Washington Post
September 25, 2001


Proposed Anti-Terrorism Laws Draw Tough Questions


By John Lancaster and Walter Pincus

The Bush administration's urgent quest for new anti-terrorism laws bogged down in Congress yesterday, as lawmakers from both parties expressed concern that the hastily prepared package could greatly expand police powers at the expense of privacy and other civil liberties.

At a hearing of the House Judiciary Committee, skeptical members confronted Attorney General John D. Ashcroft and other senior Justice Department officials on a number of administration proposals, including one that would permit the indefinite detention without trial of immigrants suspected of ties to terrorist groups.

They also complained that the administration is trying to force the package through Congress without giving lawmakers time to adequately digest proposals that could have serious, unforeseen consequences for rights that Americans now take for granted.

"Why is it necessary to rush this through?" asked Rep. Robert L. Barr Jr., the conservative Georgia Republican. "Does it have anything to do with the fact that the department has sought many of these authorities on numerous other occasions, has been unsuccessful in obtaining them, and now seeks to take advantage of what is obviously an emergency situation to obtain authorities that it has been unable to obtain previously?"

At the Senate Select Committee on Intelligence, meanwhile, Ashcroft's proposed expansion of a provision of the Foreign Intelligence Surveillance Act (FISA), which governs wiretapping of non-Americans inside the United States, ran into trouble not only with Democrats and civil liberties advocates, but also with at least one Republican member, Sen. Mike DeWine (R-Ohio).

Notwithstanding their reservations, lawmakers emphasized their desire to work closely with the administration in the aftermath of the Sept. 11 terrorist attacks. There is already broad agreement, for example, on the need to strengthen criminal penalties for terrorism and to rewrite surveillance laws to take into account new technologies, such as e-mail.

In the Senate, Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) and members of his staff worked with administration officials last weekend as they raced to complete their anti-terrorism bill in advance of a hearing before Leahy's committee today.

At yesterday's House hearing, Ashcroft said the administration wants Congress to act now on its "modest set of proposals" in light of what he said was the very real possibility that terrorists are planning additional attacks. "Terrorism is a clear and present danger to Americans today," Ashcroft said.

"Each day that so passes is a day that terrorists have an advantage," he added. "We are today sending our troops into the modern field of battle with antique weapons."

The administration's bill would make it easier for law enforcement agencies to eavesdrop on suspected terrorists by expanding wiretap authority from single phone lines to multiple modes of communication linked to a suspect, such as cell phones and e-mail.

It would also expand the definition of terrorists to include those who "lend support" to terrorist organizations, and it would allow immigration officials to "detain and remove" them. It would permit law enforcement agencies to share information -- including grand jury testimony -- with intelligence agencies, and it would let law enforcement officials not only freeze terrorists' assets but also seize them.

The proposals have sparked opposition from a wide array of civil liberties groups -- including liberals as well as conservative libertarians -- and there were abundant signs yesterday that many lawmakers are also uneasy.

People familiar with Leahy's thinking for, example, say the Vermont lawmaker is concerned that the bill would permit the indefinite detention of suspected terrorists without any meaningful judicial review and would greatly enhance government surveillance powers in all areas of law enforcement, not just those that relate to terrorism.

Leahy is also said to have reservations about the sharing of information among law enforcement and intelligence agencies, fearing that it could be abused for political purposes.

The last concern is shared by Rep. Barney Frank (D-Mass.), a member of the House panel, who yesterday recalled the "savage campaign of defamation waged by J. Edgar Hoover as head of the FBI against Dr. Martin Luther King."

Ashcroft noted that the sharing of such information for political purposes is a criminal offense, and Deputy Attorney General Larry Thompson said the provision allowing collaboration between law enforcement and intelligence agencies is important because "the left hand has to know what the right hand is doing."

Similar objections on the topic of wiretapping foreigners in the United States surfaced at the Senate intelligence committee. Currently, the FBI must show to a special court that collecting foreign intelligence is the "sole" or "primary" reason for seeking such wiretaps. For a wiretap to be installed in a criminal case, the courts require additional information indicating that a crime probably is involved. The change sought by Ashcroft would ease the way for the FBI to get authority by requiring certification only that foreign intelligence is "a" purpose of the tap.

This new, lower requirement, combined with other provisions that open the way for complete FBI and CIA sharing of information gathered in terrorist cases, would permit criminal case investigators to obtain wiretaps more easily in terrorist cases using FISA than under normal criminal wiretap statutes.

DeWine said he believed the Justice approach could cause "real problems" if the wiretap information from a FISA tap was used in a criminal case. He questioned Associate Deputy Attorney General David S. Kris on the latter's contention that the changes being sought would not endanger the constitutionality of the entire FISA law.

"I hope you're right," DeWine said, "but I'm not sure you are right." Sens. Dianne Feinstein (D-Calif.) and John Edwards (D-N.C.) also questioned the constitutionality of the provision.

Copyright 2001. Washington Post. All rights reserved.

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