H.R. 1710 (and the similar Section 101
of H.R. 896) would turn into federal "terrorism" crimes a
broad range of violent activity already proscribed by state
criminal law. These sections are so broad as to sweep in a
wide range of conduct, federalize many state laws, and
invite selective prosecution of unpopular groups for their
political beliefs.
Section 104 of H.R. 1710 would allow federal
prosecution of acts that transcend national boundaries and
violate state laws prohibiting killing, kidnapping, or
serious assaults, and property damage that creates a
substantial risk of serious bodily injury, if: (i) a
jurisdictional base could be met; and (ii) the Attorney
General certifies that the act, or any activity preparatory
to the act, or meant to conceal its commission, is terrorism
as broadly defined in Section 315 above. In other words, the
Attorney General would be called upon to certify that the
act was intended to achieve a political or social end by
intimidating a segment of the population or influencing a
government official.
--------------------
25 See, 8 U.S.C. Section 1182(a)(3)(C)(ii).
20
All of the activity described in this section is
already a crime under the laws of the states. However, H.R.
1710 would turn these state law crimes into federal crimes
when the Attorney General makes a non-reviewable
certification that the crime was politically motivated.
Having the government presume the political opinion and
motivation of an actor, in an unreviewable determination, is
fraught with risk to the First Amendment. 26
There is a risk that the Attorney General will make
this certification only when it is politically expedient to
do so because so many violent crimes would otherwise be
federalized. The Attorney General would be put in the
position of picking and choosing, based on an unreviewable
determination about the political motivation of the actor,
whether to prosecute such crimes as terrorist acts.
The Senate took a much preferable approach in the
corresponding Section 102 of the terrorism bill it approved
a few days ago, S.735. The Senate chose not to federalize
state laws. The Senate bill limits to certain federal
criminal law violations the class of crimes that would
become federal terrorism offenses upon the certification of
the Attorney General. Adoption of the Senate formulation
would in part remedy the problems identified above with
respect to H.R. 1710. However, it would still grant the
Attorney General non-reviewable authority to presume the
intent of the accused.
Section 105 of H.R. 1710 and the similar Section 102 of
H.R. 896 would create a new federal crime for conspiring in
the United States to (a) murder, kidnap, or maim outside of
the U.S.; or (b) damage property abroad that either belongs
to a government with which the U.S. is "at peace," or is a
railroad, canal, bridge, airport, airfield other public
structure or "religious, educational, or cultural property"
abroad. In either case, a predicate act to effect an object
of the conspiracy would have to occur in the U.S. These
sections are over broad and fraught with
the risk that they would be enforced only against
politically unpopular individuals and groups.
Under this legislation, the government could prosecute
as terrorists a group of veterans that planned to rescue a
comrade in post-war Vietnam if the rescue involved blowing
the lock off of a prison door. This is the kind of activity
swept up within the
--------------------
26 The corresponding section of H.R. 896, Section 101, would
sweep in even more conduct, opening the door even wider to
the possibility of selective prosecution. Under Section 104
of H.R. 1710, the property damage that could amount to
terrorism must create a substantial risk of serious bodily
injury to another person. No such limitation appears in
Section 101 of H.R. 896.
21
legislation, but unlikely to be prosecuted for political
reasons. Instead, this section would be enforced only
against unpopular groups and individuals.
C. Recommendation
Section 104 of H.R. 1710 should be amended by deleting
references to state law and substituting therefore the
pertinent sections of federal law, and the Attorney
General's certification should be replaced by a requirement
that the government prove the intent of the actor.
EXPANDING THE ROLE OF THE MILITARY IN LAW ENFORCEMENT
A. Background
The ACLU opposes increased participation by the
military in law enforcement. Section 312 of H.R. 1710
would authorize the Army, Navy, Air Force and Marines to
participate in a broad range of law enforcement activity,
including investigatory activity, upon request of the
Attorney General in cases involving "weapons of mass
destruction."
Except in certain narrowly defined circumstances,
current federal law prohibits use of the military "as a
posse comitatus or otherwise to execute the laws." 18 U.S.C.
Section 1385. This prohibition is linked to our tradition of
civilian control of the military and to a recognition of the
dangers posed by setting the military against our own
citizens. The Posse Comitatus Act grew out of southern
opposition to the use of the military for law enforcement
during Reconstruction, as well as concern about the use of
the military to suppress labor movements. Repressive,
authoritarian regimes have frequently employed their
militaries as law enforcers. In fact, the United States
recently sent troops to Haiti for the express purpose of
putting the Haitian military out of the business of
conducting civilian law enforcement activity. Congress
should strongly resist efforts to move the United States in
this direction.
B. Discussion
Section 312 of H.R 1710 would create a large exception
to the ban on military participation in law enforcement.
Section 312 would permit the Attorney General to request
"technical and logistical assistance" from the Secretary of
Defense in cases involving all weapons of mass destruction,
upon a certification by the Attorney General that:
(1) such assistance is needed to counter the threat
posed by such weapon or to enforce the criminal laws
relating to such weapons; and
22
(2) civilian law enforcement expertise is not available
to provide the required technical assistance.
Section 312 would leave "technical and logistical
assistance" undefined. However, such assistance would not
include the authority to apprehend and arrest any person.
This provision is loosely patterned on 18 U.S.C.
Section 831(e), which similarly permits the Attorney General
to call on the military for assistance in investigating
offenses involving nuclear materials, and the phrase
"technical and logistical assistance" sounds less
threatening than military participation in law enforcement.
Nevertheless, the ACLU believes that this provision expand
military participation too broadly.
First, it sets a lower threshold for military
involvement than does Section 831(e), or even the
corresponding Section 111 in H.R. 1635, the Administration's
proposal, both of which require a showing of an "emergency."
No emergency situation is required to justify military
involvement in civilian law enforcement under Section 312 of
H.R. 1710. In addition, under the nuclear provision in
existing law, the Attorney General must determine that
"civilian law enforcement personnel are not capable of
enforcing the law," whereas the proposed provisions permit
the Attorney General to involve the military in civilian law
enforcement relating to certain criminal activity whenever
"civilian law enforcement expertise is not available." At a
minimum, a determination of an emergency, and of necessity,
should be prerequisites to military participation in law
enforcement.
Second, it allows for military involvement not just in
chemical and biological weapons cases, as proposed in
Section 111 of H.R. 1-635, but in cases involving all
weapons of mass destruction. In addition to chemical and
biological weapons, such weapons include guns (other than
shotguns) with a bore of more than one-half inch in diameter
that can expel a projectile by action of an explosive or
propellant. 27
Third, it allows for the provision by the military of
not just "technical assistance" as would be the case under
Section 111 of H.R. 1635, but of both "technical" and
"logistical" assistance.
Fourth, it leaves the terms "technical" and
"logistical" assistance entirely undefined, opening the door
to potential military involvement in a wide range of
activity.
Even the definition of technical assistance offered in
H.R. 1635 is troublesomely vague and potentially quite expansive.
--------------------
27 18 U.S.C. Section 921(a)(4)(B).
Although authority to apprehend and arrest is expressly
denied, almost any other conduct may fit within the
definition. Technical assistance includes any "provision of
equipment and technical expertise," and that latter term is
not defined. Acting Assistant Attorney General Mark us told
the Senate Judiciary Committee that an identical provision
in a Senate bill:
. . . would authorize the military . . . to provide
equipment and personnel to assist in investigating,
searching, collecting and analyzing evidence concerning
the criminal use of biological or chemical weapons, and
to assist in disarming or disabling those in control of
chemical or biological weapons.
This is much more than technical assistance. The idea of the
military actively participating in searches and
investigations raises the fear cited by Sen. Nunn -- the
military is not trained to act "in accordance with due
process and civil procedures."
Concerns about the scope of "technical and logistical
assistance" in Section 312 are heightened by the fact that
the military is already permitted by statute to provide true
technical assistance and logistical assistance to civilian
law enforcement. 10 U.S.C. Sections 371 et seq. permit the
military to provide civilian law enforcement officials with
relevant information (section 371), to make military
equipment and facilities available to them (section 372), to
train them in the operation and maintenance of equipment
(section 373(a)), and to provide them with other "expert
advice." Under the circumstances, the "technical assistance"
contemplated by Section 312 must be intended to authorize
much more active participation by the military in criminal
investigations.
The ACLU might not object to a truly narrowly tailored
posse comitatus exception for cases involving chemical -and
biological weapons. There may be true "emergency situations"
in which civilian law enforcement authorities are incapable
of enforcing the law and in which it might be acceptable to
permit experienced military personnel to handle and disable
chemical and biological warfare agents. The statutory
exceptions proposed in Section 312 go far beyond this,
however.
C. Recommendation
The military should not be granted such expansive
criminal investigative authority. As Senator Sam Nunn has
noted, "the military is not trained for law enforcement.
They are trained to search and destroy using massive
military force, not detect and investigate and arrest in
accordance with due process and civil procedures."
24
In addition, ACLU believes that Congress should take
the opportunity presented by the recent focus on this issue
to reexamine existing law and further proscribe military
involvement in domestic law enforcement activities. In
addition to the narrow nuclear materials exception discussed
above, statutory permission for military participation in
criminal investigations can be found in 18 U.S.C. sec. 351
(concerning assassination, kidnapping, or assault on members
of Congress, the Cabinet, and Supreme Court Justices), 18
U.S.C. sec. 1116 (concerning the killing of foreign
officials, official guests, and internationally protected
persons), and 18 U.S.C. sec. 1751 (concerning assassination,
kidnapping, or assault on the President, Vice President, and
presidential staff). When investigating violations of these
sections, the Attorney General is authorized to call in the
Army, Navy and Air Force without any restrictions. 18 U.S.C.
sec. 374 authorizes military personnel to operate equipment
for specific purposes to support criminal law enforcement in
connection with violations of certain specified statutes. In
addition, 10 U.S.C. Sections 331-33 permit the President to
call in the military to suppress an insurrection against a
State government or a rebellion against the United States or
to enforce federal authority.
OPENING CONFIDENTIAL INS FILES FOR LAW ENFORCEMENT PURPOSES
A. Backqround
In 1986, at the same time it adopted employer
sanctions, Congress in the Immigration Reform and Control
Act of 1986 enacted a general amnesty for aliens who had
lived in the United States out-of-status for a certain
number of years. Likewise, it granted certain Special
Agricultural Workers (SAW's) the right to apply to remain
permanently in the United States. To encourage these people
to come forward and register for the general amnesty,
Congress included a provision in the legislation it adopted
to prohibit use of the information it collected through the
amnesty and SAW programs for other purposes. Without this
statutory assurance, many aliens would not have come forward
to register, for this relief, granted by Congress upon a
promise of confidentiality.
B. Discussion
Section 631 of H.R. 1710 (as well as Section 203 of
H.R. 896) would breach that promise of confidentiality. It
throw open to law enforcement officials the photographs,
fingerprints, addresses, receipts, and confidential letters
from ministers, neighbors and friends submitted upon a
statutory promise of confidentiality by an alien to show
long term continuous presence in the United States. These
documents could be used for any criminal law enforcement
purpose against the alien if the alleged criminal activity
occurred after the application was filed and was
prosecutable as an
25
aggravated felony, but with out regard to the length of the
sentence that could be imposed.
These documents were submitted on a confidential basis
and upon a statutory promise that they would be used for no
other purpose but the amnesty and SAW programs. Time and
again, advocates whom the Immigration and Naturalization
Service encouraged to help aliens prepare applications for
the amnesty and SAW programs assured fearful aliens that the
information they submitted would be used only to assess
their eligibility to participate in those programs. The
statute promised confidentiality. Had the government wanted
to use the information submitted in the amnesty and SAW
programs for law enforcement purposes, it need not have
promised confidentiality on a blanket basis. Those who
submitted these documents have a privacy interest in the
documents. Moreover, for Congress now to renege on this
promise of confidentiality would be to hinder the INS from
conducting any similar program in the future, and indeed
from conducting any immigration program in which cooperation
of an alien would be secured by a promise of
confidentiality.
This is yet another instance pointing up the fact that
this bill, though purportedly made necessary by the bombing
in Oklahoma City, is full of proposals unrelated to the
bombing. First, the bombing did not involve aliens at all.
Second, the proposed section 304 would not limit the breach
in the promise of confidentiality to investigations of
terrorism activity as defined in the bill, but would rather
reach to all investigation of any serious crime allegedly
committed by the applicant. Again, information submitted or
retained to carry out one government program is sought for
another purpose. It is this very kind of information
cross-use that is at the heart of the threat to the right of
privacy in the United States.
C. Recommendation
Section 304 should be deleted in its entirety.
OTHER PROVISION TARGETING ALIENS
A. Backqround
While the recent bombing in Oklahoma City is repeatedly
cited as a justification for this and other terrorism
legislation, many sections of this legislation are simply
unrelated to that incident, allegedly perpetrated by a U.S.
citizen. Sections 621, 622, and 623 of H.R. 1710, are three
such sections. Section 621 would provide for expedited
exclusion of aliens who arrive in the United States without
valid travel documents or visas; Section 622 would prohibit
judicial review of certain orders of deportation; and
Section 623 would purport to strip due process rights of
aliens in
26
the United States who entered without inspection by
subjecting them to exclusion, instead of deportation
proceedings.
B. Discussion
These provisions have nothing whatsoever to do with the
recent bombing in Oklahoma City, or with terrorism. Section
621 would establish a system making it extremely difficult
for a refugee fleeing persecution but bearing no travel
documents to obtain protection against persecution. Under
Section 621, an alien who arrives at a U.S. port of entry
without a passport or other travel document, or without a
valid visa when required to have one, would be put into
expedited deportation proceedings. In order to be admitted,
they would have to indicate an intention to apply for
political asylum, and establish, in the airport, on the
spot, after a lengthy journey, likely without access to
counsel or to documentary evidence, that they have a
credible fear of persecution. It is not uncommon for
legitimate refugees to arrive without adequate travel
documentation. Few refugees, exhausted after a long trip and
fleeing their persecutors, are likely to be able to make
this showing even if they indeed qualify as refugees. If
they fail to make the showing, they would be excluded. The
ACLU believes this process entirely inadequate to protect
those fleeing persecution. People who receive a parking
ticket are entitled to more procedural protections than
envisioned under this section.
Section 622 would bar judicial review of certain
activities of the INS that are contrary to law. It would
strip courts of jurisdiction to entertain class action suits
brought to ensure that INS practices conform with
Congressional mandates.
Section 623 is particularly troubling. It would make
excludable, rather than deport able, aliens who are in the
United States, but who entered without inspection. Under
current law, an alien who has effected an entry --
regardless of how this was done -- is deport able, not
excludable. An alien has effected an entry when the alien is
either: (i) physically present and inspected or admitted; or
(ii) has actually and intentionally evaded,inspection and is
not under restraint.
An alien in deportation proceedings is protected by the
Fifth Amendment right to due process. The government bears
the burden of proving that the alien is deport able by
clear, convincing and unequivocal evidence. In contrast, in
exclusion proceedings involving a non-permanent resident, an
alien has only the rights statutorily provided by Congress.
In a deportation proceeding, the INS bears the burden of
proving the subject of the proceeding is an alien, and then
the alien bears the burden of proving a lawful entry, and if
he or she does so, the INS bears the burden of proving the
alien is deport able. In contrast, the alien in exclusion
proceedings bears the burden of showing that he or she is
admissible. The proposed section of law is in fact an
attempt to
27
subject aliens who have entered without inspection to this
higher burden, and to strip such aliens of the due process
rights guaranteed in the United States to all persons here.
ACLU hopes to submit to the Committee further
supplementary analysis of these provisions.
C. Recommendation
Because these provisions have nothing to do with
responding to terrorism or to Oklahoma City, ACLU urges that
they be deleted from this legislation.
PROPOSED EXPANSION OF ELECTRONIC SURVEILLANCE AUTHORITY
A. Backqround
Both H.R. 1710 and H.R. 1635 seek to expand statutory
authority to conduct wiretaps and other forms of electronic
surveillance. They would expand the list of felony
investigations in which an electronic surveillance order
could be sought, expand the authority to conduct roving
wiretaps and wiretaps without a court order, and permit the
admission of evidence obtained from unlawful electronic
surveillance.
The ACLU opposes virtually all of these provisions.
Electronic surveillance is a particularly intrusive
investigatory technique, subject to the search and seizure
requirements of the Fourth Amendment. Katz v. United
States, 389 U.S. 347 (1967). Wiretaps should be authorized
therefore only in the most serious cases and subject to the
most stringent protections. The proposed expansions of
wiretap authority sweep far too broadly and, in at least
some instances, probably run afoul of the Constitution.
Equally important, such expanded authority is quite
unnecessary. Virtually all federal felonies char act,eristic
of terrorism, including those that would likely form the
basis for the Oklahoma City prosecution, are already on the
list of felony investigations for which an electronic
surveillance order may be sought. Yet the FBI has very
rarely used wiretaps in investigations of arson, bombings,
or firearms violations. Out of 8,800 wiretaps applications
filed by federal and state authorities between 1983 and
1993, only 16, less than 0.2%, were for arson, bombing, or
firearms. The last known request in such a case was filed in
1988. Congress should not be considering expanding
federal wiretap authority, when the FBI is not using the
authority that currently exists.
28
B. Discussion
i. Expanding the criminal investigations in which an
electronic surveillance order may be sought
Current federal law prohibits the interception of
oral,28 wire, 29 and electronic communications, 30 except as
specifically provided. 18 U.S.C. sec. 2511. In order to
conduct electronic surveillance, the FBI or other law
enforcement authority must obtain a court order based upon
probable cause. Federal law enforcers may obtain a court
order for interception of oral or wire communications only
in connection with investigations of certain specified
federal offenses. The current list of federal offenses that
may support an electronic surveillance order covers several
pages in the U.S. Code Annotated and already includes
virtually every felony that might be committed by
terrorists, including all federal offenses involving murder,
kidnapping, robbery, or extortion; espionage, sabotage,
piracy, and treason; assassination and hostage-taking;
destruction of trains, vessels, aircraft, and aircraft
facilities; and offenses involving explosives, biological
weapons, and nuclear materials. See 18 U.S.C. sec. 2516.
Section 301 of H.R. 1710 would expand this list of
offenses that will support a court application for
electronic eavesdropping or wiretapping. Section 106 of H.R.
1635 would permit any federal felony to support an order for
a wiretap or electronic listening device if the Justice
Department certifies that "there is reason to believe the
felony involves or may involve domestic terrorism or
international terrorism."
The ACLU opposes either method of expanding the list of
felonies that will support an electronic surveillance order.
There has been no showing that any additional authority is
needed or that the FBI has ever failed to obtain a desired
wiretap because a particular predicate felony was not on the
list. In fact, as discussed earlier, the FBI rarely if ever
invokes most of the wiretap authority it already possesses.
Of the 8,800 electronic
--------------------
28 it "' Oral communication' means any oral communication
uttered by a person exhibiting an expectation that such
communication is not subject ~o interception under
circumstances justifying such expectation," 18 U.S.C. sec.
2510(1).
29 A "wire communication" is "any aural transfer made in
whole or in part through the use of facilities for the
transmission of Communications by the aid of wire, cable, or
other like connection," Id., sec. 2510(2).
30 An "electronic communication" is "any transfer of signs,
signals writing, images, sounds, data, or intelligence of
any nature transmitted in whole or in part by a wire, radio,
electromagnetic, photo electronic or photo optical system,"
that is not an oral or wire communication. Id., sec.
251-0(12).
29
surveillance applications filed between 1983 and 1993, over
three quarters concerned suspected violations of drug and
gambling laws. Most of the rest involved racketeering
investigations. Not once since 1988 has the FBI reported
seeking electronic surveillance authority in a case
involving bombing, arson, or firearms.
Because bugging and wiretapping are particularly
intrusive investigatory techniques that undermine the
personal privacy we all cherish, they should be permitted
only when investigating the most serious crimes. The
government has made no showing of need for this additional
authority, let alone a showing that its need for more
wiretaps outweighs the threat to privacy such expanded
authority would pose.
The ACLU is especially concerned by the proposal in
H.R. 1635 to expand wiretap authority whenever the Justice
Department certifies that "there is reason to believe the
felony involves or may involve domestic terrorism or
international terrorism." First, such a provision would
weaken the probable cause standard for obtaining an
electronic surveillance order. Right now, before issuing
such an order, a judge must first determine that there is
probable cause to believe "that an individual is committing,
has committed, or is about to commit a particular offense
enumerated in section 2516" and also probable cause to
believe that "particular communications concerning that
offense will be obtained through such interception.1'3l
Because the Justice Department "terrorism" certification
would not be subject to judicial review, the court would
make no determination that it was supported by probable
cause, and therefore will be unable to make a true probable
cause determination about whether the subject of the
surveillance is connected to an enumerated offense.
Equally important, we are deeply concerned by the idea
that the Attorney General can evade statutory limits on
investigations simply by invoking the frightening specter of
terrorism. Civil liberties are often compromised in times of
fear. During World War II, fear of domestic terrorism led to
the unjustifiable internment of many thousands of American
citizens of Japanese heritage. Fear of the communist threat
led to the unconstitutional excesses of the House
Un-American Activities Committee in the McCarthy Era and the
unlawful Cointelpro surveillance and infiltration of
peaceful political protest groups in more recent times.
Given this history, we must vigorously oppose any
legislation that permits an assertion of "terrorism" to
override statutory protections.
ii. Expanding authority for emergency wiretaps
Section 308 of H.R. 1710 seeks to expand authority to
conduct
--------------------
31 18 U.S.C. Section 2518(3).
30
emergency wiretaps without court authorization. 32 The ACLU
opposesthis provision as unnecessary, open ended, and
possibly unconstitutional.
Under current law, law enforcement officials can, under
certain circumstances, set up emergency electronic
surveillance without a court order. Specifically, 18 U.S.C.
Section 2518(7) authorizes an emergency wiretap if a law
enforcement official determines that
(A) an emergency situation exists that involves--
(i) immediate danger of death or serious physical
injury to any person,
(ii) conspiratorial activities threatening the national
security interest, or
(iii) conspiratorial activities characteristic of
Organized Crime
and the official believes that there are sufficient grounds
for a court to issue a wiretap order. 33
Section 308 would create a new category of "emergency
situations" to include conspiratorial activities involving
domestic terrorism or international terrorism, as broadly
defined (see discussion above.)
Such an expansion of emergency wiretap authority is
unnecessary. If there is either an immediate danger of death
or serious physical injury or a threat to our national
security interests, an emergency wiretap can be obtained
under current law. No showing has been made that there are
cases of terrorism involving neither an immediate threat to
persons or a threat to our national interests that
nevertheless justify a warrant less wiretap. Given that only
sixteen wiretaps concerning arson, bombings, and firearms
have been sought in the past twelve years, it seems highly
unlikely that there can be many, if any, cases falling into
this category.
In addition, the proposed definition of "domestic
terrorism" in H.R. 1710 Section 315 makes this emergency
wiretap proposal even more open ended. Virtually any violent
act can be described as "coercing a segment of the
population." Therefore, "conspiratorial activities involving
domestic terrorism" sufficient to trigger an
--------------------
32 The Senate decisively rejected an amendment to its
terrorism bill that would have granted this additional
authority to conduct a wiretap without first obtaining a
court order.
33 After establishing the emergency wiretap, the law
enforcement official must apply for an order approving the
interception within 48 hours. Id.
31
emergency wiretap could be almost any information about the
possible commission of a violent act, if the act "appeared"
to be intended to achieve "political or social ends." The
narrow emergency wiretap exception would threaten to
overwhelm the rule requiring a prior court order.
Finally, we believe that there are serious doubts about
the constitutionality of the proposal. As noted earlier, the
Supreme Court has determined that electronic surveillance is
subject to the requirements of the Fourth Amendment. Katz v.
United States, 389 U.S. 347 (1967); Berqer v. New York, 388
U.S. 41 (1967). Under the Fourth Amendment, a warrant is
generally required before law enforcement personnel can
conduct a search or seizure. The Supreme Court has
recognized certain exigent circumstances under which a
search or seizure can be conducted without a warrant.
Immediate danger of death or serious bodily injury or a
threat to national security may be a sufficiently exigent
circumstance to justify a warrant less wiretap. In the
absence of a threat to persons or the national interest,
however, it is hard to imagine what "emergency" exists that
would justify carrying out a Fourth Amendment search and
seizure without court authorization. Congress should
therefore tread very carefully in this area and we urge that
the House, like the Senate did, reject this expansion of
wiretap authority.
iii. Expanding authority for roving wiretaps
Section 309 of H.R. 1710 seeks to expand authority to
conduct "roving" wiretaps of wire and electronic
communications. The proposal is likely unconstitutional and
should be rejected.
The Fourth Amendment requires that a warrant, to be
valid, must "particularly describ[e] the place to be
searched and the persons or things to be seized." In
conformity with this constitutional command, 18 U.S.C.
Section 2518 generally requires that each electronic
surveillance application and order contain "a particular
description of the nature and location of the facilities
from which or the place where the communication is to be
intercepted." 18 U.S.C. Section 2518(1)(b)(ii);
id.(3)(d). Subsection 11 contains two exceptions to this
requirement. For interception of oral communications,
section 2518(11)(a) forgoes this particular place
requirement if "specification is not practical." However,
for interceptions of electronic and wire communications,
Section 2518(11)(b) requires a showing that the person whose
communications are to be intercepted has the purpose "to
thwart interception by changing facilities." H.R. 1710 would
adopt the lesser standard that currently applies to roving
bugs for roving wiretaps.
The ACLU is concerned that roving wiretaps, to a far
greater extent than roving bugs, would result in the
inevitable interception of many innocent communications by
persons other than
32
the subject of the order. H.R. 1710 would grant the FBI the
authority to wiretap all of the phones that might be used by
their target. This threatens the privacy of all other
persons who would use those phone, which cannot be justified
without some showing of necessity.
More importantly, this provision of H.R. 1710 is in all
probability unconstitutional. Courts upholding the
constitutionality of the roving wiretap provisions of
Section 2518(11) have stressed the intent to thwart as a
justification for the lack of particularity. See, e.g.,
United States v. Silverman, 732 F.Supp. 1057 (S.D.Cal.
1990), aff'd in relevant part, United States v. Petti, 973
F.2d 1441 (9th Cir. 1992). More importantly, courts
upholding the roving exception for electronic bugs have
emphasized the fact that the "impracticality" of
specification was caused by the target's efforts to thwart
interception. See, e.q., United States v. Bianco, 998 F.2d
1112 (2d Cir. 1993). Absent an effort to thwart
interception, it seems highly unlikely that an
unparticularized order would pass muster. Congress should
reject this provision as well.
iv. Admitting evidence from unlawful wiretaps
H.R. 1710 also proposes an unconstitutional abandonment
of the Fourth Amendment as it applies to electronic
surveillance. At present, 18 U.S.C. Section 2515 codifies
the constitutional requirement that information obtained
from an unlawful search and seizure may not be introduced as
evidence in court. It bars the admission of evidence derived
from an unlawful wiretap or electronic bugging device in any
judicial, legislative, or regulatory proceeding.
The Section 306 of H.R. 1710, like Section 105 of H.R.
1635, would rip a gaping hole in this statutory exclusionary
rule. It would amend 18 U.S.C. Section 2515 to provide that
the requirement that evidence be excluded "shall not apply
to the disclosure by the United States in a criminal trial
or hearing or before a grand jury of the contents of a wire
or oral communication, or evidence derived therefrom, unless
the violation of this chapter involved bad faith by law
enforcement."
No explanation has been offered by the FBI to show why
it purports to need this new authority to use illegally
obtained evidence. It certainly cannot have anything to do
with the need to combat terrorism, the ostensible purpose
for this legislation, given the paucity of requests for
wiretapping authorization in such cases over the past ten
years.
In the ACLU's view, this section is unconstitutional.
Although the Supreme Court has in recent years announced
certain limitations on the exclusionary rule for evidence
obtained in
33
violation of the Fourth Amendment, the blanket exemption for
law enforcement malfeasance found in Section 306 goes far
beyond anything permitted by the Supreme Court. In United
States v. Leon, 468 U.S. 897 (1984), the Supreme Court
permitted the introduction of evidence derived from an
unconstitutional search undertaken in good faith reliance on
a defective search warrant. Similarly, earlier this term in
Arizona v. Evans, 63 U.S.L.W. 4179 (March 1, 1995), the
Supreme Court held that the exclusionary rule did not apply
to an unlawful search based upon a reasonable, but mistaken,
good faith belief that a warrant was outstanding.
To date, however, the Supreme Court has continued to
adhere to the exclusionary rule in cases involving warrant
less searches; yet Section 306 of H.R. 1710 would authorize
the admission of evidence from an unconstitutional search,
even if no court authorization had ever been sought.
Likewise, in the two cases cited above, the Supreme Court
limited the exclusionary rule in cases where law enforcement
officers could demonstrate that they had acted in good
faith;34 this section would reverse the presumption and
admit evidence unless the defendant can prove that the
officers acted in bad faith. Evidence of the circumstances
of the unconstitutional search and seizure will inevitably
be in the possession of the officers, and it will be
extremely difficult for a defendant to establish that they
acted with an improper motive. Thus law enforcement
officials will be given an incentive to operate close to the
constitutional margin in conducting wiretaps on the theory
that, even if their actions are unconstitutional, frequently
they will nevertheless be able to use the evidence in court.
This is precisely the reverse of the incentives for
conscientious, constitutional behavior that the exclusionary
rule was designed to evoke. For both these reasons -- the
extension of an exclusionary rule exception to warrant less
searches and the conversion of a good faith exception into a
requirement of a bad faith showing -- we expect that the
courts will reject this provision as unconstitutional. It
would be far better for the House to itself reject this
unconstitutional legislation, especially as it has nothing
to do with the counter terrorism purpose of H.R. 1710.
C. Recommendation
ACLU believes that none of these dangerous proposals
should be adopted. Instead of adopting proposals to expand
wiretap authority found in H.R. 1710, Congress might
consider ordering a study and report on electronic
surveillance. Such a study should consider the infrequent
request for electronic surveillance in anti terrorism
investigations and solicit input from civil liberties groups
about
--------------------
34 In one case the officers relied upon what appeared to be
a valid search warrant, while in the other case they relied
on an erroneous report in a police com~uter that a valid
warrant had
been issued and remained outstanding.
34
ways in which necessary investigations can be conducted
consistent with our constitutional liberties.
PROPOSED EXPANSION OF COUNTERINTELLIGENCE INVESTIGATIONS
A. Backqround
The foregoing provisions all relate to governmental
authority to conduct investigations of potential violations
of criminal law - past, present, or future. Other provisions
of both H.R. 1710 and H.R. 1685 seek to expand federal
authority to conduct investigations of persons in this
country for purposes other than crime prevention, detection,
and prosecution. The federal government asserts authority to
conduct "counterintelligence investigations" as an aspect of
the executive power to protect national security. Without
identifying a potential violation of law, the Executive
claims the power to investigate U.S. citizens to prevent
foreign intelligence activities and identify persons acting
as agents of a foreign power.
Most foreign intelligence operations that could be
conducted within the United States, as well as most acts of
international terrorism, violate provisions of U.S. criminal
law and could give rise to a lawful criminal investigation.
Nevertheless, law enforcement asserts that it needs to be
able to conduct noncriminal counterintelligence
investigations under a national security rationale. Both
H.R. 1710 and H.R. 1635 seek to expand the statutory
authority to employ various investigative techniques in such
noncriminal, counterintelligence investigations.
The ACLU opposes the investigation of persons in this
country without a criminal basis and believes that such
investigations are generally unconstitutional infringements
on individual liberty. The additional investigatory powers
sought for counterintelligence investigations in both bills
are already available to law enforcement authorities
conducting criminal investigations. We therefore oppose
expanded authority to carry out counterintelligence
investigations in order to discourage any increased use of
these practices, which are essentially unrestrained by law.
Before turning to the specific powers sought, we note
once again that these legislative proposals have nothing to
do with the recent tragedy in Oklahoma City. The
investigations into the bombing of the Alfred P. Murrah
building presumably are all criminal investigations, subject
to the laws and guidelines for such investigations, not the
separate provisions relating to counterintelligence
activities. Federal authorities already possess all of the
investigatory powers they need to thoroughly investigate the
Oklahoma City bombing. The provisions discussed below merely
seek to extend these powers to noncriminal
35
investigations, that have nothing to do with the bombing in
Oklahoma City.
B. Discussion
i. Expanding authority to use pen registers and trap
and trace devices in counterintelligence investigations
Section 302 of H.R. 1710 (like Section 101 of H.R.
1635) seeks to expand the permissible uses of and lower the
showing required to obtain authorization to utilize a pen
register or a trap and trace device in a counterintelligence
investigation. A pen register is a "device which records or
decodes electronic or other impulses which identify the
numbers dialed or otherwise transmitted on the telephone
line to which such device is attached," 18 U.S.C. Section
3127(3), i.e., it records the telephone numbers of outgoing
calls. Conversely, a trap and trace device is "a device
which captures the incoming electronic or other impulses
which identify the originating number of an instrument or
device from which a wire or electronic communication was
transmitted," 18 U.S.C. Section 3127(4), like a Caller I.D.
device.
Under current law, the government may obtain a court
order authorizing the installation and use of a pen register
or trap and trace device by submitting an application that
includes a certification that "the information likely to be
obtained is relevant to an ongoing criminal investigation"
being conducted by the requesting law enforcement agency. 18
U.S.C. Sections 3122-23. However, in order to obtain
authorization for a pen register or trap and trace device in
a counterintelligence investigation, it appears35 that the
government must satisfy the requirements for issuance of a
court order under the Foreign Intelligence Surveillance Act
(FISA), 50 U.S.C. Sections 1801 et seq. The applicant must
establish by probable cause that (1) "the target of the
electronic surveillance is a foreign power or an agent of a
foreign power" and (2) "each of the facilities at which the
electronic surveillance is directed is being used, or is
about to be used, by a foreign power or an agent of a
foreign power." 50 U.S.C. Section 1805(3). In addition, the
application must certify that the purpose of the
surveillance is to obtain foreign intelligence information
and that the information cannot be obtained by normal
investigative techniques. 50 U.S.C. Section 1804(a)(7).
Finally, FISA requires the use of "minimization procedures,"
that is, specific procedures designed to "minimize the
acquisition and retention, and prohibit the dissemination,
of
35. Pen registers and trap and trace devices are not
expressly Mentioned in the Foreign Intelligence Surveillance
Act. Because ~hey involve the interception of an electronic
communication, they appear to be subject to the Act's general
requirements for electronic surveillance orders.
36
nonpublicly available information concerning unconsenting
United States persons." 50 U.S.C. Section 1801(h)(1).
Section 302 of H.R. 1710 would replace the showing
required under FISA with one similar to that required in a
criminal investigation. Specifically, Section 302 would
authorize the installation and use of a pen register or trap
and trace device upon a certification that "the information
likely to be obtained is relevant to an ongoing foreign
counterintelligence investigation. 1136 This change would
not simply reduce the showing required to utilize these
devices in a counterintelligence investigation. More
importantly, this change would appear to permit, for the
first time, the federal government in counterintelligence
investigations to employ pen registers and trap and trace
devices against United States persons who are not themselves
suspected of being agents of a foreign power.
As noted earlier, virtually all foreign intelligence
activities potentially violate one or more federal criminal
laws. It should therefore not be difficult, in an
appropriate case, to open a criminal investigation and
obtain authorization for pen registers and trap and trace
devices under existing 18 U.S.C. sec. 3123. If the FBI
insists on proceeding through a counterintelligence
investigation, it should be required to make the heightened
showing required by FISA before utilizing such devices. The
House should reject this proposal.
ii. Granting authority to compel production of
sensitive consumer information in counterintelligence
investigations
Section 303 of H.R. 1710 and Section 102 in H.R. 1635
seek for law enforcement authority to compel consumer
reporting agencies to disclose sensitive consumer
information in connection with counterintelligence
investigations. They would amend the Fair Credit Reporting
Act, 15 U.S.C. sec. 1681 et seq., in a number of ways. They
would require a consumer reporting agency to disclose a
consumer's name, address, former addresses, current.and
former places of employment, and the names of all financial
institutions at which the consumer maintains or has
maintained an account, upon a written request from the FBI
that certifies that the "information is necessary for the
conduct of an authorized foreign counterintelligence
investigation" and that there are specific and articulable
facts giving reason to believe that the consumer is an agent
of a foreign power engaged in international terrorism or
36. Curiously, the section as revised apparently
contemplates that state law enforcement officials would
conduct thier own foreign counterintelligence operations,
and similarly grants them the opportunity to use pen
registers and trap and trace devices in such state
investigations.
37
clandestine intelligence activities or that the consumer is
about to be in contact with a foreign power or its agent. In
addition, both bills would authorize the FBI to obtain
consumer credit reports by means of an ex parte court order
issued upon a similar in camera showing. Both bills would
also prohibit consumer reporting agencies from informing the
consumer of these compelled disclosures and would limit the
remedies available for violations of the consumer's rights.
Again, the proposed changes should be rejected as
ill-advised and unnecessary. If the FBI is in a position to
make a representation that a person is an agent of a foreign
power engaged in international terrorism or clandestine
intelligence activities in violation of the laws of the
United States, then the FBI has the "reasonable indication"
necessary under its guidelines to open a criminal
investigation. The Fair Credit Reporting Act already
authorizes consumer reporting agencies to disclose consumer
reports "[i]n response to the order of a court." 15 U.S.C.
sec. 1681b(1). Thus the FBI can obtain all of the desired
records by opening a criminal investigation and issuing
grand jury subpoenas or comparable court orders. It does not
make sense to establish a separate, counterintelligence
process for obtaining this information which is more
insulated from court review (37).
Again, this expanded authority has nothing to do with
the FBI's ability to investigate the Oklahoma City bombing
or similar acts of domestic terrorism. Those are criminal
acts that may properly be investigated as crimes, with all
of the investigatory tools there available to law
enforcement, as well as the protections for violations of
individual rights.
iii. Granting authority to compel production of common
carrier and public accommodations records in
counterintelligence investigations
Both Section 304 of H.R. 1710 and Section 104 of H.R.
1635 seek to authorize the FBI to gain access to common
carrier and public accommodations records in foreign
counterintelligence investigations. These provisions violate
the principle that the
government should be obliged to abide by criminal investigatory
processes when investigating persons within its borders.
37. The Administration has sou~qht to justify this
change by analogy to 12 U.S.C. sec. 3414(a)( )(A), which
establishes a similar procedure for obtaininq records
protected under the Right to Financial Privacy Act. While
there are obviously some
parallels between financial records and consumer credit
records, the ACLU submits that the appropriate response, if
any, is to repeal the special national security process for
obtaining financial records.
38
Section 304 of H.R. 1710 applies to the records of
common carriers, public accommodation facilities, physical
storage facilities, and vehicle rental facilities. It would
require such entities to comply with an FBI request for
records so long as the FBI certifies in writing that the
records are sought for foreign counterintelligence purposes
and that there are specific and articulable facts giving
reason to believe that the person to whom the records
pertain is a foreign power or an agent of a foreign power.
Section 304 sweeps up a broad assortment of records
without any showing that such broad authority is necessary
and it fails to establish a procedure to challenge an over
broad or otherwise unreasonable or improper request for
records.
This problem is minor compared to the larger problem:
the proposal represents an unwise and unnecessary expansion
of the FBI's power to conduct noncriminal investigations.
All of these records can easily be obtained by grand jury
subpoena in a lawful criminal investigation. No showing has
been made that the grand jury process is somehow inadequate
to meet legitimate law enforcement needs in investigating
the Oklahoma City bombing or other terrorist acts. Congress
should insist that the FBI employ that process to obtain
records on the activities of U.S. persons; the FBI should be
deterred from conducting more investigations without a
criminal predicate.
iv. Expanding authority to obtain telephone billing
records in counterintelligence investigations
Section 310 of H.R. 1710 and Section 109 of H.R. 1635
seek to increase the federal government's ability to compel
disclosure of telephone toll and transactional records in
counterintelligence investigations. 18 U.S.C. Section 2709
currently authorizes the FBI to obtain "subscriber
information and toll billing records information, or
electronic communication transactional records" from a wire
or electronic communication service provider in connection
with a counterintelligence investigation in,accordance with
procedures therein specified. Apparently an issue has arisen
about whether "toll billing records" include records of
local telephone usage or only long-distance services.
Section 310 would modify section 2709 to make it clear it
applies to both "local and long distance toll billing
records."
The ACLU does not perceive a meaningful difference
between local and long distance toll billing records that
would justify differential treatment. Nevertheless, for the
reasons we have repeatedly identified in this discussion, we
must oppose this change as well. The FBI and other law
enforcement agencies are perfectly able to obtain both local
and long distance records by subpoena in a proper criminal
investigation. Rather that expanding the FBI's powers to
conduct unreviewable counterintelligence
39
investigations essentially unrestrained by law, Congress
should be considering repeal of section 2709 so as to
encourage the FBI to conduct its investigations through the
criminal process.
C. Recommendation
We urge Congress to reject each of these proposals to
conduct intrusive investigatory activity without a criminal
predicate. People in the United States understand that when
there is evidence of crime, the FBI should investigate, and
focus its investigation on the possible perpetrators of
crime. They become uneasy, however, when authority to
conduct intrusive investigatory activity is requested in
cases outside of this sphere of criminal investigations. The
bombing in Oklahoma City, which is a crime, should not be
used as an excuse to give the FBI more tools and authority
to investigate activity that is not a crime.
FORCING PRIVATE INDUSTRY TO FACILITATE SPYING ON ITS
CUSTOMERS
A. Backqround
Sections 401 and 40Z of H.R. 1710 would amend the
Communications Assistance for Law Enforcement Act by
creating a funding mechanism for the costs of retrofitting
the telephone system in the United States to enhance the
ability of law enforcement officials to wiretap telephones
of American citizens.
B. Discussion
The above-referenced digital wiretapping law is
extremely troubling. Congress required phone companies to
re-build switching devices to enhance the ability of the FBI
to wiretap. Under this profoundly troubling logic, Congress
could similarly require home builders to include listening
devices in the walls of the houses and apartment buildings
they construct so that the FBI could turn on the microphones
if one day it needed to do so. This idea was wrong when
adopted, and it would be wrong to fund that idea program
today, particularly in light of the distrust of government
exposed in the wake of the tragedy in Oklahoma City.
C. Recommendation
Sections 401 and 402 should be struck from H.R. 1710.
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CONCLUSION
Many provisions of H.R. 1710 run afoul the Bill of
Rights. Moreover, much of the bill, which concerns aliens
and expanding FBI counterintelligence investigative
authority, has nothing to do with the bombing in Oklahoma
City. ACLU urges the Committee to carefully reconsider this
legislation, and to strip away the parts that would make us
no safer, just less free.
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