DEBATE 22 ANTI-TERRORIST LEGISLATIONwps.ablongman.com/wps/media/objects/1824/1868749/... · ANTI-TERRORIST LEGISLATION ... (of foreign students) and also many tangible item controlled

ANTI-TERRORIST LEGISLATIONTHREAT TO CIVIL LIBERTIES OR CONSTITUTIONAL SHIELD?

THREAT TO CIVIL LIBERTIES

ADVOCATE: Bob Barr, former member of the U.S. House of Representatives(R-GA)

SOURCE: Testimony during hearings on, “America after 9/11: FreedomPreserved or Freedom Lost?” before the U.S. Senate Committee on theJudiciary, November 2003

CONSTITUTIONAL SHIELD

ADVOCATE: James B. Comey, Deputy Attorney General of the United StatesSOURCE: Testimony during hearings on “Preventing And Responding to

Acts of Terrorism: A Review of Current Law” before the U.S. SenateCommittee on the Judiciary, April 2004

For most Americans, September 11, 2001, began well. It was sunny and 66ºF at8:00 A.M. in New York City. On the East Coast, people were arriving at work and

otherwise beginning their days. Around the rest of the country, most folks were get-ting up or enjoying that last hour or two of sleep. All was normal.

Then at 8:45 A.M. an airliner smashed into the north tower of the World TradeCenter. Within little more than an hour, a another jet liner crashed into the southtower, a third dove into the Pentagon, and a fourth went down in a field nearPittsburgh. All tolled, 19 terrorists, 33 crewmembers, 219 passengers, and more than3,000 people on the ground died that morning.

The impact on the Americans was profound. The attacks marked the “End ofIllusion,” as columnist Robert J. Samuelson entitled a Washington Post essay. In addi-tion to the physical damage, he wrote, “What was destroyed…[was] Americans’dreamlike feeling [of being] insulated from the rest of the world.”

The U.S. reaction was dramatic. President George W. Bush soon ordered U.S.forces into Afghanistan to attack al-Qaeda and the Taliban regime. Congress quicklyapproved military action, and polls found nearly 90% of Americans agreed. Theimpact of 9/11 on U.S. foreign policy also included the formulation of the BushDoctrine and the subsequent invasion of Iraq.

The political shock waves from 9/11 also rippled inward. Amid their shatteredsense of security, Americans sought safety and were willing, at least temporarily, tosurrender some of their civil liberties to get it. When asked less than a week after theattack, “Would you support new laws to strengthen security measures against terror-ism, even if that meant reducing privacy protections?” 78% said yes, 14% replied no,and 8% were unsure.

Americans soon got what they wanted. Bush proposed legislation to greatlyincrease the ability of government agencies to conduct wiretaps and other covert oper-ations and to ease the barriers to U.S. intelligence agencies conducting investigations

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22D E B A T E

John T. Rourke, You Decide! 2005 Copyright © 2005 by Pearson Education, Inc.

within the country. In an anxiety-ridden atmosphere, the USA Patriot Act(“The Uniting and Strengthening America by Providing Appropriate ToolsRequired to Intercept and Obstruct Terrorism Act of 2001”) quickly passed bothhouses of Congress by huge margins and was signed into law. Among other things, it:

• Eases the authorization process for wiretaps, searches, and other covert activity.Standards for judicially authorized actions are lower; in limited circumstances ac-tion can be taken on authorization of the U.S. Attorney General.

• Permits surveillance of electronic communications, including e-mail and voice-mail and of communications records, such as Web sites visited.

• Eases barriers to domestic operations by intelligence agencies. This can now occurwhen foreign intelligence is a significant, no longer the only, concern.

• Permits “roving” surveillance of whatever communications device a subject is us-ing, rather than being restricted to a single device.

• Allows access to information such as library records, book store purchases, stu-dent records (of foreign students) and also many tangible item controlled byrental companies, such as automobiles previously rented by a suspect.

• Expands the use of searches conducted without an individual’s knowledge or a re-quirement that the government reveal what it seized during the search.

The following readings by advocates Bob Barr and James Comey provide more detailon the Patriot Act. But you may want to see it in its entirety at: http://www.fincen.gov/pa_main.html. Detailed knowledge will help you evaluate theworries of some that without the act the country stands virtually defenseless beforeterrorism and the voices of others who claim that under the act, CIA agents willsoon be bugging your home. Neither extreme is likely. So proceed with caution inyour evaluation.

POINTS TO PONDER➢ Read the following debates with almost two contradictory thoughts in mind.

One is that it is healthy for citizens in a democracy to be leery of any form ofcovert government intrusion. At the same time, though, bear in mind that mostof these methods are not new, only expanded, and the process for agencies to usethem has been made less restrictive, not eliminated. This is an issue of balance,not right or wrong.

➢ One of the oft-quoted remarks of Benjamin Franklin is, “They that can give upessential liberty to obtain a little temporary safety deserve neither liberty nor safe-ty.” Is this a bit of enduring wisdom from the “sage of Philadelphia,” or is it a shib-boleth from the man who also recommended the turkey become the national sym-bol? Would the maxim, “an ounce of prevention is worth a pound of cure,” be moreappropriate?

➢ The ability of the government under the Patriot Act to monitor non-citizens,such as foreign students, is much greater than for citizens. Is this appropriate, orshould most or all of the same civil liberties enjoyed by citizens also be extendedfor visiting foreign nationals?

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22D E B A T E


[D]istinguished committee members,thank you for inviting me to testify on thestate of our freedoms in post-9/11America.…My name is Bob Barr. UntilJanuary of this year [2004], I had thehonor to serve as a [Republican] UnitedStates Representative from Georgia.Previously, I served as the presidentiallyappointed United States Attorney for theNorthern District of Georgia, as an officialwith the U.S. Central Intelligence Agency,and as an attorney in private practice.Currently again a practicing attorney, Ialso now occupy the 21st CenturyLiberties Chair for Privacy and Freedom atthe American Conservative Union, andconsult on privacy matters for theAmerican Civil Liberties Union. My testi-mony today will reflect this background asI speak on behalf of both these organiza-tions, both long-dedicated to protectingconstitutional principles cherished bymany generations of Americans.

I also speak as a citizen deeply con-cerned about the erosions of basic consti-tutional liberties since the tragic anddeplorable attacks here and in New YorkCity on September 11, 2001.

The question before us today—whether the government response to thoseattacks has adversely affected our individ-ual liberties, including the right to priva-cy—could not be more important. It is atonce complex and simple. In short, theanswer is yes.

While every one of us in this roomtoday, and probably every person withwhom we come in contact, understandsthe need for government to succeed in itsresponsibility to protect our nation and

our People against acts of terrorism, as astudent and supporter of the Constitutionand its component Bill of Rights, I willnot concede that meeting this responsibil-ity must sacrifice our Rights given us byGod and guaranteed in that great docu-ment. Yet, unfortunately, the road downwhich our nation has been traveling thesepast two years, with the USA PATRIOTAct and other related government pro-grams and activities, appears to take us ina direction in which our liberties are beingdiminished in that battle against terror-ism. This need not be so, and it ought notto be so.

Traditionally and historically, except foraberrations throughout our history, thethree branches of our government—leg-islative, executive and judicial—actingtogether if not always in concert, haveacted responsibly, within the bounds oflaw and constitutional understanding.Throughout most of our nation’s short butglorious history, our citizens could restassured that government operated in a wayas to balance security needs and civil liber-ties. When all else failed, our courts wouldguarantee this result even if one or both ofthe other two branches “got carried away.”

Any law or series of laws or federal pro-grams that weakens the ability of any oneof these three branches of government toserve as a check and balance on the othertwo, is inherently problematic and oughtto be viewed with concern if not alarm.This is perhaps the fundamental concernwith the manner in which the governmenthas responded to the terrorist attacks of9/11—significantly weakening as a matterof law the power and ability of the judici-

4 Debate 22

Anti-Terrorist Legislation:Threat to Civil Liberties

BOB BARR


ary to check the exercise of executivepower; and weakening as a matter of prac-tice the ability of the legislature to conductmeaningful oversight of the same.

Our view of this problem, and how toaddress it, must be viewed from a politi-cally neutral perspective; that is, regardlessof which party maintains power in theExecutive Branch.

Each member of this esteemed commit-tee understands well the Constitution, fed-eral criminal laws, the USA PATRIOTAct, and the full panoply of other laws,regulations, procedures and activities thatcomprise the arsenal of the federal govern-ment’s response to the terror attacks of9/11. I am respectfully mindful of thecommittee’s expertise in this area, as I amaware of the constraints on the committee’stime. Even though it would be difficult totreat the entirety of this topic in a year-longlaw class, let alone five-minute testimony, Iwill therefore touch upon a few of thesepost-9/11 policies, laws, initiatives and fed-eral actions that offend traditional conser-vative values such as individual freedom,federalism and personal privacy.

Some of these, such as the controver-sial Computer Assisted Passenger Pre-Screening System (CAPPS II), offendconservative values by blindly intrudinginto the private records of law-abidingAmericans in the vain hope of that suchprivacy intrusions will somehow expose aterrorist. CAPPS II and its ilk are falsesecurity on the cheap. Airports and otherterrorist targets will only be made saferwith better, more solid, advance intelli-gence (and better coordination, analysis,evaluation and dissemination of same)on who the specific threats are—notwhich innocent person looks most suspi-cious at the gate or in a “black box” data-base. The arbitrary exercise of power byfederal employees now occurring andwhich would be greatly expanded if

CAPPS II goes into effect is of the sortthat has never heretofore withstood thetest of probable cause or even reasonablesuspicion. It ought not to be allowed todo so now.

Other programs, including certain pro-visions in the USA PATRIOT Act, impli-cate privacy but also imperil Americans’cherished right to engage in peacefuldebate about the issues of the day. Severalsections in the USA PATRIOT Act areespecially illustrative of this suppressiveattitude to security.

However, before I discuss these prob-lem provisions, I first would like to expressmy sincere gratitude to the JusticeDepartment and Attorney GeneralAshcroft. Few outside the halls of theDepartment and its component enforce-ment agencies, can truly be aware of thestresses and hard decisions required tokeep us safe.

As I have repeatedly and publicly stat-ed, my concern with the USA PATRIOTAct and other post-9/11 policies has noth-ing to do with politics or personalities—itis a matter of constitutional principle.

Indeed, much of the USA PATRIOTAct is non-controversial, and some of itquite welcome. The Act’s problems lie in arelatively few provisions, squirreled awayin the bill during the negotiations beforeits passage. While they may be few innumber, they are major in their impact oncivil liberties in America. Contrary to howsome characterize these problem provi-sions, they represent anything but “tinker-ing” or “fine tuning” of pre-existing lawand procedure.

Not only do these provisions undercutbasic conceptions of due process and priva-cy, their effectiveness is questionable. As aformer CIA official, I witnessed first-handhow much of our national security appara-tus—even our counter-terrorism and inter-national intelligence work—is built on

Anti-Terrorist Legislation 5


very basic policing methods. From yourlocal grifters to the [Osama] Bin Ladens ofthe world, bad guys are generally foundand punished using a system that includesbasic checks and balances on governmentpower and which militates against dragnetinvestigative fishing expeditions.

As an example of what not to do innational security, take Section 213 of thePATRIOT Act, the so-called “sneak andpeek” provision. In addition to ignoringfundamental Fourth Amendment privacyrights, it also greases the slippery slope thatwas clearly anticipated, but specificallyaddressed and avoided by the drafters ofour Constitution in the threefold separa-tion-of-powers system of government theycrafted so magnificently.

Specifically, Section 213 of the PATRI-OT Act statutorily codifies delayed-notifi-cation search warrants, making them easi-er to obtain. This provision (not subject toa “sunset” expiration) takes what had beenthe exception to the rule of search andseizure notice, and has made it the rule.

Prior to the passage of the PATRIOTAct, this authority—which permits feder-al investigators to break into Americans’homes and businesses and then searchtheir belongings, peruse the contents oftheir computer hard drives, and not tellthem about it until weeks or months after-ward—was allowed by courts, but only inextreme circumstances when lives or evi-dence could be lost by observing the tradi-tional Fourth Amendment “knock andannounce” convention.

By lessening the burden on prosecutorsseeking to obtain these warrants, thus giv-ing the executive branch a leg up on thejudiciary, the fear, especially among con-servatives, is that this extraordinary powerwill become ordinary. My former col-league in the House, Rep. Butch Otterfrom Idaho, reportedly took up the fightto narrow sneak and peek power after

hearing from pro-life groups who worrythe warrants would be misused, like theRICO statute [the Racketeer Influencedand Corrupt Organizations Act, 1970], toadvance the pro-abortion agenda. This ishardly the only scenario wherein thesepowers could be abused; it is frighteninglyillustrative.

The problems with another controver-sial new power, laid out in Section 215 ofthe 2001 Act, sounds similar themes as thesneak and peek issue. Under Section 215,FBI agents can obtain court orders for therelease of, among other things, businessinformation, reading histories, Internetsurfing data, medical records and evenlawful firearm purchase receipts, under astandard of evidence that equates to a“rubber stamp.”

Known primarily for its effect on accessto library records—it could be used tomonitor Americans’ book borrowinghabits—[Section] 215 is legally wide-ranging; extending, frighteningly, even tomedical and genetic information. Whilemuch has—appropriately—been writtenabout this provision’s chilling effect onlibrary users (a result that is very realregardless of how many times the govern-ment says it has or hasn’t employed thepower), the dangers in its broad reach can-not be over emphasized.

A companion provision, found inSection 505 of the USA PATRIOT Act,raises concerns similar to those raised bySection 215. Section 505 is, in somerespects even more troubling; it expandsthe government’s ability to use so-called“national security letters,” which are essen-tially administrative subpoenas, to secureaccess to a wide range of data and infor-mation on U.S. citizens. As this commit-tee knows, administrative subpoenas canbe issued without probable cause, andwithout even the “rubber stamp” judicialreview of a Section 215 search.

6 Debate 22


Of great concern to conservatives andliberals alike, is Section 802 of the Act.This section defines a new crime of“domestic terrorism.” Direct action con-servative advocates, such as those advocat-ing anti-abortion principles, fear use ofthis provision just as do direct action lib-erals, such as those protesting certain gov-ernment policies (for example, militaryuse of Vieques), because it could very eas-ily be employed as the justification to tar-get such groups. [Vieques is a small islandthat is part of Puerto Rico. Beginning inWorld War II, part of the island was setaside as a U.S. Navy target range. Recentprotests by Puerto Ricans led the Navy towithdraw in 2003, but issues remain suchas the U.S. government responsibility toclean up toxic waste and other damagecause by 60 years of naval gunfire andbombing.] This abuse of the Act couldvery easily prevail, even though no reason-able person would equate the activities ofsuch groups or advocates with “terror-ism”—such as gave rise to consideration ofthe USA PATRIOT Act in the first place.

Under 802, terrorism is defined suffi-ciently broad such that if this, or indeedany future administration were so inclined,it could use the USA PATRIOT Act toprosecute protesters as terrorists when anyreasonable person would view that asexcessive. Section 802 has a suppressive,Orwellian effect on speech and politicaladvocacy, especially direct action advocacy,arguably the most effective grassroots tech-nique to influence political change.

Furthermore, Section 802’s over-breadth implicates other sections of theUSA PATRIOT Act and even other laws.If the contemplated, so-called “Son ofPATRIOT” were ever to be enacted, itsfurther expansion of terrorism offenses,and its further reductions of due process inthose prosecutions, could all be extendedto political advocacy under 802’s overly

ambitious language. Sections 803 and 805build on 802 and expand the crime of“material support,” which now couldresult in those who harbor or concealpolitical protesters being hit with a terror-ism prosecution. [Section] 802 should benarrowed so that terrorism offenses targetterrorism, not political protest.

My fellow witnesses have addressed,and will touch on other parts of the USAPATRIOT Act. I need not belabor thespecifics of the law but I do hope its flawswill be corrected, and soon, before theyharden into a concrete barrier surroundingthe Bill of Rights. The SAFE Act, intro-duced and supported by an impressivelybipartisan group of Senators, is one com-mendable and responsible such effort.[Versions of the Security and FreedomEnsured (SAFE) Act of 2003 was referredrespectively to the House and SenateJudiciary Committees but were notreported out of either those committeesfor floor debate and votes.]

In line with the reflective approach ofthis hearing, I think it is important to noteseveral encouraging victories for constitu-tional freedoms in a post-9/11 America.The looming specter of giant, voracioussuper-databases—tasked with assessingour threat levels through the monitoring,cross-referencing and analyzing of minutedetails in the daily lives of law-abiding cit-izens—has to some degree abated. Butonly sufficiently to allow us to catch ourbreath; not nearly to the extent we canbreath easy.

Around this time last year [that is, late2002], the controversy surrounding thecitizen-spy program known as OperationTIPS (Terrorism Information PreventionSystem) reached its boiling point.Thankfully, the program was then shelved.The program, which would have recruitedpostal workers, utility workers, and manyothers with vocational or simply occasion-



al access to private residences, as govern-ment informants encouraged to report any“suspicious” activity to a central govern-ment hotline.

In what has been one of the most unex-pected “strange bed fellows” moves ofrecent years, but emblematic of how fun-damental these issues are in our democra-cy, then-majority leader Richard Armeyfrom Texas and minority leader NancyPelosi inserted an amendment in theHomeland Security Bill barring all fund-ing for Operation TIPS and like programs.

Regrettably, programs expanding federalpowers—programs such as TIPS or the sim-ilarly discredited TIA (Total InformationAwareness)—rarely die a final death, even ifCongress directs their demise. However,that at least some action is being taken is aheartening development. Hopefully, it willcontinue, especially through both the over-sight and legislative work of this committeeand its counterpart in the House.

We must remain vigilant. TIPS andTIA are being resurrected in part underother names in other departments. Forinstance, some proponents of blanket sur-veillance technologies are attempting tocircumvent Congress, the agencies or evenfederal law (such as the Privacy Act) byproviding federal taxpayer funds to statesor local governments to establish or imple-ment the programs themselves.

The MATRIX Program (Multi-stateAnti-Terrorism Information Exchange)developed in Florida with federal dollars,by a private company, to do whatCongress has already indicated it did notwant done directly through TIA, is anexample of this approach.

The Justice Department is presumablytaking similar steps with future PATRIOT-style legislation, including the DomesticSecurity Enhancement Act of 2003, alsoknown as “Son of PATRIOT Act,” or“PATRIOT II.” While it hasn’t been for-mally introduced in Congress, pieces of it

are appearing piecemeal in other seeming-ly innocuous or non-germane legislation.

Not least of Son of PATRIOT’s prob-lems, is a proposed section that would per-mit the federal government to stripAmericans of their citizenship (whethernatural-born or naturalized), if they areconvicted of “material support” for terror-ism (a charge that could apply to actionsthat citizens of common sense would behard-pressed to see as terrorism). Theframers of our Constitution deliberatelyomitted mention of such power, becausethey realized the authority to strip our cit-izenship is the ability to tailor the elec-torate to one’s advantage—a truly terrify-ing state of affairs.

In sum, the Constitution and its Bill ofRights have taken some hits in the twoyears since 9/11; hits that must be fixedvia the SAFE Act, for example. The simplefact that we appear here seeking to identi-fy and address these problems demon-strates Americans’ reticence to allowunderstandable concern over terrorism tomutate into the crippling of our mostcherished rights and freedoms.

That should give us some encourage-ment. There is a great deal of work to bedone, and further hard decisions to bemade, but there remains time to turn backthe constitutional clock and roll backexcessive post-9/11 powers before we turnthe corner into another Japanese intern-ment or, closer to our own experiences,before we witness a legally sanctionedRuby Ridge or Waco scenario [site whereconfrontations between federal law-enforcement officials and dissidents lead-ing to death on both sides].

In many other countries, it is neitheracceptable nor lawful to reflect openly onand refine past action. In America, it is notonly allowable, it is our obligation, to goback and reexamine the decisions made bythe federal government during the panicof an event like September 11th.

8 Debate 22


Of course, a country suffering throughthe immediate fallout from the worst ter-rorist attack on American soil ever is goingto make some mistakes. To err isn’t justhuman, it’s a direct result of representativedemocracy.

Case in point: myself. I voted for theUSA PATRIOT Act. I did so with theunderstanding the Justice Departmentwould use it as a limited, if extraordinarypower, needed to meet a specific, extraor-dinary threat. Little did I, or many of mycolleagues, know it would shortly be usedin contexts other than terrorism, and inconjunction with a wide array of other,privacy-invasive programs and activities.

According to a growing number ofreports, as well as a GAO [GeneralAccounting Office] survey, the JusticeDepartment is actively seeking to permitUSA PATRIOT Act-aided investigationsand prosecutions in cases wholly unrelatedto national security, let alone terrorism.

This should not be allowed to contin-ue. As my esteemed colleague in the

House, former Speaker Newt Gingrich[R-GA] wrote recently, “in no case shouldprosecutors of domestic crimes seek to usetools intended for national security pur-poses.” When we voted for the bill, we didso only because we understood it to beessential to protect Americans from addi-tional, impending terrorist attacks.

That I can stand before you and urgethe Act’s correction should serve as a les-son to lawmakers who voted for thePATRIOT Act, and supported similar ini-tiatives, that you can go back again. It’sokay to revisit past decisions. Indeed, it’san obligation.

Conservative or liberal, Republican orDemocrat, all Americans should standbehind the Constitution; for it is the onething—when all is said and done—thatwill keep us a free people and a signal lightof true liberty for the world. Thank youagain for allowing me to testify in supportof this principle.



Members of the Committee.…Thank youfor giving me the opportunity to appearbefore you today and discuss the vital toolsof the USA PATRIOT Act and the effortsof the Department of Justice in the war onterror. I am grateful to you and to thiscommittee for your strong support of theDepartment of Justice. The departmenthas had many successes in the war on ter-ror, in battling corporate fraud, in stem-ming violent gang and drug crime, and inpreserving the civil rights and liberties ofAmericans. That success has come fromthe commitment of the people of thedepartment, from strong leadership andfrom your dedication to our cause.

Since assuming my current post [asDeputy Attorney General, U.S. Depart-ment of Justice], I’ve met with hundreds ofthe department’s employees to talk abouttheir work and their efforts to help safe-guard the lives and liberties of Americans.It’s been said by many wiser than I that welive in challenging times. Fortunately, atthe Department of Justice, our people areup to the challenge. They are simply thebest of the best. These are people whochose public service and they are commit-ted to serving the cause of justice.

As I stated, the Department of Justice’snumber one priority continues to be theprevention, investigation, and prosecutionof terrorist activities against U.S. citizensand U.S. interests. Following the tragedyof September 11, 2001, Congress over-whelmingly passed, and on October 26,2001, the President signed the “Unitingand Strengthening America by ProvidingAppropriate Tools Required to Intercept

and Obstruct Terrorism Act” (“USAPATRIOT Act” or “Act”). This legislationprovided our nation’s law enforcement,national defense, and intelligence person-nel with enhanced and vital new tools toprevent future terrorist attacks and bringterrorists and other dangerous criminals to justice. Over two and one-half yearshave passed since the catastrophic attacksof September 11, 2001, but the danger is still clear. Survival and success in thisvery real war on terrorism demands thatthe Department of Justice continuouslyimprove its capabilities to protect Ameri-cans. The United States of America is win-ning this war on terrorism with unrelent-ing focus and unprecedented cooperation.For example, the Department of Justicesecured convictions of nine individuals inthe Virginia jihad case on terrorism-relatedcharges, including conspiracy to levy waragainst the United States and conspiracy toprovide material support to the Talibanand Lashkar-e-Taiba. As the AttorneyGeneral [John Ashcroft] stated, “[those]convictions are a stark reminder that ter-rorist organizations are active in the UnitedStates. We will not allow terrorist groups toexploit America’s freedoms for their mur-derous goals.”

As our work continues, a debate alsocontinues. Much of that debate surroundscivil liberties after September 11th andparticularly the USA PATRIOT Act.Good people will always disagree aboutpolicy issues, particularly when they touchon the powers of government. All citizensshould question the power of governmentand demand explanations. But because I

10 Debate 22

Anti-Terrorist Legislation:Constitutional Shield

JAMES B. COMEY


believe the USA PATRIOT Act is whollyconstitutional and just plain smart, I feelstrongly those tools should remain on thebooks for our prosecutors and agents touse. Having served as a prosecutor, I’veused many of those tools and know howvaluable they are. I firmly believe that ifthe American people understood how weuse these important provisions, their reac-tion would be the reaction I’ve gotten allacross the country, “I certainly would notwant to take that out of your toolbox.”

What the USA PATRIOT Act did wasto equip federal law enforcement andintelligence officials with the tools theyneeded to mount a seamless, coordinatedcampaign against our nation’s terroristenemies. The USA PATRIOT Act easedlegal restraints that impaired law enforce-ment’s ability to gather, analyze, and sharecritical terrorism-related intelligenceinformation. The Act also enhancedAmerica’s criminal laws against terrorism,and clarified that existing laws against ter-rorism apply to the new types of attacksplanned by al Qaida and other interna-tional terrorist organizations.

As I’ve discussed privately with a num-ber of senators and members [of theHouse of Representatives], the USAPATRIOT Act did something absolutelycritical to our national security and that isbreaking down the wall between the intel-ligence investigators responding to alQaida and other terrorist threats and thecriminal investigators responding to thosesame threats. That changed our world andhas made us immeasurably safer. The USAPATRIOT Act authorized governmentagencies to share intelligence so that acomplete mosaic of information could becompiled to understand better what ter-rorists might be planning and to preventattacks from happening. Prior law andpolicy sharply limited the ability of lawenforcement and intelligence agents to

share information, which severely ham-pered terrorism investigators’ ability to“connect the dots.” The USA PATRIOTAct, however, brought down this “wall”and greatly enhanced foreign intelligenceinformation sharing among federal lawenforcement and national security person-nel, intelligence agencies, and other enti-ties entrusted with protecting the nationfrom acts of terrorism. This increased abil-ity to share information has been invalu-able to the department in terrorism inves-tigations and has directly led to numerousarrests, prosecutions, and convictions interrorism cases.

The removal of the “wall” separatingintelligence and law enforcement per-sonnel, for example, played a crucial rolein the department’s successful disman-tling of a Portland, Oregon terror cell,known as the “Portland Seven.”Members of this terror cell had attempt-ed to travel to Afghanistan in 2001 and2002 to defend the Taliban and al Qaidaby taking up arms against United Statesand coalition forces fighting there.Utilizing sections 218 and 504 of theUSA PATRIOT Act, however, the FBIwas able to conduct Foreign IntelligenceSurveillance Act (FISA) surveillance ofone of the suspects to detect whether hehad received orders from an internation-al terrorist group to reinstate a domesticattack plan on Jewish targets that thelead defendant had once discussed and inturn, keep prosecutors informed as towhat they were learning. This gave pros-ecutors the confidence not to arrest thesuspect prematurely while they contin-ued to gather evidence on the othermembers of the terrorist cell. Ultimately,prosecutors were able to collect sufficientevidence to charge seven defendants andthen to secure prison sentences for thesix defendants taken into custody rang-ing from three to eighteen years.



Section 213 of the USA PATRIOT Actcodified and made nationally consistentan important tool by expressly authorizingcourts to issue delayed notification searchwarrants. Court-authorized delayed-notice search warrants are a vital aspect ofthe Justice Department’s strategy of pre-vention—detecting and incapacitatingterrorists before they are able to strike. Insome cases, if criminals are tipped off tooearly to an investigation, they might flee,destroy evidence, intimidate or kill wit-nesses, cut off contact with associates, ortake other action to evade arrest. Underthe Act, courts can delay notice only whenimmediate notification may result indeath or physical harm to an individual,flight from prosecution, evidence tamper-ing, witness intimidation, or serious jeop-ardy to an investigation.

Section 215 of the USA PATRIOT Actallows the Foreign Intelligence Surveil-lance Court to order production of busi-ness records. Under long standing author-ity, grand juries have issued subpoenas tomany varieties of businesses, includinglibraries and bookstores, for records rele-vant to criminal inquiries. The USAPATRIOT Act authorized the FISA Court(or a designated magistrate) to issue simi-lar orders in national security investiga-tions. And while these judicial orderscould be issued to bookstores or libraries,section 215 does not single them out.

The USA PATRIOT Act has alsostrengthened the nation’s criminal lawsagainst terrorism, providing prosecutorswith a solid foundation to pursue what hasbecome the department’s highest priority.A critical element in our battle against ter-rorism is to prevent the flow of money andother material resources to terrorists andterrorist organizations. By using thestatutes Congress provided against materi-al support of terrorism, the department

has successfully disrupted terrorist plan-ning at the earliest possible stages, wellbefore such violent plans can become real-ity. Utilizing the terrorist financing andmaterial support provisions created byCongress, the department has chargedmore than 50 individuals and obtained 28convictions. In addition, using the materi-al support statutes, the department hasobtained convictions yielding lengthyprison sentences, as in the case ofMohammed Hammoud, the main defen-dant in the Charlotte Hizballah case, whowas ultimately sentenced to 155 years infederal prison.

Lastly, prior to enactment of the USAPATRIOT Act, the federal prohibition onattacking transportation carriers was apatchwork of federal statutes with gapsthat had the potential to hamper terrorisminvestigations. Section 801 of the Act filedin these gaps by creating a new crime ofattacking a mass transportation system.Among other things, it now is illegal todestroy a mass transportation vehicle orplace a biological toxin near a mass trans-portation vehicle. Since the passage of theAct, the department has used section 801in at least two cases.

The USA PATRIOT Act also removeda number of significant legal obstacles thatprevented law enforcement from effective-ly investigating terrorism and related crim-inal activity. It has greatly improved thedepartment’s ability to disrupt, weaken,thwart, and eliminate the infrastructure ofterrorist organizations, to prevent orthwart terrorist attacks, and to punish per-petrators of terrorist acts. In the past,investigators had to waste precious timepetitioning multiple judges in multipledistricts for search warrants. Section 219of the USA PATRIOT Act, however,streamlined this process, making nation-wide search warrants available to lawenforcement in terrorism cases. Law

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enforcement already has used this author-ity on numerous occasions.

I would also like to discuss some of thecritical protections for civil libertiesencompassed within the USA PATRIOTAct and long-standing law. The Act pro-vides for ample judicial, congressional andpublic oversight to ensure that the civilrights and civil liberties of all Americansare protected. First, the USA PATRIOTAct preserves the historic role of courts byensuring that the vital role of judicial over-sight is not diminished. For example, theprovision for delayed notice for searchwarrants requires judicial approval. Inaddition, under the Act, investigators can-not obtain a FISA pen register unless theyapply for and receive permission from fed-eral court. The USA PATRIOT Act actu-ally goes farther to protect privacy thanthat Constitution requires, as the SupremeCourt has long held that law enforcementauthorities are not constitutionallyrequired to obtain court approval beforeinstalling a pen register. Furthermore, acourt order is required to compel produc-tion of business records, in national secu-rity investigations.

Second, the USA PATRIOT Actrespects important congressional oversightby placing new reporting requirements onthe department. Every six months, theAttorney General is required to report toCongress the number of times section 215has been utilized, as well as to informCongress concerning all electronic surveil-lance under the Foreign IntelligenceSurveillance Act. Under section 1001 ofthe USA PATRIOT Act, Congress receivesa semiannual report from the department’sInspector General detailing any abuses of

civil rights and civil liberties by employeesor officials of the Department of Justice. Itis important to point out that in theInspector General’s most recent report toCongress, he reported that his office hasreceived no complaints alleging miscon-duct by department employees related tothe use of a substantive provision of theUSA PATRIOT Act.

Finally, the USA PATRIOT Act fosterspublic oversight of the department. Inaddition to the role of the InspectorGeneral to review complaints allegingabuses of civil liberties and civil rights, theAct provides a cause of action for individ-uals aggrieved by any willful violation ofTitle III or certain sections of FISA. Todate, no civil actions have been filed underthis provision.

I believe that if people would take thetime to have a reasoned discussion aboutthe tools used by law enforcement in thewar on terror, they would realize that theUSA PATRIOT Act was not rushed, itactually came 10 years too late. As theAttorney General stated on November 8,2001, the Department of Justice has beencalled to “the highest and most noble formof public service—the preservation ofAmerican lives and liberty.” Now, morethan two years after the attacks ofSeptember 11, the department continuesto respond to this call with enthusiasm,and with a profound respect for this coun-try’s tradition of civil rights and liberties.

…I hope that the work we do today,and the work that we will continue to do,will help the American people understandhow vital the tools of the USA PATRIOTAct are in our efforts to root out terrorismand keep Americans safe.



THE CONTINUING DEBATE: Anti-Terrorist Legislation

What Is NewIn 2003, the Bush administration proposed the Domestic Security Enhancement Actof 2003 (dubbed Patriot Act II), which further expands the surveillance possibilitiesof Patriot Act I. The legislation did not pass in Congress, but critics charge that manyof its provisions were slipped into other legislation, such as the Intelligence Autho-rization Act for 2004.

One reason that resistance to Patriot Act II was higher than it was to Patriot Act Iwas that the public has reverted to its more traditional wariness of government surveil-lance. That was evident in a 2003 poll that asked, “Which comes closer to yourview—the government should take all steps necessary to prevent additional acts of ter-rorism in the U.S. even if it means your basic civil liberties would be violated, or thegovernment should take steps to prevent additional acts of terrorism but not if thosesteps would violate your basic civil liberties?” Of the respondents, 33% were willing tosee civil liberties violated, 64% were unwilling to see that occur, and 3% were unsure.

Where to Find MoreThere are numerous Web sites lauding and decrying the Patriot Act. For a supportiveview, go to the U.S. Department of Justice Web site at: http://www.usdoj.gov/. Selectsearch and keyboard in “patriot act.” For a critical perspective, visit the site of theAmerican Civil Liberties Union at: http://www.aclu.org/SafeandFree/. Finally, for a balanced analysis of the Patriot Act, including an exposition of the surveillance possibilities prior to it, read Nathan C. Henderson, “Impact on the Government’sAbility to Conduct Electronic Surveillance of Ongoing Domestic Communications,”Duke Law Journal, October 2002. The article is available on the Web at: http://www.law.duke.edu/journals/.

What More to DoOne key thing to do is to get involved. The Patriot II Act is pending before Congress.Decide what you think, and act on that conviction by telling your three representa-tives in Congress what your position is and why.

Also, Patriot Act I is “up for grabs.” To the dismay of the Bush administration,Congress inserted a “sunset provision” in the law. Under this clause, the act will expireat the end of 2005 unless Congress renews it. So the struggle over Patriot Act II in2003 and 2004 will flow into what promises to be a monumental political fight overPatriot I in 2005. A 2004 poll found 57% of the public wanting the act renewed,34% opposed to it, and 9% unsure.

Finally, do not just be “for” or “against” things. How would you simultaneouslygive the government the tools it needs to guard against terrorists and preserve the civilliberties the citizenry needs to guard against the government. Perhaps you and othersin your class could write an act to Protect Americans’ Traditional Rights while Inves-tigating and Obstructing Terrorism, Patriot III.

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Documents

DEBATE 22 ANTI-TERRORIST LEGISLATIONwps.ablongman.com/wps/media/objects/1824/1868749/... · ANTI-TERRORIST LEGISLATION ... (of foreign students) and also many tangible item controlled