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Hill Puts Brakes on Expanding Police Powers
http://www.washingtonpost.com/wp-dyn/articles/A46633-2001Sep29.html
By John Lancaster
Washington Post Staff Writer
Sunday, September 30, 2001; Page A06
In the days after Sept. 11, the Bush administration scrambled to write
a tough new anti-terrorism bill, with the public squarely on its
side. Polls showed that Americans overwhelmingly favor stronger police
powers, even at the expense of personal freedom. But Congress is
gently applying the brakes.
Since its introduction a week after the attacks on the World Trade
Center and the Pentagon, the administration's anti-terrorism package
has run into strong bipartisan resistance, reflecting broad concern
about its implications for the Constitution as well as lawmakers'
desire to protect their role as a check on executive branch power.
Many lawmakers fear that the bill grants too much clout to police
agencies, particularly in the realm of electronic surveillance. They
are wary of lowering barriers to the sharing of information among law
enforcement and intelligence services. They object to a provision that
would permit the indefinite jailing -- without trial -- of noncitizens
suspected of ties to terrorist groups.
"My constituents certainly want to give government the tools that it
needs, but they are not willing to give government all the power that
it wants," said Rep. Robert L. Barr Jr., a former federal prosecutor
and a conservative Republican, in a telephone interview from his
Georgia district. "They've seen these same provisions on government
wish lists several times in the past."
Lawmakers emphasize that they are eager to pass anti-terrorism
legislation -- possibly within the next two weeks -- and that they
have no quarrel with many aspects of the Bush proposal. They say they
share the administration's view that law officers chasing terrorists
should have the same powers that apply to cases involving drug
trafficking and other crimes -- something that is not always true
under current law. They agree that surveillance laws need to be
updated to take account of technologies such as e-mail.
Sen. Orrin G. Hatch (Utah), the ranking Republican on the Senate
Judiciary Committee, last week called the administration bill "a
measured and cautious response" that fits "well within the bounds of
the Constitution."
Nevertheless, the precise language of the bill has been the focus of
intense behind-the-scenes wrangling between congressional staff and
legal experts from the Justice Department and the White House. On
Wednesday, according to a Senate source, "things were in danger of
coming off track" after Justice Department officials and aides to
Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) hit an impasse
in their negotiations. Leahy and Attorney General John D. Ashcroft
were able to break the logjam during a phone conversation Wednesday
night.
Congress was more accommodating in the immediate aftermath of the
attacks, when it granted administration requests for emergency funds
and a resolution authorizing military action with hardly a whisper of
dissent. But lawmakers say the anti-terrorism bill falls into a
different category.
"This is about how do we equip our anti-espionage, counterterrorism
agencies with the tools they want while we still preserve the most
fundamental thing, which is the civil liberties of the American
people," House Majority Leader Richard K. Armey (R-Tex.) told
reporters last week. "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 that is at their
disposal."
History is also weighing on Congress. As more than one lawmaker has
remarked in recent days, Americans have sometimes lived to regret the
sacrifice of civil liberties -- such as the internment of Japanese
Americans during World War II -- in the name of national security.
"It's sort of a reminder that you can do the wrong things for
seemingly all the right reasons," said Donald A. Ritchie, the
associate Senate historian. "Lincoln said that in times of crisis, the
Constitution doesn't have to be broken, but it can be stretched. In
that sense, they're looking for some balance to make sure everything
they do is appropriate."
In stressing the need for haste, Ashcroft has repeatedly warned of
"the clear and present danger" of further terrorist attacks; he
initially asked Congress to pass the legislation in three days. It
quickly became evident, however, that lawmakers had no intention of
keeping that schedule.
Last Monday, for example, Ashcroft appeared before the House Judiciary
Committee, whose chairman, F. James Sensenbrenner Jr. (R-Wis.), had
scheduled a vote on the measure for the following morning. But
Sensenbrenner agreed to postpone the vote until this week after
colleagues on the panel rebelled, saying they needed more time to
study the bill.
In the Senate, Leahy has expressed sympathy with Ashcroft's desire for
quick action, but he also made clear his desire for significant
modifications. "We've made some progress," Leahy said at a hearing
Tuesday. "I think we can make more." Leahy's staff is working with the
White House and the Justice Department on a compromise version of the
bill; a separate effort is underway in the House.
Congress has welcomed many parts of the administration bill, including
proposals to block financial transactions among terrorist groups, beef
up border patrols and stiffen penalties for terrorists. Lawmakers also
are sympathetic to a provision that would permit the use of "roving
wiretaps" -- which cover all forms of electronic communication as
distinct from single phone lines -- in terrorism investigations; such
wiretaps are now limited to criminal probes.
But other elements of the bill have given lawmakers pause.
Some proposals, for example, would expand law enforcement access to
Internet communications -- a step that Armey and others say could
violate the privacy of innocent Web users if it is not carefully
designed.
Another would make it easier for law enforcement agencies to share
material, including grand jury testimony, with intelligence services
-- potentially opening the door to abuses such as "the savage campaign
of defamation waged by J. Edgar Hoover as head of the FBI against
Dr. Martin Luther King," Rep. Barney Frank (D-Mass.), said at the
hearing last Monday.
In a similar vein, Rep. John Conyers Jr. (Mich.), the ranking Democrat
on the House panel, said "we are deeply troubled" by a provision that
would allow prosecutors to introduce evidence in federal court that
had been obtained overseas by illegal wiretaps.
"Permitting information for illegal wiretaps performed abroad against
United States citizens to be used in the federal courts as the
administration proposes is -- well, some have said it's
unconstitutional on its face," Conyers said.
On both the sharing of investigative materials and the illegal
wiretaps, Leahy has made counterproposals aimed at accommodating the
administration's goals in a manner that limits the potential for
abuse, according to a committee aide. "In most cases it just boils
down to there being sufficient checks on these new authorities," the
aide said.
Perhaps the most contentious proposal would permit the jailing of any
noncitizen who the attorney general "has reason to believe may further
or facilitate acts of terrorism." At Tuesday's hearing, Sens. Arlen
Specter (R-Pa.) and Edward M. Kennedy (D-Mass.), who chairs the
panel's immigration subcommittee, criticized the detention standard as
unacceptably vague.
Ashcroft defended the provision, saying it would apply only to
noncitizens already subject to deportation proceedings. Persons
undergoing such proceedings are permitted an opportunity to contest
their detention before a judge. But a Senate aide disputed that
interpretation. "There is nothing explicitly stating that [a detainee]
would have immigration violation charges brought against him," the
aide said.
As a result, the aide said, someone suspected of involvement in
terrorism -- but not convicted of a crime -- could be held
indefinitely at the discretion of the attorney general or other
Justice Department officials.
Ashcroft promised the Senate panel that he would revisit the
matter. By the following day, Justice Department officials had
rewritten the detention standard, changing "reason to believe" to
"reasonable grounds to believe." The subtle modification was supposed
to satisfy lawmakers' desire for a higher threshold of evidence.
But Democratic staff on the Judiciary Committee were still not
satisfied with the changes. They planned to continue negotiations over
the weekend.
--
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