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October 2, 2001
CONGRESS
Negotiators Back Scaled-Down Bill to Battle Terror
http://www.nytimes.com/2001/10/02/national/02RIGH.html
By NEIL A. LEWIS and ROBERT PEAR
WASHINGTON, Oct. 1 - Democratic and Republican negotiators in the
House reached agreement today on a bill that would give law
enforcement officials expanded authority to wiretap suspected
terrorists, share intelligence information about them and monitor
their Internet communications.
But the compromise bill also makes the wiretap authority temporary and
omits or scales back some of the measures the Bush administration
sought, notably the authority to detain immigrants suspected of
terrorism indefinitely without charges. The administration had been
pressing for far more extensive changes in the law and had hoped its
proposals would move with little debate through a Congress eager to
respond to the Sept. 11 terrorist attacks on the World Trade Center
and the Pentagon.
The proposal for indefinite detention of immigrant suspects engendered
the greatest opposition from civil libertarians both inside and
outside Congress. Under the plan agreed to this evening by
Representative F. James Sensenbrenner Jr., the Wisconsin Republican
who is the chairman of the Judiciary Committee, and Representative
John Conyers Jr. of Michigan, the committee's ranking Democrat, the
government could detain an immigrant suspected of terrorism for seven
days without bringing charges.
The two members of Congress and their staffs had worked over the last
several days to forge a compromise after several committee members
last week, both Democrats and Republicans, complained quietly but
insistently that the administration's legislative package expanded the
government's powers at the expense of long-established civil
liberties.
John P. Feehery, a spokesman for Speaker J. Dennis Hastert, said
Mr. Hastert hoped that the House would soon act on the proposed
compromise. Richard A. Gephardt, the Democratic leader in the House,
was in New York today viewing the damage to Lower Manhattan and had
not yet reviewed the final bill. But his spokesman, Erik Smith, said
Mr. Gephardt had great confidence in Mr. Conyers's ability to
negotiate a compromise.
A senior Bush administration official tonight said that the House
compromise proposal was encouraging because it demonstrated bipartisan
support for much of the White House's wish list. But the official, who
spoke on the condition of anonymity, also said some of the elements
were troubling, especially a "sunset" feature that would have the
expanded wiretap powers expire in two years unless explicitly renewed
by Congress.
Senior Congressional aides said today that the expiration feature was
crucial for a bipartisan consensus. One aide said that it was easier
for some members to accept potential infringements on civil liberties
if they were temporary.
Further complicating the administration's hope to quickly enact broad
changes in criminal law, the Senate is moving along a separate track
on its own antiterrorism legislation; that bill is not expected to be
ready for a floor vote for at least two weeks. Senator Patrick
J. Leahy, the Vermont Democrat who is the chairman of the Judiciary
Committee, has made it plain he will not be rushed into accepting many
of the administration's proposals.
At the same time Congress is deliberating changes in the antiterrorism
laws, its members are moving swiftly to enact other measures in
response to the attacks. Support is building in Congress for proposals
to permit military personnel to assist in patrolling the nation's
borders, to triple the number of agents on the Canadian border, to
limit student visas, and to spend emergency funds for additional moves
to tighten immigration rules and procedures.
Under the antiterrorism bill that will be formally introduced in the
House on Tuesday and could be voted on as early as next week, a
foreigner could be detained for up to seven days before being charged
if the authorities had "reasonable grounds" for suspecting that person
of terrorism. The person detained could also seek a review of that
determination in the federal trial court in Washington. The
administration had sought a lesser threshold for detention, that of
the authorities having "reason to believe" the person was involved in
terrorism, a designation that was not designed to be subject to court
review.
The bill would also allow only the attorney general or the
commissioner of the Immigration and Naturalization Service to deem
that there were reasonable grounds to label an individual a suspected
terrorist.
Also under the bill, officials would be able to obtain authority to
wiretap an individual suspected of terrorism, not just a specific
telephone as they must do now. Law enforcement officials have
complained that the wiretap laws, written when all telephones were
wired, do not provide for terrorists using and discarding cellphones.
The bill would also put e-mail communications on a level with
telephone communications. It would allow the authorities to use an
easily obtainable subpoena to get from Internet service providers
records of to whom and when e-mail messages was sent or received by a
suspect. Currently, the authorities can obtain by subpoena the
equivalent, called a pen register, from the telephone company, which
discloses the time and destination of phone calls.
The actual phone conversations cannot be obtained by authorities
without a search warrant, which requires a demonstration to a judge of
probable cause that a crime has been committed; the same is true for
e- mail messages. The administration had sought wider authority to
monitor e-mail correspondence.
The House negotiators dropped an administration request that schools
be required to disclose information about foreign students to
investigators who said they had a reasonable need to obtain it. The
compromise bill also omitted a provision that would have allowed
officials to use evidence gathered abroad even if it was obtained by
methods considered unconstitutional in the United States.
In devising a compromise, Congressional officials said, the
negotiators were also concerned that the definition of terrorism in
the administration proposal was too broad and would allow the
authorities to treat crimes more harshly by deeming them acts of
terrorism. As a result, the bill lists many crimes like hijacking and
destruction of government property as qualifying as terrorist actions
only if they were committed with a motive to influence or change the
government.
The bill also narrows the definition of computer crimes that could be
deemed potential terrorist acts. Negotiators said the administration's
version would have given wide latitude to officials to treat all
computer hacking incidents as terrorism. The bill now requires that
the hacking be part of an effort to gain access to national security
information, cause damage to a secure computer or obtain information
from a secure computer system by threaten to damage that system.
The bill would prohibit intelligence officials from sharing
information they obtained with anyone but law enforcement authorities
in the federal government.
Representative Bob Barr, a conservative Georgia Republican, said
tonight that he had not yet dropped his opposition to the legislation
because he still had serious concerns. Mr. Barr, a former federal
prosecutor, has described the legislative efforts as giving too much
power to law enforcement authorities.
The House bill has been given the title "Provide Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001" to allow it
to be called by an acronym, the Patriot Act of 2001.
On the other side of the Capitol, lawmakers drafting the antiterrorism
bill there have tentatively agreed on a plan to triple the number of
immigration inspectors on the Canadian border. The agency's own
analysis concludes that the current contingent of 300 Border Patrol
agents is inadequate for the 5,500- mile boundary.
Many lawmakers support a budget increase for American embassies and
consulates, so they can more thoroughly investigate the background of
people applying for visas. Such investigations now are often
perfunctory.
Senator Dianne Feinstein, Democrat of California, has proposed major
changes in the foreign student visa program, including a six-month
moratorium on issuing new visas, comprehensive background checks on
all foreign students and new requirements for schools to verify
students' compliance with the terms of their visas.
Colleges and vocational schools are vehemently opposed to her
proposal, saying it would disrupt their operations without
significantly reducing the risk of terrorism.
------------------------------------------------
House Bill Would Expand Federal Detention Powers
http://www.washingtonpost.com/wp-dyn/articles/A55410-2001Oct1.html
By Dana Milbank
Washington Post Staff Writer
Tuesday, October 2, 2001; Page A01
House negotiators yesterday agreed to give the government new
authority to investigate and detain terrorist suspects, a bipartisan
compromise that denied the Bush administration some powers it sought
but that was assailed by civil libertarians as a blow to American
values.
Under an agreement reached by Judiciary Committee Chairman F. James
Sensenbrenner Jr. (R-Wis.) and the ranking Democrat, Rep. John Conyers
Jr. (Mich.), authorities would be able to hold any foreigner suspected
of terrorist activity without charges for as long as a week. The
anti-terrorism legislation would also expand the government's
wiretapping and Internet surveillance powers in terrorism cases.
The 122-page House legislation, dubbed the "Patriot Act," is due to be
considered by the committee Wednesday and by the entire House next
week.
The House compromise will become a framework for negotiations with the
Senate and the administration over an expansion of police powers
following the Sept. 11 attacks on the World Trade Center and the
Pentagon. David Carle, spokesman for Senate Judiciary Committee
Chairman Patrick J. Leahy (D-Vt.), said the Senate and House bills
"will largely complement each other."
He said Senate Democrats and Republicans "negotiated through the
weekend and are close to an agreement over here."
White House press secretary Ari Fleischer said, "The administration
has been working very closely with members of the House, as well as
with Chairman Leahy and others in the Senate who have just
jurisdiction over this."
The Bush administration sought new anti-terrorism legislation in the
aftermath of the attacks, saying it was necessary because of what
Attorney General John D. Ashcroft described as the "clear and present
danger" of further terrorist attacks.
The agreement yesterday came as more than 100 members of Congress
traveled to New York to view the devastation at the World Trade
Center.
In the thorniest matter faced by negotiators, the government would be
allowed to detain any foreigners suspected of terrorist activity for
up to seven days without filing charges or giving them an opportunity
to ask a judge to release them. That would apply both to legal
immigrants and those in the country illegally.
After that time, the government would either need to file criminal
charges, begin deportation proceedings or release the suspects.
Attorney General John D. Ashcroft had sought detention powers without
any particular time limit.
Even after the seven days, Ashcroft would have power to detain
foreigners until they are deported as long as he has "reasonable
grounds to believe" that they may be involved in terrorism.
Ashcroft had sought broader language, allowing detention if there was
"reason to believe" the person was involved in terrorism. Only the
attorney general or the Immigration and Naturalization Service
commissioner would certify such detentions, which could be reviewed by
courts.
Jeanne Butterfield, executive director of the American Immigration
Lawyers Association, called the compromise "a significant improvement"
over Ashcroft's request.
But Laura W. Murphy, director of the American Civil Liberties Union's
Washington office, said the compromise was "inadequate" and "confers
unprecedented detention authority on the attorney general."
The House compromise would also give the government multiple wiretap
powers in terrorism cases so that surveillance would be attached to an
individual rather than a particular telephone.
It would also make it easier for law enforcement officials to obtain
wiretaps. Under existing law, wiretaps can be obtained under the
Foreign Intelligence Surveillance Act if the primary purpose for
getting the information is intelligence, rather than criminal
enforcement. Ashcroft had sought to use the FISA provision if
intelligence gathering was merely "a purpose." The proposed House
legislation would compromise with "a significant purpose."
The wiretap provision would expire in December 2003; renewing it would
require congressional approval.
Law enforcement officials would be able to get court orders allowing
them to retrieve records of e-mails and other electronic
communications, not just telephone records.
Such orders would not entitle investigators to review the content of
e-mails and telephone calls, however, and electronic evidence obtained
illegally would be unusable.
The legislation also grants Ashcroft's wish to remove the statute of
limitations from a number of terrorism offenses, while increasing
maximum penalties for terrorism-related crimes and expanding offenses
to include support or expert advice to terrorists.
Those gathering intelligence information would now be allowed to share
their information with criminal investigators.
The proposed legislation would drop provisions Ashcroft had sought
that would allow certain intelligence information gathered overseas to
be admitted in U.S. courts even if the methods used to obtain the
information would cause the evidence to be thrown out of court if it
had been gathered domestically.
Also removed were Ashcroft provisions that would have allowed
authorities to search a suspect's home without notification that they
had searched, and provisions allowing the release of student records
to authorities.
The committee, while honoring many of the requests Ashcroft made,
modified some of those provisions.
The lawmakers backed a list of crimes that Ashcroft wanted
characterized as terrorism but added language that such crimes must be
"calculated to influence or affect the conduct of government by
intimidation or coercion or to retaliate against government conduct."
Prosecutors would also have more ability to share grand jury
information with other government officials investigating terrorism,
but they would need court approval to do so.
Ashcroft would also have expanded ability to obtain business records
of suspects, but he would not have the power he sought to do so
without going to court first.
To protect civil liberties, the House legislation would create a new
inspector general's office in the Justice Department for civil rights
and civil liberties; it would be responsible for handling complaints
and reporting to Congress.
The proposal would also increase, to $10,000 from $1,000, the damages
private citizens could seek from the government for civil liberties
violations.
Staff writer John Lancaster contributed to this report.
-------------------------------------------------
Anti-Terrorism Proposals
Halls of Justice: A Weekly Look
Inside the Justice Department
http://abcnews.go.com/sections/us/HallsOfJustice/hallsofjustice.html
By Beverley Lumpkin
W A S H I N G T O N, Sept. 28
One of the most controversial sections of the attorney general's
proposed changes would fundamentally alter the basis for issuing
warrants for electronic surveillance in national security cases.
Even a top Justice official acknowledged to reporters that if the
desired change were made it would be a major shift, but his point was
that the world is a very different place now from when the law was
passed, and the change is now justified by the scary
terrorist-infested world in which we live.
First a little background. The Foreign Intelligence Surveillance Act
of 1978 was passed in the wake of the revelations of CIA abuses, and
"black bag jobs" or break-ins, done in the United States in the name
of national security. FISA established a special court to review
government requests for electronic surveillance to gather intelligence
in national security cases.
Unlike so-called Title 3 wiretaps in criminal investigations, FISA
wiretaps are more intrusive. For example, for the government to "go
up" on a target in a criminal case, it must show a judge probable
cause that the target is engaged in a criminal act, and that the
phone to be tapped is actually being used in the course of the crime.
However, for a FISA tap, the government need only show that the
target is an agent of a foreign power, and uses the phone - without
needing to prove the phone is used in the act.
Because a FISA warrant is so intrusive, the law requires a
certification from the FBI director, an affidavit from the
investigating agent, and an application signed by the attorney
general, all to be submitted to one of the seven judges on the FISA
court.
For more than 20 years the whole system has been based on the premise
that FISA is used when foreign intelligence-gathering is the "primary
purpose" of the investigation.
Because of the way that has been interpreted, there has been a sort
of wall erected at Justice and the FBI between the
intelligence-gathering process and criminal investigations.
Certainly there have been cases that began as national security and
ended up with criminal charges being filed, and information collected
from a FISA warrant was even entered at trial. But that was deemed
OK, so long as the original, primary purpose of the warrant was
intelligence, not criminal.
But the administration has proposed to change that standard, stating
instead the request is supportable when intelligence-gathering is "a"
purpose. As one former Justice official noted, this is a "major,
major change!" He said, this means "you can run FISAs to assist your
criminal investigation."
The current senior Justice official complained that because of the
way the law has been interpreted, the department has had to make a
choice. "This division between law enforcement and intelligence makes
no sense," he asserted.
He said at this point if a FISA turned up evidence of a crime, and
the department moved to prosecute, the judge would likely make
investigators shut down the intelligence-gathering.
But with what he called this "comparatively minor change" of removing
the requirement of primary purpose, investigators "could prosecute
criminal cases as they arise but continue to monitor" the
intelligence source to be sure of what else the bad guys might be up
to. "You could continue the FISA without having to bring it down
simply because you've generated some criminal cases."
He was not much worried about that old wall; "we're reconfiguring the
wall to be more realistic."
He argued the world is a different place from 1978; when FISA was
passed it was mainly thought of in terms of espionage. But now we
have to contend with national security threats that are also violent
crimes.
A very senior government official who has dealt extensively with FISA
told me he's opposed to this change, which he contended has the
"potential for a lot of mischief." He said the wall is working, and
one proof of that is that the FISA court has never denied an
application. He asked rhetorically, do you want to have criminal
investigators using FISA with lower coverage to lock people up?
Expanding his point, this official maintained, if you have as a
primary purpose protecting the nation, then it's ok if you later lock
people up. "We're gathering information to protect the nation; if in
the course of that we lock people up, so be it." But the primary
purpose must remain national security.
After the bombings in East Africa, he said, FISA warrants were issued
very quickly - the purpose was to see what else they were going to
do, if other embassies might be in danger, etc.
Later at the trials, some of the most critical evidence introduced
was the stuff gathered in those first FISAs. But the important point
was that their primary purpose was intelligence-gathering. At
hearings this past week before House and Senate judiciary committees,
a number of items in the package ran into considerable concern from
members of both parties. But it's clear that changing the primary
purpose standard was one of the biggest problems.
As Sen. Arlen Specter, R-Pa., told the attorney general, "I think
that we really have to face up squarely to the point that we change
'primary' to 'a,' or even if you change 'primary' to 'significant,'
[a compromise suggested by Sen. Diane Feinstein, D-Calif.] you are
deviating from a statute which has been in existence a long time and
subject to a lot of interpretation ... And if that's what you want,
we're going to have to scrutinize it very, very closely."
Whatever happens on this particular provision, it's clear the package
that Attorney General John Ashcroft had perhaps foolhardily
proclaimed he wanted passed last week may not make it through even
next week.
An aide to Senate Judiciary Chairman Patrick Leahy, D-Vt, said that
at mid-week things were "in danger of going off track." But Leahy and
Ashcroft spoke and afterwards directed their staffs to reach a
compromise.
He said that on the House side the members are largely negotiating
among themselves, republican vs. democrat; but in the Senate, the
members are negotiating with the administration.
FISA Problems With Bin Laden Investigation?
On Sept. 19, in the course of a story about the hijackings and
whether more flights might have been originally planned, the New York
Times dropped a bit of a bombshell. The story said the FBI's efforts
to survey foreign terrorists "had been troubled in recent months,
prompting an internal inquiry into possible abuses."
The piece asserted that "the inquiry had forced officials to examine
their monitoring of several suspected terrorist groups, among them al
Qaeda, the network led by Osama bin Laden ..." And some officials
were said to have maintained that, "the inquiry might have hampered
electronic surveillance of terror groups."
Also about 10 days ago, National Public Radio reported that FBI
agents were complaining that prior to the Sept. 11 attacks, they had
wanted FISA warrants to go up on bin Laden associates, but the
Justice Department had turned them down.
I've talked to several top officials with knowledge of these events
and here's what they say really happened.
Royce Lamberth, a district court judge in Washington who also serves
as the chief judge of the FISA court, wrote to the attorney general
in March expressing concern about the search mechanism being
implemented by one FBI official.
A search mechanism is required to prove to the FISA judge that the
proposed target of a FISA warrant is not and has not been the subject
of a criminal investigation. The reason for doing such a painstaking
search is that it's a way of ensuring that the true purpose of the
warrant is intelligence-gathering, not to aid a criminal
investigation.
But unfortunately, this FBI guy had been using some boilerplate
language that as it turned out was not adequately revealing criminal
investigations.
It's true that an inquiry was begun, but that's S.O.P. whenever a
judge makes a complaint. But the cases in question had nothing to do
with al Qaeda and did not in any way impede anything investigators
wanted to do. As for the NPR assertions, one very senior official
speculated it was probably some street agent who doesn't know how
FISA operates, grousing about something he didn't understand.
There have not been any denials of coverage, including anything
related to bin Laden. The FBI official is no longer using
standardized language, but will particularize each request. Everybody
agrees his earlier mechanism was flawed, but that there was no
intention to deceive the court. One participant said, "all of those
questions were ultimately answered and satisfied."
Ashcroft and Lamberth had met on the attorney general's first day in
office. Newly sworn in, the attorney general had just learned the bad
news about Robert Hanssen, the FBI agent who had spied for Moscow for
so many years. And ironically, the judge warned the attorney general
during that very first meeting that of all the problems and all the
headaches that he might face, the one that could get him into the
most trouble would be FISA.
If you have any doubts, ask Janet Reno about Wen Ho Lee.
Beverley Lumpkin has covered the Justice Department for 15 years for
ABCNEWS. Halls of Justice appears every Friday.
--
Mind Control: TT&P --> http://www.datafilter.com/mc
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