1995 Congressional HearingsIntelligence and Security
1995 Congressional Hearings
STATEMENT
OF
JOHN H. SHENEFIELD
BEFORE
THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
CONCERNING
THE
COMPREHENSIVE ANTITERRORISM ACT OF 1995
H.R. 1710
PRESENTED ON
JUNE 13, 1995
TESTIMONY OF JOHN H. SHENEFIELD
Mr. Chairman and Members of the Committee, I am pleased
to testify in connection with the Comprehensive Anti
terrorism Act of 1995, H.R. 1710.
I serve as Chairman of the American Bar Association's
Standing Committee on Law and National Security, which is
composed of eleven senior lawyers with expertise and
experience in dealing with the legal aspects of national
security issues. The Standing Committee sees its role as
educating America's lawyers on the importance of the rule of
law in the national security arena. This testimony, however,
is not delivered on behalf of the American Bar Association
and does not purport to represent its official policy or
position. Nor can it represent in any official way the
position of the Standing Committee. Instead the testimony
does reflect a rough informal consensus of members of the
Standing Committee, which has been analyzing several legal
issues related to terrorism in recent years, and seeks to
make available to the Congress some of the lessons distilled
from that analysis.
In general, I support the Comprehensive Anti terrorism
Act of 1995. I believe it strikes an appropriate balance
between the prevention of terrorism and the efficient
apprehension and conviction of terrorists, on the one hand,
and the protection of civil liberties on the other. The bill
undertakes to resolve some extremely vexing issues, and it
does so in an admittedly aggressive way. I applaud the
determination of
the Executive Branch and the Congress to bring the full
weight of federal law enforcement, within constitutional
limitations, to bear on terrorism.
At the outset, let me suggest the appropriate
analytical context within which to consider the proposals
contained in H.R. 1710, or indeed any other proposals. First
and foremost, as Americans we live in an open society
undergirded by the rule of law. In seeking to combat
terrorism, we are defending that way of life -- it is what
we are fighting for.
Therefore, in seeking to deal effectively with the
problems of terrorism, domestic and international, we must
be vigilant to preserve and maintain the openness of our
society and the legality of our counter terrorism policies
and practices. Our citizens must be clear on this essential
point; so also our security officials.
How then to deal with the immense variation in
terrorist activity? How best to develop a sufficiently
flexible response so that truly serious threats can be
investigated without impinging unduly on civil liberties? To
these questions, there are no simple answers.
The key concepts are balance and proportion. Not all
terrorists are created equal. Not all terrorist acts are
equally threatening. Yet some terrorism can strike at the
very heart of an open society. Government must therefore
have at hand
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capabilities to deal with conspiracies of the most dreadful
import, where loss of time or investigative effectiveness
risks catastrophe. At the same time, not all investigative
powers need to be used in every case. Certain of the most
intrusive techniques should be thought of, and regulated
within the government, as techniques of last resort.
In part, the judgment of balance and proportionality is
a legislative one. Powers that can never be used in our
society should never be legislated into existence. That is
not, to state the obvious, a justification for failing to
provide society -- and its government -- with the ability to
use powers in times of emergency or need. The investigative
tool, kept in reserve, is nevertheless available for use
when needed. To put it beyond use, even when needed, would
be both unwise and immoral.
But the judgment on balance and proportionality is also
a question for the Executive Branch, for the implementers of
the policy, for the security officials. It is not common in
Washington in these days to be reassured by such a
statement, and yet it must be the case. Our government, and
especially our law enforcement agencies, and most especially
the Department of Justice, are operated by men and women of
great competence and dedication who work long hours, mostly
without recognition, to protect and defend our open society
under the rule of law. Until the contrary is demonstrated as
to any individual, I strongly believe that a presumption of
integrity and legality should be accorded our law
enforcement community. And it is that presumption that must
ultimately guide the members of Congress in assessing the
proposals in this bill.
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That is not to say that mistakes will not be made. Of
course they will -- that is the price we pay for living in
the real world. But they will certainly be infrequent, and
when they are made, they are more often than not failures of
the system rather than examples of the system gone bad.
The overheated rhetoric about government conspiracies
to deprive citizens of their rights is wrong. The notion of
investigative agencies straining at the leash to break the
law is wrong. The fear that government officials, when given
great power, will always or sometimes or ever abuse that
power is mostly wrong. We must always be alert to that
possibility; we cannot be immobilized by it.
And so, the question to ask of any proposal in H.R.
1710 is whether on balance it is proportional to the danger
that it targets -- flexible enough to be available when
necessary, under appropriate safeguards and regulation. And
what are the ways to ensure that these great powers are
actually used only in the appropriate cases?
I. Substantive Criminal Law Enhancements (Title I)
The purpose of this title is to provide a surer and
more comprehensive basis for the response of federal law
enforcement to acts of international terrorism both within
the United States and overseas. It establishes, really for
the first time, a coherent statutory framework that would
permit the federal government to attack complicity in
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acts of international terrorism across a broad front of
jurisdictional rationales, regardless of the sit us of the
terrorist acts or the nationality of the offender. It also
enhances our ability to deal with extra territorial
terrorist acts.
Section 102 prohibits the provision of support and
resources to terrorist organizations so designated by the
President of the United States, pursuant to an amendment to
the Immigration and Nationality Act found in proposed
section 611. Unlike some earlier versions (e.g., H.R. 896),
H.R. 1710 makes no exception for funding intended
exclusively for religious, charitable, literary or
educational purposes. No doubt the problems of policing and
enforcement inherent in any such licensing regime persuaded
the drafters that it was essentially unworkable.
Nevertheless, the Committee might be well advised to
consider whether inclusion of some such exception and
regulation, which might bear some resemblance to that of the
International Emergency Economic Powers Act, 50 U.S.C.
1701-06, together with certain legislative findings to
undergird the reach of the prohibition, would improve the
ability of the statute to withstand constitutional challenge
without detracting from its effectiveness. If the Committee
were so minded, we would suggest a number of technical
changes to the versions incorporated in earlier statutes,
and would be happy to work with the Committee's staff to
produce the optimal statutory language. I am confident that
any such provision will be upheld by the courts on national
security grounds and as within the foreign affairs powers of
the Executive Branch. See, e.g., Dames & Moore v. Regan, 453
U.S. 654 (1981).
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Section 104 creates a new violation of federal law,
"Acts of Terrorism Transcending National Boundaries." It is
important that the law contain the most complete exercise of
federal jurisdiction possible in connection with terrorist
acts within the United States, as well as establish
stringent penalties. Subsection (b) contains a catalog of
jurisdictional bases currently approved by federal courts.
Subsection (d) provides an important limitation on
prosecution, and requires the critical exercise of judgment
as to balance and proportionality. Under this provision, no
indictment or information may be sought unless the Attorney
General, or the highest ranking subordinate of the Attorney
General with responsibility for criminal prosecutions, has
made a written certification that the offense, or any act of
preparation or concealment, is terrorism as defined in
proposed section 315. The fixing of individual
responsibility for the certification, as is true in other
statutory contexts, is an effective method of ensuring the
integrity of the implementation of the statute's clear
intention that section 104 is used only to prosecute
terrorism. This is quintessentially the kind of judgment we
expect our highest federal law enforcement officials to
make. The certification process and retrospective
congressional oversight can combine to ensure that such
judgments are carefully and correctly made.
Proposed section 105 ("Conspiracy to Harm People and
Property Overseas") would substantially expand the very
limited federal jurisdiction that now exists
in section 956 of Title 18 to prosecute conspiracies carried
out in part within the United
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States to commit terrorist acts overseas. Section 105
complements section 104, dealing with international
terrorist acts within the United States, so that federal
prosecutors have the flexibility and scope to investigate
and prosecute those who conspire to commit, as well as those
who actually commit, terrorist acts both within the United
States and around the world. The technical amendments of
106-111 are wholly appropriate, as are the increased
penalties provided for in Title II.
II. Investigative Tools (Title III)
Title III contains a number of enhancements to the
capability of federal law enforcement to investigate
terrorism or engage in foreign counterintelligence
investigations. Each of these provisions seems a sensible
but limited expansion of current authority. Each also
employs an implicit balance between the government's
investigative needs and the individual's right of privacy.
Running throughout is the requirement that responsible
officials exercise the critical judgment as to balance and
proportionality.
Section 301 expands the federal authority to seek
court-ordered electronic surveillance in connection with
terrorism-related offenses. This section engages not just
the panoply of internal Justice Department regulation, but
also requires a 15-day report to the appropriate federal
judge. Wiretaps should of course be available in connection
with the most serious crimes, and there can be little doubt
that those added to 18 U.S.C.
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employees, murder of foreign officials, presidential
assassination, terrorist acts abroad and within the United
States, fall within that category. It is hardly persuasive
to argue that existing authority is used infrequently;
indeed, that should be a basis of reassurance that
electronic surveillance is an investigative technique to be
used as a last resort.
Section 308 sensibly expands the authority for
temporary emergency wiretaps in connection with crimes of
terrorism. Objection to this provision has been raised on
the ground that existing law, permitting emergency wiretaps
where the emergency involves immediate danger of death or
serious physical injury to any person, conspiratorial
activities threatening the national security interest, or
conspiratorial activities characteristic of organized crime,
already provides sufficient legal basis. But international
and domestic terrorism can take unforeseen forms with
unpredictable consequences, and may not easily fit existing
legal categories. The provision assumes that the Attorney
General has made a reasonable determination that an
intercept must be made before an order can be obtained in
the ordinary course, even with due diligence. This
provision, giving federal law enforcement flexibility in
exigent circumstances, seems particularly wise.
Section 309 provides for expanded authority for
multi-point, or roving, wiretaps. Under current law, roving
wiretaps are permissible only upon a showing that the
subject's use of different telephones is intended to thwart
law enforcement
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investigations. The new provision removes that inefficient
requirement, and substitutes instead the more practical
requirement that senior law enforcement officials and the
judge to whom the application is made find that
specification of the telephone to be tapped is impractical,
the same standard that exists in current law for multi-point
listening devices.
The fourth amendment requires that in its request for a
search warrant the government particularly describe the
premises to be searched. In the case of wiretaps,
traditionally the fourth amendment's particularity provision
has been construed to require the government to specify the
location of the telephone to be tapped, unless the special
finding of an attempt to evade can be made.
In theory, removal of the special finding for oral
communications has the potential for giving inadequate
emphasis to the constitutional particularity requirement,
which is designed to avoid the surreptitious interception of
the telephone calls of wholly innocent people. As a matter
of practice, constant physical surveillance guarantees that
the subject of the investigation -- and no one else -- is
actually using the telephone to be tapped. As a practical
matter, therefore, the provision is constitutionally sound.
Nevertheless, to avoid any doubt and to align the statutory
provision more completely with actual practice, we suggest
the insertion of a standard requiring a very high degree of
probability that the subject is at the time using the
telephone to be tapped. As part of
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the legislative history, we would suggest that the current
practice of confirmation be cited as an example of adequate
probability.
Title III also includes a variety of provisions
relating to foreign counterintelligence investigations.
There seems to be little reason why tools such as pen
register and trap and trace devices available to criminal
law enforcement should not be equally available to foreign
counterintelligence investigations. In addition, access to
certain consumer information, under proper safeguards,
should be eased. Section 303 and section 304 relating to
common carriers, public accommodation facilities, vehicle
rental facilities and the like seem to be sensible and
constructive expansions of foreign counterintelligence
authority.
Much has been made of section 312's provision for
military assistance with respect to offenses involving
weapons of mass destruction. The controversy is largely
baseless, inasmuch as the assistance provided is of a purely
technical and logistical nature in circumstances where the
absence of such assistance could be catastrophic. To wall
off technical expertise possessed by one arm of the United
States government from its employment in a law enforcement
context by another branch of the United States government
seems perverse, particularly where the results of such
compartmentalization could be so dire.
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III. Immigration Law Improvements (Title VI)
Title VI creates procedures for dealing with alien
terrorists under the immigration laws.
Section 601 establishes special removal procedures for
alien terrorists. The provision is an eminently sensible
effort to deal with the problem of the need of the federal
government both to avail itself of sensitive classified
information in connection with alien terrorist removal
procedures and to avoid disclosing such information where
that would pose a risk to the national security of the
United States. The proposal utilizes a special court similar
to that recognized in the Foreign Intelligence Surveillance
Act context, and entrusts a specially appointed federal
district judge with the authority to police the process and
make the ultimate decision as to removal. Section 601
likewise provides for representation by counsel, who may
introduce evidence, examine witnesses, and procure the
attendance at the hearing of witnesses or the production of
documents.
Classified information can be used, either in
connection with the application for the special removal
hearing or in connection with the substantive removal
decision itself. Section 601 in these circumstances
establishes special procedures to be employed to safeguard
especially sensitive classified information. Such
information is to be presented to the court ex parte and in
camera. In connection with the actual hearing, written
summaries of such classified information that do not pose a
risk to national
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security are to be made. If no such summary is possible
without revealing enough to cause serious and irreparable
harm to the national security or death or serious bodily
injury to any person, the judge can permit the special
removal hearing to continue and can consider the classified
information in camera and ex parte even though it is not
supplied to the alien.
H.R. 1710 improves on earlier versions in cases
involving lawful permanent aliens with a provision in
section 506(c) establishing special procedures for access to
classified information and challenges to the use of such
information by special attorneys with security clearances
retained precisely for such purposes. I suggest that a
useful addition to the procedure for removal proceedings in
other cases would be to establish a similar guardian ad
litem feature, pursuant to which a government lawyer,
separated from the hearing staff, would be statutorily
assigned the responsibility of assessing the items of
confidential information, helping the court to test their
sufficiency, and making appropriate arguments on behalf of
the alien.
Sections 611, 612 and 613 that provide for special
treatment of alien terrorists are also commendable. In
general, the law should protect the United States from
having to open its borders to those who are members of
terrorist organizations that threaten the national security
of the United States.
* * *
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The Comprehensive Anti terrorism Act of 1995 is a
measured step to provide the federal government, and in
particular the investigative and law enforcement agencies,
with adequate tools to deal with terrorist conduct. The
provisions are not excessive; they particularly do not
deserve the hysterical reaction of some critics that see in
them the destruction of civil liberties. In fact, the bill
is carefully designed to protect civil liberties as a
substantive matter. Internal departmental regulation and
congressional oversight can ensure that our society is
served by effective law enforcement and by the protection of
vital civil liberties.
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