Washington Post
October 4, 2001

Senate Reaches Deal On Anti-Terror Bill

By John Lancaster

Ending days of tense negotiations, Senate Democrats and the Bush administration reached agreement last night on a wide-ranging anti-terrorism bill. The breakthrough came after heavy pressure from Attorney General John D. Ashcroft, who has called the legislation vital to preventing another terrorist attack.

The bill would significantly enhance the ability of law enforcement and intelligence agencies to wiretap phones, monitor Internet communications and share information among themselves in the last case without court oversight.

But the agreement reached last night toned down an administration proposal that would have permitted the indefinite jailing of noncitizens suspected of terrorist offenses. Instead, it adopts language negotiated in the House that would limit the detention of such suspects to seven days, after which they would have to be charged with criminal or immigration offenses or released, according to Senate sources. They could still be held indefinitely under certain narrow circumstances, however.

Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) said in a statement issued at 9:30 p.m.: "These have been complex and difficult negotiations, but after much hard effort we have completed work on this bipartisan agreement."

Also last night, the House Judiciary Committee passed its own version of the legislation the product of bipartisan negotiations that ended Monday on a vote of 36 to 0. The full House is slated to vote on the measure early next week, and the Senate is likely to do so as well.

The Senate legislation closely tracks the House bill in most respects, but some differences remain to be worked out in conference.

Besides the immigration provision, Leahy and other Democrats have been at odds with the Justice Department on several key provisions of the administration bill, including one that would permit law enforcement and intelligence agencies to share wiretap and grand jury information in the absence of a court order. Under the agreement reached last night, the administration partly addressed Leahy's concerns about the inappropriate use of such material by agreeing to limit its distribution to officials with an explicit need for the information, Senate sources said.

But the administration "flatly refused" to accept Leahy's proposal to require that a judge approve the sharing of such information either before or after it occurs, according to a participant in the talks.

Another point of contention centered on the Foreign Intelligence Surveillance Act, which permits the use of wiretaps in intelligence cases under more relaxed legal standards than those that apply to criminal investigations. The law currently says such wiretaps can only be used in cases where intelligence gathering is the primary purpose. The administration wanted to permit the use of these wiretaps in cases where intelligence gathering is "a purpose," arguing that criminal and intelligence matters sometimes overlap.

Leahy and his staff, however, feared that such language could lead to abuses by law enforcement agencies seeking a less stringent standard under which to carry out surveillance in criminal cases as well as those involving terrorism. According to someone with knowledge of the discussions, Leahy persuaded Ashcroft that the administration proposal could render the entire law unconstitutional. They worked out a compromise stipulating as in the House bill that intelligence-gathering constitute "a significant purpose" of surveillance carried out under the act.

Democrats also sparred with the administration over its proposal to expand the authority that law enforcement agencies have to seek phone records of terrorist suspects. The administration argued that such orders should also apply to Internet communications, such as e-mail, and cover multiple jurisdictions. Democrats accepted the idea in principle but expressed concern that the provision could also permit access to the content of e-mails, opening the door to potential abuse. The compromise stated that content could not be retrieved under such "pen register" orders.

The agreement was reached after days of talks among Leahy's staff and that of Sen. Orrin G. Hatch (R-Utah), the ranking minority member on the judiciary panel, as well as officials from the White House and Justice Department. The talks hit a snag Tuesday when Ashcroft blamed Senate Democrats for unnecessary delays and Leahy accused White House officials of reneging on earlier agreements.

The rapid pace of the legislation through Congress has alarmed some civil liberties advocates, who suggest that the administration is bullying lawmakers to overlook constitutional issues that merit greater scrutiny.

"People are being told that if they do not sign onto this bill they will be blamed for the next terrorist act," said Jerry Berman, director of the Center for Democracy and Technology, which objects to some of the bill's provisions for enhancing police powers to conduct electronic surveillance. "People are being coerced."

Lawmakers say they are taking care to protect civil liberties even as they acknowledge the urgency of expanding police powers to deal with what Ashcroft has described as the "clear and present danger" of another terrorist attack. They also are moving quickly to strengthen money-laundering laws aimed at breaking up terrorist financial networks.

"There is a good deal of movement . . . and I'm hopeful that both the counterterrorism bill and the banking money-laundering bill can be taken up, hopefully simultaneously, next week," Senate Majority Leader Thomas A. Daschle (D-S.D.) said yesterday. To streamline the process, Daschle said he would like to skip the normal step of submitting the bill to a committee vote and bring it straight to the Senate floor if possible.

Members of the House committee did not seem inclined last night to make major changes to the compromise bill. But they also aired a fair amount of criticism, some of which Committee Chairman F. James Sensenbrenner Jr. (R-Wis.) said he would consider in proposing changes on the House floor.

Copyright 2001, Washington Post Company. All rights reserved.

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