Less Secure, Less Free
Striking Terror at Civil Liberty
by Morton H. Halpern
The American Prospect magazine, November 19,
For civil libertarians there was one extra nightmare when
we finally got to sleep on that awful day of September 1l, 2001.
We knew that the Washington bureaucracy's wish list of additional
powers to conduct surveillance of Americans would not be based
on a careful analysis of what went wrong. We feared that in the
new climate, Congress would rush through the Bush administration's
request without reading the text. The result would be less liberty
but no greater capability to prevent terrorist acts. Within a
few days, civil-liberties advocates formed a broad coalition-
Organizations in Defense of Freedom- and produced a statement
emphasizing our support for necessary changes in how the government
conducts surveillance and our confidence that, with hard work
and goodwill, compromises can be found that protect both our security
and our liberty (see www.indefenseoffreedom.org).
On the eve of the press conference announcing our coalition
and its statement, an anti-terrorism bill, described as what the
attorney general wanted, immaculately appeared on Capitol Hill.
Two things about the legislation are deeply troubling: its substance
and the manner in which it was rammed through Congress. The bill
was not formally submitted by the administration, since that would
have required a review process coordinated by the Office of Management
and Budget-a procedure that would have provided an opportunity
for all concerned agencies to provide comments.
As we had feared, the attorney general demanded that Congress
pass the bill within a week and without change. He set an example
for others by not reading the bill himself. (At the only hearing
for outside witnesses held in either house, Republican Senator
Arlen Specter of Pennsylvania noted that although Mr. Ashcroft
kept asserting that the draft legislation permitted him to detain
an alien indefinitely only in deportation proceedings, the text
itself had no such limitation.) It looked at first as if the attorney
general would get his way: The bill would be taken to both floors
and passed without anyone knowing what was in it.
Then things seemed to change. With the help of his staff,
Democrat Patrick Leahy of Vermont, the chairman of the Senate
Judiciary Committee, started an intense negotiation with the Justice
Department and won agreement on some changes. In the House, Congressman
Jim Sensenbrenner of Wisconsin, the Republican who chairs the
Judiciary Committee, and Michigan's John Conyers, the ranking
Democrat, began negotiations that led to substantial improvements
in the bill. The committee held an actual markup, at which further
changes were made, and promised more revisions before the bill
went to the floor.
But all of this turned out to be a sham. In meetings with
the House and Senate leadership, Attorney General Ashcroft warned
that additional terrorist acts were imminent and that Congress
would be to blame if the bill were not passed immediately. This
was nonsense, but Congress could not withstand such pressure.
In the Senate, an all-night negotiation between leaders of
the Senate and committee leaders and their staffs led to a bipartisan
bill that took back most of the concessions previously made to
Senator Leahy and ignored the House compromise version. The majority
leader, Senator Thomas Daschle of South Dakota, then took this
draft to the floor and sought unanimous consent to bring up the
proposal and pass it without debate or amendment. Only Senator
Russell Feingold, a Wisconsin Democrat, objected, and he was allowed
to offer three amendments. These were quickly tabled (rejected)
on the motion of Senator Leahy and the bill passed with only Senator
Feingold voting no.
Then it was the turn of the House. After another all-night
drafting session, a text was produced that had only minor changes
from the Senate-passed bill. It was rushed to the floor and passed
with only three Republican and 75 Democratic votes in opposition.
Thus by Friday, October 1z, both houses had passed nearly identical
anti-terrorism bills. Despite the assertion that the powers granted
by the law were urgently needed, the Congress headed off for the
weekend without leaving conferees behind to reconcile the two
versions, and later the House stopped working for a week in the
face of concerns about anthrax without completing the final language.
All of us in this country - civil libertarians included -
understand that we face a ruthless and diabolical opponent who
flies civilian airplanes into buildings and is dedicated to killing
Americans at home and abroad. Law-enforcement officials and intelligence
agencies do need new authority, and we may well have to permit
greater intrusions into our privacy in order to prevent horrendous
acts of terror.
But the administration's bill was not developed in response
to the events of September 1l or by an analysis of why there was
such a monumental intelligence failure: Its measures were grabbed
off the shelf and in many cases had nothing to do with what happened
on that unforgettable Tuesday. Moreover, the administration resisted
every reasonable effort to find an accommodation between the requirements
of security and those of liberty.
During the course of the negotiations, participants concerned
about protecting civil liberty as well as security put forward
a number of important suggestions, none of which were taken seriously.
For example, the administration was asked to identify its
urgent needs so that Congress could provide emergency interim
authority pending examination of more-permanent solutions. Officials
responded by hinting that witnesses before the grand jury investigating
the September 1l terrorist acts were providing information that
should urgently be passed to the Central Intelligence Agency or
to foreign governments to prevent imminent terrorist acts but
could not be because existing law bans such sharing of information.
It is true that a literal reading of the grand jury secrecy provisions
seems to allow disclosure to outsiders only for purposes of "law
enforcement." But surely a judge would find that the courts
have inherent power to order disclosure to save lives. Even so,
legislative leaders offered to immediately pass a provision allowing
intelligence officials dealing with international terrorism to
receive pertinent information disclosed by any grand-jury witnesses
concerning September 1l or other terrorist events. The administration
expressed no interest.
Moreover, most of the administration's provisions were not
limited to international terrorists seeking to kill or harm Americans;
they covered "terrorists" loosely defined. Critics of
the bill were willing to accept most, if not all, of the proposed
expansions of surveillance powers-for both intelligence and criminal
investigations, including the plans for sharing information across
that line-as long as the new powers were limited to terrorism
and foreign-intelligence information as carefully defined in the
Foreign Intelligence Surveillance Act of 1978 (FISA). The administration
bitterly resisted any effort to restrict the bill as a whole or
any specific provisions (including relaxing the rules of grand
jury secrecy) to this situation.
Critics repeatedly sought meetings with executive-branch officials
to explain concerns and seek common ground. In almost every case,
such meetings were refused. In the past, they have led to agreements
between civil-liberties groups and administrations of both political
parties-for example, on legislation creating the FISA court and
exempting certain CIA files from the Freedom of Information Act.
Why does this matter? While this is not the place to rehash
all the past abuses of the FBI and the intelligence agencies,
it is worth remembering that powers granted with one purpose in
mind are often used for others. Thus, antiwar protestors have
been investigated as agents of a foreign power and abortion-clinic
protestors have been monitored under RICO, the Racketeer Influence
and Corrupt Organizations Act. The definitions in this new bill
will permit groups such as Greenpeace to be investigated as terrorist
organizations and supporters of the political activities of the
African National Congress to be spied on or incarcerated as "terrorists."
Anyone protesting the attacks on Afghanistan, especially noncitizens,
could be investigated under a counterintelligence rubric.
All in all, what is so troubling about the bill? Basically,
it breaks down the distinction between foreign-intelligence investigations
and criminal investigations by permitting-indeed, encouraging-the
sharing of information between intelligence investigations and
criminal ones. It also vastly expands the power of the government
to gather information in an intelligence investigation and then
proceed under the veil of intelligence even if the primary purpose
is to gather information for a criminal investigation.
In order to understand why this is a problem, one must understand
the origins of FISA, legislation that authorizes the government
to conduct investigations that invade areas protected by the Fourth
Amendment (which prohibits unreasonable searches and seizures)
without the normal probable-cause requirements. FISA originated
in a request from the Ford administration for authority to conduct
electronic surveillance for national security purposes. The government
explained that it needed to gather foreign intelligence information
even when no crime was suspected, and was unwilling to provide
after-the-fact notice to a subject that it had conducted a surveillance.
Congress debated long and hard about FISA. It passed legislation
that was substantially different from the original draft, which
had been submitted with the usual demand that it be enacted immediately,
without changes. In the end, Congress and the administration struck
a deal that had the support of some civil libertarians, including
me (at the time, I spoke for the ACLU on these issues).
The basic compromise was this: Congress gave the executive
branch the authority to conduct electronic surveillance for national-security
purposes under a lesser standard than the probable cause that
it would need to gather evidence of a crime. Equally important,
the government was given permission to keep the surveillance secret.
In return law enforcers agreed to judicial supervision and provisions
to minimize the interception of non-germane information. Most
important, it was agreed that the government would not use the
FISA procedures if its investigators were conducting a criminal
inquiry but would switch to the usual criminal procedures. The
agreement also included a set of definitions that prevented the
government from conducting intelligence investigations of Americans
unless there is a relatively tight nexus to criminal activity,
and it provided a high barrier to the dissemination of information
about these subjects. Subsequently, in 1994 Congress broadened
FISA to include physical searches even against the homes of Americans
without a warrant, without advance knock or notice, and without
ever informing the individual that the government surreptitiously
acquired information from his or her home.
It is from this perspective that the proposed amendments to
FISA must be examined. The most disturbing provision in the administration
bill is the one permitting the government to initiate a FISA surveillance
even when the investigation's primary purpose is to gather evidence
for a criminal prosecution. As noted, FISA granted special surveillance
authority for times when the government was gathering foreign
intelligence rather than seeking to indict individuals for crimes.
To now permit these procedures to be used in a criminal investigation
would almost certainly be unconstitutional and would certainly
be dangerous, because it would allow the government to avoid all
of the safeguards that the Fourth Amendment and existing criminal
law provide. The executive branch will be able to use FISA to
conduct surveillance whenever it alleges that the targets were
agents of a foreign power, thus circumventing the notice and probable
cause requirements of the Fourth Amendment. In situations not
covered by the Fourth Amendment, the government could use FISA
procedures to compel disclosure of business records, telephone
logs, and other sensitive information, including details about
people that it does not suspect of being agents of a foreign power.
Equally troubling are the provisions that permit the government
to share information from grand jury proceedings and from criminal
wiretaps with intelligence agencies. These sections use a very
broad definition of foreign intelligence that is designed explicitly
to permit the sharing of information about the First Amendment
activities of American citizens. As with the other sharing provisions,
this new and sweeping authority is not limited to true terrorism
investigations but covers a much broader range of activity.
The immigration provisions of the bill, although improved
through negotiation, still sweep within the definition of terrorism
individuals who provide support to a group designated as a terrorist
organization or viewed as such by the attorney general-even if
the organization does not operate in the United States or target
Americans, and even if the support is for humanitarian purposes.
It also covers people who speak out in favor of "terrorism"
in any circumstance; this could include insurrections or paramilitary
operations that the United States government supports. Noncitizens
who fall within these categories could be detained indefinitely.
Most alarming to supporters of democratic principles was the
way the bill was enacted: the absence of public hearings, of any
markup in the Senate (coupled with the sham markup conducted in
the House), of meaningful floor debate, of committee reports that
explain the bill, and of a real conference between the two houses.
One can only hope that Congress will conduct rigorous oversight
of the new powers it is granting to the president-and that it
will refuse to follow the same procedures or to be intimidated
when the next anti-terrorism bill is sent to Capitol Hill.
MORTON H. HALPERIN is a senior fellow of the Council on Foreign
Relations. He served in three presidential administrations and
chairs the advisory board of the Center for National Security