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What's at issue in the antiterrorism billBy JOHN BALZ
© St. Petersburg Times,
published September 28, 2001
WASHINGTON -- Congressional members are raising doubts about roughly half of the 53 provisions in an antiterrorism package Attorney General John Ashcroft delivered last week.
Known as the Mobilization Against Terrorism Act, the bill would grant Department of Justice officials broader powers to investigate and prosecute suspected terrorists. Lawmakers are questioning whether such changes would come at the expense of the Bill of Rights.
Key areas of disagreement between the Justice Department and Congress:
Updating laws to allow the monitoring of all communications devices used by an individual. Now, federal agencies must submit separate requests to monitor each device. Designed to help law enforcement deal with the reality of cell phones and e-mail, this provision has created much concern about the potential loss of electronic privacy.
Allowing the U.S. government to detain foreign terrorist suspects and deport them without presenting evidence. This is the most controversial of the department's requests. Key Democrats such as Vermont Sen. Patrick Leahy, chairman of the Judiciary Committee, wonder how law enforcement agents can fairly and accurately determine who is part of a terrorist plot. Under the Justice Department proposal, suspects could be detained for an indefinite period and allowed to appeal only after they had been removed from the country.
Granting government authority to subpoena "tangible things (including books, records, papers and documents) that are relevant" to a terrorism investigation. The department has described the provision as one that applies to business records, but privacy groups argue it could be easily abused by over-aggressive law enforcement agents.
Having American courts accept information obtained about an American by a foreign government's electronic surveillance. Legal scholars worry whether allowing the sharing of such information would be a violation of the Constitution. As currently interpreted, the collection of such evidence constitutes illegal search and seizure.
Granting the president authority to confiscate domestic assets of those suspected in "attacks against the United States." Some lawmakers argue that the president already has substantial power to take away assets and that Ashcroft's proposal would allow the use of secret evidence.
Key areas of agreement between the Justice Department and Congress:
Expanding the definition of a terrorist to include those who support terrorist activities by providing money, shelter or other assistance.
Extending the length of time the Foreign Intelligence Surveillance Court can keep tabs on suspected terrorists.
Lifting the measure that prevents prosecution of terrorism crimes five years after they occur.
Requiring cable companies, telephone companies and Internet service providers to comply with the same rules for obeying court orders about the release of personal information. Law enforcement could also subpoena the information in "emergency situations" without asking for a judge's permission.
Increasing the penalties against those who use chemical and biological agents without the proper certification.
Concerns over civil liberties prompt Congress to delay action on antiterrorism bill.
©New York Times
© St. Petersburg Times,
published September 28, 2001
WASHINGTON -- After the terrorist attacks, there was a bipartisan rush to provide the administration with emergency aid money, new military authority and financial relief for the airlines. But Congress is taking a second look -- and a third and a fourth -- at the administration's antiterrorism proposal.
Asked about the strikingly different response, Rep. Dick Armey, the House majority leader and a conservative Republican from Texas, said this week:
"This is a tougher area for us to look at than areas that involve money. This is about how we equip our antiespionage, counterterrorism agencies with the tools they want while we still preserve the most fundamental thing, which is the civil liberties of the American people."
That concern over civil liberties -- and the desire to keep careful checks on the government -- run deep on Capitol Hill, although they are expressed with the utmost care these days, given the magnitude of the losses and the anger at the terrorists who caused them. Everyone begins their remarks by vowing that law enforcement authorities should be given the tools they need. But there are questions about the balance between civil liberties and national security in the administration's proposal.
And those concerns are bipartisan.
The result is legislation that Attorney General John Ashcroft asked Congress to pass in a matter of days last week is now the subject of intense negotiations among Democrats, Republicans and the administration. Some provisions apparently will be dropped, others substantially revised. Lawmakers say they still hope to move legislation through the committees next week, but they also say it is critical to first reach a broad consensus.
"I'm not going to bring a bill to the floor that's going to be attacked by the left and the right," said Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, "because it's not going to go anywhere."
Sen. Arlen Spector, R-Penn., is worried about the administration's proposal to allow the indefinite detention of immigrants if they are deemed to be threats to national security. Sen. Edward M. Kennedy, D-Mass., shares those objections.
Rep. Barney Frank, a liberal Democrat from Massachusetts, wants to ensure that, if the government gets the new surveillance powers, there are also new remedies against those in the government who release "inappropriate, personal" information. At a hearing this week, he recalled the wiretapping of Martin Luther King Jr. by J. Edgar Hoover's FBI.
Armey voiced a similar concern but reached back to a more recent precedent -- the gathering of FBI files on Republican officials by aides in the Clinton White House. "There are a lot of members that are acutely aware of the fact that the agencies don't always exercise due diligence in the way they handle information," Armey said. "I draw my case by raw FBI files apparently being turned over to political operatives at a moment's notice, and that sticks in a lot of people's craw in terms of the security of who you are in your life and what right the government has to share that information."
Rep. Bob Barr, a conservative Republican from Georgia, has been one of the House Judiciary Committee's most vocal critics of the administration's legislation. Barr argues that some provisions in the proposal -- for example, new money laundering statutes to cut off financing to terrorist organizations -- are areas of consensus and could be passed quickly. But others, he says, need careful scrutiny, such as allowing a wider use of material obtained in grand juries.
Rep. Maxine Waters, a liberal Democrat from California, declared at the House committee's hearing this week that while many lawmakers had "bent over backward" to rally behind the administration, "we have to draw the line" on civil liberties.
Waters said she feared that the definition of terrorism in the administration's bill was too wide. She concluded, "I find myself agreeing with Mr. Barr, and that is very unusual."
Rep. Robert Scott, D-Va., a House Judiciary Committee member, was pleased with the decision by Rep. James Sensenbrenner, R-Wis., who is the committee chairman, to postpone action on the bill until next week.
"The first victory was the idea that we're actually going to deliberate and take some time before we report a bill," Scott said.
Some lawmakers say that the indefinite detention of immigrants will not survive in the final legislation. Other provisions are also being substantially rewritten. Grover Norquist, the conservative strategist, whose regular Wednesday meeting of the "center-right coalition" heard from Barr on civil liberties this week, said the process was a good one.
"Things are slowed down now to the point where there's an honest, serious discussion about what points are useful and what are not," Norquist said.
PRIVACYUneasiness over drive to monitor e-mail, Web
BY JIM PUZZANGHERA
Mercury News Washington Bureau
WASHINGTON -- Some of the Bush administration's proposed rules of engagement for America's new war on terrorism could snare millions of unsuspecting Americans in an expanded surveillance net, electronic-privacy advocates said.To combat terrorists who are increasingly relying on computers, Attorney General John Ashcroft is seeking to expand the nation's laws to allow more federal monitoring of e-mail and Web use -- extraordinary new powers that would also give investigators an unparalleled look into the private correspondence and Web-surfing habits of law-abiding citizens.
Ashcroft and President Bush are pressing Congress for action this week on the sweeping package of proposals that also includes indefinite detention of legal immigrants and an expanded definition of terrorist activity. But electronic-privacy advocates, along with other civil liberties groups and members of both parties in Congress, have urged a more cautious review to avoid damaging mistakes.
``We want to solve our national-security crisis, but we don't want to have a great deal of collateral damage to our Constitution,'' said Jerry Berman, executive director of the Center for Democracy and Technology in Washington.
Berman's organization is among 150 in a coalition opposing parts of the administration's anti-terrorism proposals. The administration is now negotiating with Congress on scaling back some of the more controversial proposals.
``If you do it on a fast track, you're going to make mistakes,'' said Lee Tien, senior staff attorney for the Electronic Frontier Foundation in San Francisco.
``These are not changes that last for three months . . . or for the duration of this crisis,'' Tien said. ``They're changing the law, and that's the way it is until another Congress changes it back.''
Ashcroft told two congressional committees this week that the changes are needed quickly to help the law catch up with technology -- and investigators catch up with terrorists before another attack.
``The American people do not have the luxury of unlimited time in erecting the necessary defenses to future or further terrorists acts,'' Ashcroft told the Senate Judiciary Committee. ``Terrorist organizations have increasingly used technology to facilitate their criminal acts and hide their communications. Intelligence-gathering laws that were written for the era of land-line telephone communications need changing.''
One of the major changes the Bush administration wants is to expand wiretapping laws to allow investigators to track e-mail as well as telephone communications without having to prove probable cause of a crime before a judge.
The probable-cause standard is required for the interception of the actual content of a phone call or an e-mail. But investigators are currently allowed to conduct more limited wiretapping, including monitoring what numbers are called from a particular phone.
But expanding that to e-mail would allow investigators to see e-mail headers, which include the recipient and the subject line. The FBI can gather that information using Carnivore, a program that searches the records of an Internet service provider. To find specific e-mail messages, Carnivore must sort through all the e-mail of an Internet service provider. That opens up all the people using that provider to government surveillance without judicial review, privacy advocates said.
``The problem with Carnivore is that it does sweep up the communications of thousands of innocent subscribers,'' said David Sobel, general counsel for the Electronic Privacy Information Center in Washington.
But Carnivore can do much more. It can also be run on Web servers to track all visitors to a particular site, or track all the sites visited from a certain computer. That could pose a major privacy problem if investigators tapped public computers, such as those at libraries or cyber cafes that may have been used by suspected terrorists, Sobel said.
Those fundamental differences between telephone and Internet communications lead some lawmakers, such as Rep. Chris Cox, R-Newport Beach, to urge caution.
``I am quite concerned that this decision not be taken in haste,'' Cox said. ``The Internet is a very different medium altogether.''
The administration also wants to allow more sharing of information between intelligence agencies and law enforcement agencies -- information-sharing that is not limited to terrorism cases. Privacy advocates are concerned that intelligence information gathered without probable cause could be used by law enforcement agencies to launch a criminal investigation.
In addition, the definition of terrorism would be expanded to include not just people involved in terrorist activity but also those who ``lend support'' to terrorist organizations.
``You've got an expansion of surveillance authority to new technologies. You've got a reduced role for the judiciary to oversee this process. You've got an expansive definition of terrorism that triggers a lot of these powers, and you've got a loosening of existing rules that prohibit the sharing of information between an agency like the FBI and an agency like the CIA,'' Sobel said.
``You take all of that together, and that's a radical shift in the balance that traditionally has been struck between investigative authority and personal privacy.''
Berman and others point to wartime domestic-surveillance powers granted by President Franklin D. Roosevelt during World War II that set the stage for the FBI under J. Edgar Hoover to engage in extensive surveillance for years.
Cox also is concerned about the possibility that broader surveillance powers could be overturned by the Supreme Court, which in the past has tightly limited such authority. The overturning of such laws could lead to the invalidation of convictions of terrorists.
``It's our free society that's under attack,'' he said. ``Restrictions . . . on our freedom to correspond with one another in relative privacy or on our procedural rights before the government will denude us as a free society.''
WASHINGTON -- Punishing terrorists as harshly as drug dealers and mafia dons and updating the FBI's wiretapping abilities are necessary for the Justice Department to battle terrorism, Attorney General John Ashcroft said Tuesday.
Ashcroft, who testified to the Senate Judiciary Committee, asked Congress to pass an entire anti-terrorism package before the end of the year. But when asked to pare down his proposed legislation to the most important items, Ashcroft picked increasing the terrorism penalties and updating the technology laws.
"Those are the two things that are priorities," Ashcroft said.
The Senate Judiciary Committee chairman, Sen. Patrick Leahy, D-Vt., promised to work with Ashcroft on getting some parts of his legislation through the Senate, although Leahy has an anti-terrorism proposal of his own that he wants lawmakers to consider. "There are a whole lot of things we can work on and we can agree on," he told Ashcroft.
This was Ashcroft's second day on Capitol Hill calling for his anti-terrorism legislation. The attorney general acknowledged in testimony to the House Judiciary Committee Monday that the proposals would not have prevented the attacks but said they are necessary for a safer future.
"The mere fact that we can't do everything shouldn't keep us from doing what we can do," he says.
"The American people do not have the luxury of unlimited time in erecting the necessary defenses to future terrorist acts," the attorney general said.
Questions about the constitutionality of his provisions and how they would affect Americans' civil liberties have prompted lawmakers to slow down the legislation.
The House committee had planned to vote on the legislation Tuesday, but Rep. James Sensenbrenner, R-Wis., who chairs the panel, delayed it until late next week to give the panel time to work out worries aired by some lawmakers.
"We are very close to reaching a bill that has bipartisan support and that would pass the House of Representatives," Sensenbrenner said.
Ashcroft, a former senator, wants Congress to expand the FBI's wiretapping authority, impose stronger penalties on those who harbor or finance terrorists and increase punishments of terrorists. "Every day that passes with outdated statutes and the old rules of engagement is a day that terrorists have a competitive advantage," Ashcroft said.
But he said the new powers would not necessarily have prevented the attacks two weeks ago that left more than 6,500 people dead or missing in New York City, at the Pentagon and in Pennsylvania. "We do know that without them the occurrence took place, and we do know that each of them would strengthen our ability to curtail, disrupt and prevent terrorism," Ashcroft said. "But we have absolutely no assurance."
Both Democrats and Republicans on the committee said the issues are too important to rush the legislation.
Rep. John Conyers of Michigan, the panel's senior Democrat, said the parties had agreed on 16 items in Ashcroft's package, but that some others "give us constitutional trouble."
Ashcroft's proposal also would allow immigrants suspected of terrorism to be held indefinitely -- something Conyers said the courts already have viewed as unconstitutional.
Concerns also were raised about the proposed use in U.S. courts of electronic surveillance gathered by foreign governments with methods that violate the Fourth Amendment protection against unreasonable search and seizure.
"While some would say that's unconstitutional on its face, let me be more polite: We're deeply troubled," Conyers said.
Ashcroft said he was sure his bill would pass constitutional muster. "We are conducting this effort with a total commitment to protect the rights and privacy of all Americans and the constitutional protections we hold dear," he said.
On the Net:
Justice Department: http://www.usdoj.gov
House committee: http://www.house.gov/judiciary
Senate committee: http://judiciary.senate.gov
WASHINGTON -- President Bush urged Tuesday that Congress give law enforcement more tools to fight terrorism even as Atty. Gen. John Ashcroft faced a second day of questions from lawmakers worried that the new powers may be too broad.
"I want you to know that every one of the proposals we've made on Capitol Hill, carried by the attorney general, has been carefully reviewed," Bush told a group of FBI employees. "They are responsible requests. They are reasonable requests. They are constitutional requests."
But Ashcroft sounded a more compromising tone when he fielded criticisms from his former Senate colleagues about some of the provisions.
"Obviously we need to clarify this," Ashcroft said of the request to be able to detain noncitizens suspected of a connection to terrorists. "We don't want to have something which has an effect which we did not intend."
Ashcroft said the administration wants the power to keep in custody foreigners who are awaiting a deportation trial on other grounds. But several lawmakers said they believe the administration's proposal would allow detention of foreigners who aren't already subject to deportation and would do so without much evidence or judicial review.
Lawmakers also questioned whether requested authority to track e-mail would let investigators find out the content of the messages before showing they have good reason to monitor them. Ashcroft insisted that the proposal is no different from the current law that allows investigators to see what phone numbers have been dialed from a specific phone.
Sen. Dianne Feinstein, D-Calif., suggested Congress approve the new powers but only for a limited time so lawmakers can assess their impact and make sure they're not being abused.
"If I thought the risk of terrorism was going to sunset in several years, I would be glad to say we ought to have a sunset provision," Ashcroft said. "We need to err on the side of having these tools available."
WASHINGTON After facing a second day of questions from skeptical lawmakers, Attorney General John Ashcroft signaled yesterday that he would be willing to give ground on two controversial provisions in a White House anti-terrorism bill.
Appearing before the Senate Judiciary Committee, Ashcroft offered to alter language that would have granted the attorney general broad new powers to detain foreign nationals and employ electronic surveillance, provisions many lawmakers say threaten to trample civil liberties.
But even with these concessions from Ashcroft, committee Chairman Patrick Leahy, D-Vt., made it clear the anti-terrorism legislation would face more scrutiny and could take several weeks to clear Congress.
"We've made some progress," Leahy said. "I think we can make more."
The prospect of delay represents a significant setback for the White House, which has been pushing for swift passage of the legislation. Vice President Dick Cheney urged Senate Republicans yesterday to push for a vote on the bill by the end of next week, sources said.
To meet that deadline, Senate Minority Leader Trent Lott, R-Miss., said it might be necessary to split the bill into pieces, setting aside the more controversial elements.
Leahy and other lawmakers said they supported the bulk of the bill, which also contains less controversial provisions to impose stiffer criminal penalties for terrorism and enhance cooperation among intelligence and law-enforcement agencies.
Ashcroft has made two trips to the Capitol this week to defend the counterterrorism package, which the White House has been assembling since the Sept. 11 attacks on the World Trade Center and the Pentagon. On Monday, he heard similar concerns from the House Judiciary Committee.
Faced with this opposition, Ashcroft showed new flexibility yesterday, particularly on a section many congressional representatives said would give the attorney general far too much latitude to detain foreign nationals with little or no judicial review.
Sen. Edward M. Kennedy, D-Mass., and others have said that section would permit authorities to jail foreign nationals indefinitely even if they are in the country legally based solely on the attorney general's assertion that they pose a terrorist threat.
But that is not the intent of the bill, Ashcroft said. Rather, he said, the language is meant to allow authorities to detain individuals only when they are in violation of immigration laws and subject to deportation.
Ashcroft also proposed a compromise on a provision that would lower procedural hurdles for authorities seeking permission to place a terrorism suspect under electronic surveillance.
But some lawmakers said the new wiretapping provisions still would go too far. Sen. Charles Grassley, R-Iowa, raised questions about expanding authorities' ability to snoop on e-mail and other computer communications.
Ashcroft said unless investigators have court permission to analyze the contents of e-mail, they only comb the first few lines for the addresses of the sender and the recipient. But, Grassley noted, even the first few lines of e-mail messages can reveal a lot.
In the first congressional hearing on the measure, the House Judiciary Committee made it clear that unless the package is altered or pared back, it is unlikely to earn the swift passage sought by the White House.
U.S. Rep. John Conyers, D-Mich., the ranking Democrat on the committee, told Ashcroft that Congress was behind the administration in its efforts "to get those guys" who planned the Sept. 11 attacks on the World Trade Center and the Pentagon.
But, he continued, he and other Democrats were "deeply troubled" by provisions to give the government expanded wiretapping authority and the power to detain non-U.S. citizens indefinitely. A number of Republicans, including Rep. Bob Barr, R-Ga., raised similar objections.
The session marked the most visible departure yet on Capitol Hill from the remarkable unity and largely uncritical support of the administration that lawmakers have shown since the attacks.
Ashcroft defended the package, saying every provision was crafted to safeguard civil liberties and pass constitutional muster. The ability of law enforcement to combat terrorism, he said, is hamstrung by laws that not only fail to recognize the new seriousness of the threat but also have been rendered obsolete by the advance of technology.
"Every day that passes with outdated statutes and the old rules of engagement is a day that terrorists have a competitive advantage," Ashcroft said. "We are today sending our troops into the modern field of battle with antique weapons."
The anti-terrorism bill is designed to streamline the government's ability to place terrorist suspects under surveillance.
The White House wants investigators to be able to obtain court orders for electronic surveillance that would apply across several jurisdictions, supplanting a time-consuming system that requires authorities to file separate requests for each jurisdiction.
The administration also is seeking "roving wiretap" authority, which would allow investigators to place individuals rather than specific devices, such as a phone under electronic surveillance.
Ashcroft has argued that current restrictions put investigators at a deep disadvantage in an age when suspects might use numerous devices, from computers to disposable cell phones, to evade law enforcement.
Many lawmakers have said they agree that such statutes are out-of-date. But yesterday, a number of representatives questioned the scope of the White House's proposed expansion of wiretapping authority.
Barr, a conservative Republican and staunch privacy advocate, complained that the bill would give law enforcement sweeping new powers even in investigations that have nothing to do with terrorism.
Barr asked whether the Justice Department was trying "to take advantage of what is obviously an emergency situation." The department, he said, "has sought many of these authorities on other occasions and has been unsuccessful in obtaining them."
Groups including the American Civil Liberties Union and the Center for Democracy and Technology warned that the legislation would give the FBI and other agencies broad new powers to spy on Americans and would roll back many of the protections passed in the 1960s and '70s amid the Vietnam War and Watergate.
Many of the bill's proposals have broad bipartisan support, including provisions that would stiffen criminal penalties for terrorist activity and require federal law-enforcement and intelligence agencies to improve their data-sharing capabilities.
At a separate hearing before the Senate Intelligence Committee, CIA general counsel Robert McNamara Jr. called upon Congress to break down the "artificial barriers" that prevent the FBI and the CIA from sharing information.
Under current law, the sharing of information is limited to protect the rights and privacy of suspects. The need to share information is particularly urgent in the investigation into the attacks, which involves thousands of FBI and intelligence agents working worldwide.
-- Black Adder (email@example.com), September 29, 2001