Washington Post
October 9, 2001

Hill Is Due to Take Up Anti-Terror Legislation

By John Lancaster

WASHINGTON -- The anti-terrorism bill that Congress is slated to take up this week includes a number of measures long sought by law enforcement agencies but resisted by civil libertarians and their congressional allies as overly broad and possibly unconstitutional.

In response to the Sept. 11 terrorist attacks, the House and Senate will vote on separate versions of wide-ranging legislation that would enhance domestic surveillance powers, stiffen penalties for terrorism and make it easier for law enforcement and intelligence agencies to share information. Administration officials say that current laws are, in many cases, more suited to the age of the rotary telephone than the era of the Internet.

Civil liberties advocates, meanwhile, point to the broad powers already available to law enforcement and intelligence agencies and past abuses committed by both in the name of national security in warning that political pressures may cause Congress to go too far.

They note, moreover, that Congress has acted repeatedly in recent years to bolster the nation's capacity to fight terrorism. Even under existing law, government agents investigating terrorism can tap phones, plant hidden microphones and secretly search private property with significantly fewer legal checks than apply to ordinary criminal cases. They can in some circumstances conduct roving wiretaps that allow them to eavesdrop on an individual's conversations from multiple phones. They can detain sometimes on the basis of secret evidence any noncitizen subject to immigration proceedings who is believed to pose a threat to national security.

"There have been a number of proposals that have been lying around . . . but there was never a meeting of the minds in the House and Senate," said Jerry Berman, director of the Washington-based Center for Democracy & Technology, a research and advocacy group. "This was an opportunity to get on the train."

The debate over how much power to give law enforcement and intelligence agencies particularly in domestic surveillance is in many respects an old one.

Until the 1970s, various executive branch agencies, citing national security, "regularly" tapped the phones of perceived domestic enemies without seeking a court order, Morton H. Halperin recalled in testimony to the Senate Judiciary Committee on Oct. 3. Halperin, a civil liberties advocate who has held national security jobs in several administrations, ought to know: His phone was tapped without a warrant for 21 months in 1969-71. "Reading the government logs of your private phone calls for an extended period does bring sharply into focus the danger of abuse and value of privacy," Halperin said.

Such disclosures prompted a series of high-profile congressional investigations, notably the Senate Select Committee to Study Government Operations with Respect to Intelligence Activities, known as the Church Committee after its chairman, Idaho Democrat Frank Church.

The panel's findings which detailed the CIA's involvement in assassination attempts and coup plots, among other things led to the creation of standing House and Senate committees to oversee the intelligence agencies. They also led the government to seek congressional authority for domestic surveillance in cases involving national security. The result was the 1978 Foreign Intelligence Surveillance Act, which allows the government to conduct surveillance under a less stringent legal standard than is required for criminal investigations; to guard against abuses, a special court must approve the surveillance in advance.

Among other things, the act gives intelligence agencies the ability to "place wiretaps, install bugs and conduct secret searches without showing probable cause of criminal conduct, giving notice or even turning the results of the surveillance over to a court for review," said Berman, of the Center on Democracy & Technology.

At the behest of the FBI and other agencies, lawmakers have since expanded the arsenal for fighting terrorism. In 1998, Congress made it easier for investigators to install roving wiretaps in criminal investigations and obtain telephone and business records under the Surveillance Act.

And whatever the shortcomings of current anti-terrorism law, it has not prevented the Justice Department from arresting and holding hundreds of noncitizens in the course of its investigation into the Sept. 11 attacks.

"There's lots of authority out there," said a senior Democratic aide on the Senate Judiciary Committee.

There is broad agreement on Capitol Hill that anti-terrorism laws need to be updated, both to take account of new technologies such as cell phones and to ensure that counter-terrorism investigators wield the same powers that apply to drug trafficking and organized crime.

Current law, for example, allows the use of roving wiretaps in criminal cases but not in investigations carried out under the Surveillance Act; the House and Senate bills would fix that inconsistency. In a similar vein, law enforcement officials contend that wiretap laws written for old-fashioned land lines need to be modernized to take account of new technologies such as e-mail.

The Sept. 11 attacks also have opened the door to measures that lawmakers previously had blocked as overly intrusive. Last year, the House Judiciary Committee overwhelmingly rejected a Justice Department proposal that would have lowered the legal threshold for monitoring Internet communications. A version of the proposal has since been incorporated into the House and Senate anti-terrorism bills.

Along the same lines, law enforcement agencies have long chafed under a requirement that they obtain court approval before sharing information such as wiretap and grand jury transcripts with their intelligence counterparts. The Senate bill over the objections of Senate Judiciary Chairman Patrick J. Leahy (D-Vt.) would dispense with that hurdle; the House preserved it only in relation to grand jury testimony.

Notwithstanding the breadth and complexity of the legislation, the House and Senate Judiciary Committees have each held just one hearing on the bills Ashcroft appeared before them so briefly that many members did not get a chance to ask him a question as staffers worked around the clock to produce language acceptable to members of both parties.

The Senate bill represents a consensus reached last Wednesday night between Leahy and the White House. The House version is less accommodating to the administration,largely because the surveillance powers it would grant would expire after two years a compromise to win support from lawmakers who wanted to revisit the issue in 2003. The two bills will have to be reconciled in conference.

Senate Democratic aides have expressed frustration with the process and its outcome. On the other hand, a Leahy aide said: "Senator Leahy's direction to us was that our goal, our job, our intention, was not to promote a bitter split or a partisan split about what would be in this bill. This should be a consensus process during these very special times."

Copyright 2001, Washington Post Company. All rights reserved.

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